OAH 16-1800-21755-2
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF
HUMAN SERVICES
|
In the Matter of the Revocation of the Child Care License of Darla Fox |
FINDINGS
OF FACT,
CONCLUSIONS
OF LAW,
AND
RECOMMEDATION
|
This matter came before Administrative Law Judge Manuel J. Cervantes (ALJ) on a Notice of and Order for Hearing, filed January 10, 2011.
Margaret M. Horsch, Assistant Dakota County Attorney, represents Dakota County Social Services (County) and the Minnesota Department of Human Services (Department). Richard J. Sheehan, Attorney at Law, represents Darla Fox (Respondent). The matter was heard on February 10 and was continued to March 30, 2011 for completion. The parties submitted written closing arguments and replies. The record closed on May 2, 2011, upon receipt of the last reply.
Did the
Department establish reasonable cause to properly revoke the child care license
of Darla Fox based on her failure to comply with the requirements of applicable
If so, did the Respondent demonstrate by a preponderance of the evidence that she was in full compliance with the laws and rules alleged to have been violated.
The
ALJ concludes that the Department established reasonable cause to revoke Respondent’s
license and that Respondent failed to demonstrate that she fully complied with
the applicable laws and rules. The ALJ
recommends that the Order of Revocation be affirmed.
Based on the evidence in the hearing record, the ALJ makes the following:
FINDINGS OF FACT
1. On August 2, 2007, Dakota County Human Services received a complaint that there were unattended young children at a puppet show at a local park performance. The performance was just breaking up when the child care Licensor (Haenke) arrived at the park. There were two school age children each carrying a toddler. Haenke approached the children to inquire if they were affiliated with a child care program. The children said, “Darla’s” [the Respondent]. The children then pointed out Respondent’s house which was one house away from the park. They acknowledged that they were at the park without adult supervision.[1]
2. Haenke then followed the children to Respondent’s home and spoke with the Respondent. Haenke explained the supervision rule which requires that a licensed child care provider must be within sight or hearing of young children so as to be able to intervene to protect toddlers or to provide assistance to school-aged children. Haenke then learned from Respondent that she had been providing illegal unlicensed child care for 30 years.[2]
3. Respondent had eleven children from eight different families in her care on August 2, 2007. Haenke explained that because she was caring for children from more than one unrelated family, Minnesota law required that she be licensed or be subject to a “police citation” and a fine up to $850.[3]
4. On August 6, 2007, Respondent called Haenke and indicated that she wanted to get licensed. Respondent attended a child care licensing orientation that fall. At the orientation, Respondent was provided training in child care responsibilities and was given a complete set of child care laws and rules, as well as a user-friendly child care handbook. She was also provided with various checklists to assist in her compliance obligation with the child care laws and rules.[4]
5. Respondent was licensed in February 2008. Respondent was granted a Class A license which permitted her to care for up to ten children of various ages, from infant to school age.[5]
6. Haenke conducted a “technical assistance visit” in June 2008. This was an opportunity to review with Respondent the requirements of a child care program. While Haenke saw program violations, she was there to provide technical assistance and to help with compliance. She chose not to issue a correction order on that visit.[6]
7. On December 12, 2008 in preparation for relicensing, Haenke revisited Respondent. That same date, Haenke issued Respondent a correction order.[7]
8. Haenke noted that Respondent thought that some child care requirements were “ridiculous” and didn’t want to burden her families with the paperwork requirements. An example of this was the requirement that a family dentist’s telephone number be available in the event of an emergency.[8] Haenke felt that Respondent was resistant to some of the rules but wanted to continue providing child care. Haenke explained to Respondent that the purpose of child care regulation is to assure the health and safety of children in a child care program.[9]
9. In September 2009, Haenke was reassigned to another unit in the County. Ms. Elrasheedy (Elrasheedy) was assigned Haenke’s files. On December 18, 2009, Elrasheedy made an unannounced visit to Respondent’s program. The purpose of the visit was not to conduct a comprehensive review but rather to familiarize herself with Respondent’s program and to observe Respondent in her role as care provider. Upon entering the home, Elrasheedy observed that there was an infant asleep on a couch. She looked around the room and saw three cribs, each occupied by a toddler, but she did not see a crib for the infant. The Respondent indicated that she had a crib for the infant but did not produce it when asked by Elrasheedy. An infant asleep on a couch is a violation of the Sudden Infant Death Syndrome (SIDS) rule. An approved crib is required for each infant.[10]
10. Elrasheedy also noted that there was no gate at the entrance leading to the upper level of the home. The main level of the home was licensed but a gate was required because the upper level bedrooms were not licensed. During their discussion, Elrasheedy noticed that a child was soiled and pointed this out to Respondent. Respondent proceeded to change the child’s diaper on the couch and placed the soiled diaper next to her on the couch. Respondent did not use a non-absorbent pad to diaper the child; she did not use a bleach solution to clean the diapering area; and she did not wash her hands when finished. These are violations of the sanitary rules. Elrasheedy pointed these things out to Respondent.[11]
11. Elrasheedy requested the name of a child in her care but Respondent could not remember the child’s last name. Respondent retrieved her file. Elrasheedy offered to look for the name in her file while Respondent washed her hands. Contained in the file were both the County’s copy and Respondent’s copy of the December 2008 Haenke correction order. Respondent had not filled out either form. Because Respondent had not returned the completed form with corrections, Elrasheedy was required to verify whether the items on the 2008 correction order were corrected.[12]
12.
Upon inspecting the bathroom area, Elrasheedy
saw toxic items and personal care products still accessible to children when
they used the bathroom. She also noticed
that the hall closet was open and it contained personal care products and
cleaners that were also accessible to the children. Access to toxic items by the children
violates
13. Upon reviewing Respondent’s paperwork, Elrasheedy noted that there was no documentation for the cribs Respondent was using. The rules require that before a crib is put into use, the care provider must verify that it is not on the United States Consumer Products Safety Commission’s (safety commission) unsafe cribs list. If it is not, the crib may be used but the care provider must inspect the crib monthly to verify that screws are tight and that it is free from damage or defect. The verification with the safety commission and monthly inspections must be documented and available for inspection.[14]
14. As they were discussing the required crib documentation, Elrasheedy became aware that there was a toddler playing in the back play area away from the living room where they were seated. The child was out of sight or hearing of Respondent. When Elrasheedy brought this to the attention of Respondent, Respondent told a three year old to go get the other toddler from the back area. Elrasheedy advised that it was inappropriate to send a child to do Respondent’s responsibilities. Respondent’s inability to view or hear the toddler in the back was a violation of the supervision rule. Respondent herself then went to the back to retrieve the toddler.[15]
15. Elrasheedy left Respondent’s program with concerns about the lack of sanitary practices, the lack of interaction between the toddlers in the cribs and Respondent, and the fact that many violations included on the 2008 correction order, particularly, the children’s access to toxic materials, continued to exist in December 2009.[16] Based on these factors, Elrasheedy issued a correction order on December 18, 2009.[17] On December 31, 2009, she recommended to the Department that Respondent be placed on a conditional license.[18]
16. In January, 2010, Elrasheedy received a call from Respondent indicating that she had made the corrections cited in the order. Elrasheedy returned to the home on January 28, 2010, to verify that the corrections had been made.[19]
17. Elrasheedy found that Respondent did not have either the crib model numbers to obtain the requisite verification from the safety commission or the documentation of monthly crib inspections. Cleaning products, shampoos, conditioners, and other personal care products were still accessible to children in the upper level bathroom and hall closet. Wood polish cleaner was accessible in the kitchen.[20] The gate to access the upper level was left open.[21]
18. Elrasheedy observed an infant sleeping in a playpen on a comforter with multiple blankets wrapped around the body and face of the child. A stuffed toy was also present in the pen. The presence of multiple blankets or stuffed toys is prohibited by the SIDS protocol.[22] Respondent removed all items from the play pen except one permitted blanket.[23]
19. The diapering authorization form for child #1 was missing and the previous correction orders were not posted as required.[24] Elrasheedy found additional violations but because she had not raised them with Respondent before, Elrasheedy declined to cite new violations. However, she did consult with Respondent about them at the visit and subsequently, in writing.[25]
20. On April 23, 2010, the Department issued an Order to Forfeit a Fine of $200 and Order of Conditional License for a period of one year.[26]
21. On May 25, 2010, Elrasheedy and her supervisor revisited the home of Respondent. The purpose of this visit was to review the grounds for the fine and explain the conditions on the license. While the Licensors observed violations of care taking rules, Elrasheedy chose not to issue a correction order at that time. Respondent did not appeal the fine or conditional license.[27]
22. On July 20, 2010, Elrasheedy made a follow-up visit to the program. While there, Elrasheedy observed the children leave the home through the garage, an area that contained toxic items and was not licensed for use.[28]
23. On July 26, 2010, Elrasheedy issued Respondent a correction order for allowing the children in the garage and a number of other violations, including missing authorization forms signed by parents and other required documentation.[29] Child care forms were provided to Respondent to help her with documentation.[30] Respondent was also advised not to change children in the eating area. Elrasheedy had seen Respondent diaper a soiled child on the floor in the eating area near the island on that visit.[31]
24. As of July 26, 2010, there were no toxic items available to the children.[32] However, in the seven visits to the program, this was the only time that Elrasheedy found compliance with the prohibited toxics rule.[33]
25. On August 19, 2010, Elrasheedy revisited the program to monitor the conditional license. Upon entering, she observed that the family dog was outside playing with the children and saw a preschool child was outside without supervision. Respondent was in the home with infants and other preschool children. Elrasheedy advised Respondent that preschoolers and infants should be kept together, either all inside or outside, so the care provider can intervene to protect the safety of the children. In this instance, Respondent was not in visual contact or hearing while the preschooler played outside. Respondent was not in a position to intervene in case of an emergency.[34]
26. Elrasheedy also requested that the dog be brought back into the house because Respondent was inside. The licensing rule relative to pets requires that there be supervision over contact between pets and any children in care.[35] Respondent was issued a correction order for these things in addition to the toxic items and cosmetics which were accessible to the children inside the home, and incomplete program documentation.[36]
27. On October 11, 2010, Elrasheedy, accompanied by her supervisor, made a monitoring visit. She found numerous violations, including hazardous plastic bags, lotions, and toxic items which were accessible to the children. The correction orders and negative licensing actions were not posted in a public place as required. Individual towels for hand-wiping were not available. Elrasheedy noticed that mold was growing on the ceiling. She gave Respondent some additional time to remove and repair that area of the ceiling. Finally, Respondent was cited because she was not in the same room as the preschool children when the Licensors arrived and was not in a position to intervene in the event of an emergency.[37]
28. At the October 11, 2010 meeting, Respondent submitted all the remaining program documentation that had been the subject of prior correction orders going back to 2008. As of that time, Respondent’s program documentation was complete, except for the crib reporting documentation.[38] The crib reporting documentation was incomplete because there was no documentation prior to June 2010 or after October 2010.[39]
29. Respondent did not appeal any of the correction orders.
30. On October 22, 2010, the Department accepted County’s recommendation that Respondent’s child care license be revoked.[40] The Department cited the fact that Respondent failed to abide by the conditions imposed on her license on April 23, 2010, and that she had incurred additional violations subsequent thereto.
31. On December 29, 2010, Elrasheedy, accompanied by her supervisor, made their annual relicensing visit to Respondent’s home. Prior to the meeting, Respondent received a list of items that would be reviewed on the relicensing visit and a list of documents or information which would be required of Respondent for purposes of relicensing.[41]
32. On the same date, the Respondent was cited for failing to complete CPR training, SIDS training, infant toddler training, and the annually required relicensing training.[42]
33. Notwithstanding Respondent’s documentary compliance, Elrasheedy continued to recommend revocation of Respondent’s license because of her repeated violations of the supervisory rule, the SIDS rule, the toxic substance rule, failure to implement appropriate behavioral redirection methodology, and her inability to consistently follow through with rule compliance, notwithstanding a conditional license.[43]
34. During the course of her testimony, Respondent denied that she saw the first correction order issued in December 2008 by Haenke. Elrasheedy’s testimony that it was in Respondent’s file at their initial encounter and was used for the 2009 inspection is the more credible testimony.
1. The Commissioner of Human Services and
the Administrative Law Judge have jurisdiction to consider this matter pursuant
to Minn. Stat. §§ 14.50 and 245A.07.
2. The Department gave proper and timely notice of the hearing and has complied with all procedural requirements of law and rule.
3. The County has demonstrated by a preponderance of the evidence that the Respondent has had a chronic and serious history of licensing violations, both before and after the imposition of licensing conditions, giving reasonable cause for the revocation. The Respondent failed to demonstrate that she fully complied with the applicable laws and rules.
4. Under Minn. Stat. 245A.02, subd. 18 and Minn. R. 9502.0315, subp. 29a,
"Supervision" means a caregiver being within sight or hearing of an infant, toddler, or preschooler at all times so that the caregiver is capable of intervening to protect the health and safety of the child. For the school age child, it means a caregiver being available for assistance and care so that the child's health and safety is protected.
5. Respondent violated these provisions multiple times, before and after the imposition of the conditional license.
6. Minn. Stat. § 245A.146, subds. 3 and 4, Subdivision 3 states:
(a) Annually, from
the date printed on the license, all license holders shall check all their
cribs' brand names and model numbers against the United States Consumer Product
Safety Commission Web site listing of unsafe cribs.
(b) The license
holder shall maintain written documentation to be reviewed on site for each
crib showing that the review required in paragraph (a) has been completed, and
which of the following conditions applies:…
(c) Documentation of the review completed under this
subdivision shall be maintained by the license holder on site and made
available to parents of children in care and the commissioner.
7. Subdivision 4 states:
(a) On at least a
monthly basis, the license holder shall perform safety inspections of every
crib used by or that is accessible to any child in care, and must document the
following…
(10)
no tears in mesh of fabric sides in non-full-size cribs….
(b) Upon discovery
of any unsafe condition identified by the license holder during the safety
inspection required under paragraph (a), the license holder shall immediately
remove the crib from use and ensure that the crib is not accessible to children
in care, and as soon as practicable, but not more than two business days after
the inspection, remove the crib from the area where child care services are
routinely provided for necessary repairs or to destroy the crib.
(c) Documentation of the inspections and actions taken with
unsafe cribs required in paragraphs (a) and (b) shall be maintained on site by
the license holder and made available to parents of children in care and the
commissioner.
8. Respondent violated the crib safety provisions, Minn. Stat. § 245A.146, subds. 3, 4, and Minn. R. 9502.0425, subp. 9, before and after the imposition of the conditional license.
9. Minn. Stat. § 245A.1435 of the SIDS statute, states,
(a) When a license holder is placing an infant to sleep, the
license holder must place the infant on the infant's back, unless the license
holder has documentation from the infant's parent directing an alternative
sleeping position for the infant. The parent directive must be on a form
approved by the commissioner and must include a statement that the parent or
legal guardian has read the information provided by the Minnesota Sudden Infant
Death Center, related to the risk of SIDS and the importance of placing an
infant or child on its back to sleep to reduce the risk of SIDS.
(b) The license holder must place the infant in a crib
directly on a firm mattress with a fitted crib sheet that fits tightly on the
mattress and overlaps the mattress so it cannot be dislodged by pulling on the
corner of the sheet. The license holder must not place pillows, quilts,
comforters, sheepskin, pillow-like stuffed toys, or other soft products in the
crib with the infant. The requirements of this section apply to license holders
serving infants up to and including 12 months of age. Licensed child care
providers must meet the crib requirements under section 245A.146.
10. Minn. R.
9502.0425, subp.
9, of the infant and new born sleeping space rule states: [t]here must be a safe, comfortable sleeping space for each infant and
newborn. A crib, portable crib, or playpen with waterproof mattress or pad must
be provided for each infant or newborn in care.
11. Respondent violated the SIDS protocol by permitting an infant to sleep on a couch instead of an approved crib, by permitting an infant to sleep in a crib with multiple blankets and a soft toy, and by using of a defective crib.
12. Minn. R. 9502.0435,
subp.
4, of the sanitation
and health rule, requires:
All medicines, chemicals, detergents,
poisonous plants, alcoholic beverages, and other toxic substances must be
inaccessible to children. They must be stored away from food products.
13. Minn. R. 9502.0435,
subp.
6, requires:
Knives, matches, plastic bags, and other
potential hazards must be kept out of the reach of infants, toddlers, and
preschoolers. The use of potentially hazardous materials and tools must be
supervised.
14. Minn. R. 9502.0435, subp. 8, requires:
The provider shall be prepared for
emergencies…
C. The emergency phone numbers of the parents and child's physician and
dentist must be readily available within the residence and taken on field
trips.
15. Minn. R. 9502.0435, subp. 12, requires…
B. children handle animals only with supervision.
16. Minn. R. 9502.0435, subp. 13, requires:
Children in diapers shall be kept clean and
dry. The following sanitary procedures must be used to reduce the spread of
communicable disease…
i.
Diapering
must not take place in a food preparation area. The diaper changing area must
be covered with a smooth, nonabsorbent surface. If the surface is not
disposable and is wet or soiled, it must be washed with soap and water to
remove debris and then disinfected with a solution of at least two teaspoons of
chlorine bleach to one quart of water. If the surface is not soiled with feces
or urine, then it must be disinfected with the solution of chlorine bleach and
water after each diapering.
17. Minn. R. 9502.0435,
subp.
16, requires:
The following provisions must be followed
for the care of ill children and the administration of medicine…
G.
The
following govern the administration of medicine by the provider to children in
care: (1)
the provider shall obtain written permission from the child's parent
prior to administering medicine, diapering products, sunscreen lotions, and
insect repellents. Nonprescription medicines, diapering products, sunscreen
lotions, and insect repellents must be administered according to the
manufacturer's instructions unless there are written instructions for their use
provided by a licensed physician or dentist….
18. Respondent violated provisions set forth in conclusions 11 through 17, before and after the imposition of the conditional license.
19. Minn. R. 9502.0425, subp. 10 of the physical environment rule, states…
All
stairways must meet the following conditions…
C. Gates
or barriers must be used when children between
the ages of 6 and 18 months are in care.
20. Respondent violated Minn. R. 9502.0425, subp. 10, before and after the imposition of the conditional license.
21. Minn. Stat. § 245A.07, subd. 1 (a), in relevant part, states,
In addition to making a license conditional under section 245A.06,
the commissioner may suspend or revoke the license, impose a fine, or secure an
injunction against the continuing operation of the program of a license holder
who does not comply with applicable law or rule. When applying sanctions
authorized under this section, 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 persons served by the program.
22. Minn. Stat. § 245A.07, subd. 3 (a), in relevant part, states,
The commissioner may suspend
or revoke a license, or impose a fine if a license holder fails to comply fully
with applicable laws or rules…. A
license holder who has had a license suspended, revoked, or has been ordered to
pay a fine must be given notice of the action by certified mail or personal
service. If mailed, the notice must be mailed to the address shown on the
application or the last known address of the license holder. The notice must
state the reasons the license was suspended, revoked, or a fine was ordered.
23.
Due to the
nature, chronicity, and severity of the violations, revocation is an
appropriate sanction.
Based upon
these Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
The Administrative Law Judge respectfully recommends that the revocation order be AFFRIMED.
Dated: June 30, 2011
/s/ Manuel J. Cervantes
|
MANUEL
J. CERVANTES Administrative
Law Judge |
Reported: Digitally Recorded, no transcript prepared
NOTICE
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 and may adopt, reject or modify these Findings of Fact,
Conclusions, and Recommendation. Under
Minn. Stat. § 14.61, the Commissioner shall not make a final decision until
this Report has been made available to the parties for at least ten days. The parties may file exceptions to this
Report and the Commissioner must consider the exceptions in making a final
decision. Parties should contact Lucinda Jesson, 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 discipline 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 its final decision upon each party and the Administrative Law Judge by first class mail.
MEMORANDUM
The record as detailed above amply supports the affirmation of the County’s request for license revocation.
M.J.C.
[1] Testimony of Haenke.
[2]
[3]
[4]
[5]
[6]
[7] Exhibit 1. This order included violations for incomplete paperwork on one child, including the lack of emergency contact information, missing immunizations, missing electrical outlet caps, toxic cleaners beneath the bathroom sink, no fire drill log, no crib records, no proof of SIDS/Shaken Baby Syndrome training, and no self-closing door between the house and garage.
[8]
[9] Haenke Test.
[10]
Elrasheedy Test.,
[11] Elrasheedy Test., Minn. R. 9502.0435, subp.
13, Ex. 8. Thereafter, and during the conditional license
period, Respondent continued to change children on the couch, on the floor in
the kitchen nook eating area, and on the floor in the living room. On only one occasion witnessed by Elrasheedy,
did Respondent use a non-absorbent pad for changing an infant.
[12]
[13]
[14]
[15]
[16] Elrasheedy Test.
[17] Ex. 2. This order addressed the failure to provide a crib for an infant, missing documentation for child #1, missing outlet covers, toxic material in the bathroom and hall closet in the upper level and in the kitchen, missing crib verification and inspection documentation, missing gate at entrance to upper level, 2008 correction order not posted, unsanitary diapering on blanket, failure to disinfect area with bleach, failure to wash hands following diapering, and use of toddler to do care provider functions.
[18] Ex. 3. In addition to the items enumerated in the 2009 correction order, the recommendation addressed the lack of physical, intellectual, emotional and social development activities for the children.
[19] Elrasheedy Test.; Ex. 4.
[20] Elrasheedy Test.
[21] Ex. 5
[22] Elrasheedy
Test.,
[23]
[24]
[25] Ex. 5.
[26] Ex. 6. A $200 fine was imposed for repeated crib safety violations from 2008, 2009, and 2010 correction orders. The conditions placed on the license were as follows: 1) comply with all Minnesota law and rules; 2) no variances to license will be granted; 3) complete six hours of additional training consisting of infant and toddler specific training, SIDS training, and county orientation training, by a date certain in addition to annually required training; 4)read the county care provider handbook and successfully pass the quiz by a date certain; 5) develop a detailed written plan by a date certain on how to operate the program in a safe manner, particularly relative to SIDS protocol, storage of toxic substances, monthly crib inspections, and general compliance with Minnesota law and rules; 6) submit properly completed crib safety inspection forms each month to the county by a date certain; 7) submit to the county by a date certain a physician’s statement, specifically addressing Respondent’s ability to physically care for all children in her program; and 8) either provide a copy of the Order of Conditional License to parents of children in her program or document that all parents have been given an opportunity to review said Order by a date certain.
[27] Elrasheedy Test.
[28]
[29] Ex. 8.
[30] Ex. 9.
[31] Elrasheedy Test.
[32] Ex. 7.
[33] Elrasheedy Test.
[34]
[35]
[36] Ex. 11 and 13 with enclosures.
[37] Ex. 16 and 17.
[38] Elrasheedy Test., Ex. A., C., E., F
[39] Ex. B.
[40] Ex. 15.
[41] Elrasheedy Test., Ex. 18
[42] Ex. 18.
[43]