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OAH 3-1800-22036-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
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In the Matter of the
Temporary Immediate Suspension of the Family Child Care License of Kerri
Martin |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for hearing
before Administrative Law Judge Kathleen D. Sheehy on June 1, 2011. The hearing was conducted by telephone
conference call between the OAH offices and the Crow Wing County Attorney’s
offices. The OAH hearing record closed
at the conclusion of the hearing that day.
Janine L. LePage, Assistant Crow
Wing County Attorney,
William D. O’Hara, Attorney at
Law,
STATEMENT OF THE ISSUE
Did the Department demonstrate that
reasonable cause exists to believe that the Licensee’s actions pose an imminent
risk of harm to the health, safety or rights of persons served by her child
care program?
The Administrative Law Judge concludes that
reasonable cause does not exist to believe that the Licensee’s actions pose any
risk of harm to the health, safety or rights of children in care and that the
order of temporary immediate suspension should be rescinded.
Based upon the hearing record, the
Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
For
approximately two years, Kerri Martin has operated a family day care from her
home in
2.
The
Licensee attended the required courses on prevention of Sudden Infant Death
Syndrome before she was licensed.[4] She understands that state law requires
licensed providers to place an infant to sleep on the infant’s back.[5] She has no disagreement with this requirement
and has incorporated this practice into her routine care of infants.[6]
3.
On
April 19, 2011, the Licensee was caring for K.R., a ten-month-old boy, and four
other children. In February and March
2011, K.R. had been diagnosed with pneumonia and treated with antibiotics.[7] His cough had worsened after the last course
of antibiotics. On the morning of April
19, 2011, he developed a fever of about 99 degrees F, and the Licensee gave him
some infant Tylenol. The Licensee put
him down for his nap at about 1:00 p.m., placing him on his back. The baby was awake when she placed him in the
crib.[8]
4.
There
were no blankets or soft toys in the crib with K.R. during his nap.[9]
5.
K.R.
was old enough to be physically able to turn himself over into a different
position. When the Licensee checked him
at about 1:45 p.m., she found him on his stomach. She turned him over onto his back.[10]
6.
At
about 3:00 p.m. the Licensee went in to wake up K.R. and found him unresponsive,
lying on his stomach. He was not
breathing. She removed him from the
crib, called 911, and began performing CPR.
Police officers and paramedics arrived within minutes but were not able
to resuscitate K.R.[11] The Licensee called licensing authorities to
report the incident while police and paramedics were still there.[12]
7.
At some
point after the police arrived, an investigator asked the Licensee about the
baby’s health, medications, and any recent behavior changes in an effort to
obtain information for the paramedics.
He also asked her how she laid the baby down for his nap, and she said
“on his tummy.” She then demonstrated
that the baby typically slept on his stomach with his arms out straight, his
face resting on his arms, and his bottom slightly up in the air.[13]
8.
In the
same general timeframe, the Licensee advised licensing worker Amanda Crandall
that she put the baby to sleep on his back, that she had checked him later and
found he had flipped onto his stomach, and that she had turned him over onto
his back. She said she checked him often
because of his tendency to turn onto his stomach into his preferred sleeping
position. At no time in speaking to
licensing authorities did the Licensee state that she had placed him on his
stomach.[14]
9.
On
April 21, 2011, Crow Wing County Social Services recommended a temporary
immediate suspension of the child care license based on the conflicting
statements the Licensee had reportedly made about how she placed the baby when
she laid him down for his nap. In
addition, the County had not yet obtained the coroner’s report.[15]
10.
The
same day, the Department issued an Order of Temporary Immediate Suspension to
the Licensee. It was served on her
personally.[16]
11.
By
letter dated April 23, 2011, the Licensee appealed the Order of Temporary
Immediate Suspension.[17]
12.
On
April 27, 2011, Crow Wing County Social Services obtained the final autopsy
report, disclosing that K.R. suffered from a systemic infection of undetermined
etiology, including interstitial pneumonia, bronchitis, tracheitis, and
lymphocytic meningitis with focal encephalitis.[18] Interstitial pneumonia is a chronic lung
disease affecting the interstitial tissue (between the cells) of the lungs.[19]
13.
Crow
Wing County Social Services supports the reinstatement of the child care
license. The licensing worker believes
the Licensee was in compliance with all statutes and rules governing the care
of children.[20]
Based upon the Findings of Fact, the
Administrative Law Judge makes the following:
CONCLUSIONS
1.
The
Administrative Law Judge and the Commissioner of Human Services have
jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50 and 245A.08
(2010).[21]
2.
The
County and the Department have complied with all of the substantive and
procedural requirements of law and rule.
3.
The
Commissioner of Human Services shall impose a temporary immediate suspension of
a child care license “[i]f the license holder’s actions or failure to comply
with applicable law or rule . . . pose an imminent risk of harm to the health,
safety, or rights of persons served by the program.”[22]
4.
The
temporary immediate suspension shall “remain in effect pending the
commissioner’s final order under section 245A.08, regarding a licensing
sanction issued under subdivision 3 following the immediate suspension” if the
Commissioner demonstrates “that reasonable cause exists to believe that the license
holder’s actions or failure to comply with applicable law or rule poses . . .
an imminent risk of harm to the health, safety, or rights of persons served by
the program.”[23]
5.
State
law provides that when a license holder is placing an infant to sleep, the
license holder must place the infant on the infant’s back, unless there is
documentation from the infant’s parent directing an alternative sleeping
position.[24]
6.
The Department had reasonable cause to issue the
Order of Temporary Immediate Suspension on April 21, 2011; however, the
Licensee established at the hearing that she had acted in compliance with the
law on April 19, 2011.
7.
There is not reasonable cause to believe the
Licensee violated Minn. Stat. § 245A.1435 (a) or that her conduct poses an imminent
risk of harm to the health, safety, or rights of children in care.
Based upon the Conclusions, and
for the reasons explained in the accompanying Memorandum, the Administrative
Law Judge makes the following:
RECOMMENDATION
The Administrative Law Judge respectfully recommends that the Commissioner of Human Services RESCIND the Order for Temporary Immediate Suspension of Kerri Martin’s license to provide family child care.
Dated: June 3, 2011
s/Kathleen D. Sheehy
_________________________
KATHLEEN
D. SHEEHY
Administrative Law Judge
Reported: Digitally recorded, not transcribed.
NOTICE
This report is a
recommendation, not a final decision.
The Commissioner of Human Services (the Commissioner)
will make the final decision after a review of the record. The Commissioner may
adopt, reject or modify these Findings of Fact, Conclusions, and
Recommendations. The parties have 10 calendar days after receiving this report
to file Exceptions to the report. At the
end of the exceptions period, the record will close. The Commissioner then has 10 working days to
issue his final decision. Parties should
contact Lucinda Jesson, Commissioner 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 Minnesota Statutes § 14.62 (2a).
The record closes upon the filing of exceptions to the report and the
presentation of argument to the Commissioner, or upon 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. Under Minnesota Statutes § 14.62 (1), the
agency is required to serve its final decision upon each party and the
Administrative Law Judge by first class mail or as otherwise provided by law.
MEMORANDUM
I. Regulatory
Standards
Minn. Stat. § 245A.07, subdivisions 2 and 2a establish the standard of proof that must be met to sustain a temporary immediate suspension order. The statute reads in relevant part:
If the license holder's actions or failure to comply with applicable law or rule, or the actions of other individuals or conditions in the program pose an imminent risk of harm to the health, safety, or rights of persons served by the program, the commissioner shall act immediately to temporarily suspend the license.
….
The scope of the hearing shall be limited solely to the issue of whether the temporary immediate suspension should remain in effect pending the commissioner's final order under section 245A.08, regarding a licensing sanction issued under subdivision 3 following the immediate suspension. The burden of proof in expedited hearings under this subdivision shall be limited to the commissioner's demonstration that reasonable cause exists to believe that the license holder's actions or failure to comply with applicable law or rule poses, or if the actions of other individuals or conditions in the program poses an imminent risk of harm to the health, safety, or rights of persons served by the program. "Reasonable cause" means there exist specific articulable facts or circumstances which provide the commissioner with a reasonable suspicion that there is an imminent risk of harm to the health, safety, or rights of persons served by the program.
These are modest standards that are intended to assure that children are protected until there can be a more complete evaluation process, a more detailed hearing and a final determination.
While the term “imminent harm” is not defined in either statute or rules, the Commissioner has defined the term “imminent danger” in other licensing rules. This definition is instructive. “Imminent danger” includes circumstances in which a child is threatened with immediate and present abuse or neglect that is life-threatening or likely to result in abandonment, sexual abuse, or serious physical injury.[25]
The Administrative Law Judge must also determine if the evidence shows that the license holder’s actions, at the time of the hearing, continue to pose an imminent risk of harm. This determination is made so as to inform the Commissioner as to whether the suspension should continue pending final determination of any appropriate licensing sanction.
II. Analysis
In this case, the County stipulated at the outset of the hearing that K.R. died as a result of bacterial and viral infections and that his death is not attributable to the Licensee’s care. The issue for hearing was whether the Licensee had complied with the statutory requirement that child care providers place an infant to sleep on the infant’s back.
The record reflects that that the Licensee routinely placed infants to sleep on their backs and that she has no objection to complying with this requirement. She cannot recall ever deviating from this practice. With regard to R.K., she testified that she had always placed him on his back and that he typically would turn himself over to sleep in his preferred position on his stomach, with his arms stretched forward. When she checked on him during his nap, her practice was to flip him onto his back, but he would usually turn over onto his stomach again before waking.
During the hearing, the Licensee appeared to be genuinely puzzled as to why the police investigator was so certain that she said she had placed R.K. on his tummy when she put him down for his nap, and she was reluctant to disagree with the investigator. She recalls telling the investigator how the baby liked to sleep, but she has no recollection that he asked her how she placed the baby when she laid him down. The officer agrees that the situation was stressful and chaotic, that he talked to the Licensee several times over the course of the hour in which paramedics attempted to revive the baby, and that during this time she was also on the telephone and caring for the other children in care. He believes it is possible that the Licensee may have misunderstood his question and answered by describing how the baby normally slept.
The Administrative Law Judge concludes it is more
likely than not that the Licensee misunderstood the police investigator’s
question and responded by describing how the baby liked to sleep. There is no dispute that, in the same
timeframe, the Licensee reported to licensing authorities that she had placed
the baby down on his back, and she has consistently maintained that this is her
standard practice.[26] In addition, the Licensee has carefully
followed other rules regarding the provision of child care. It does not appear from the record that any additional
investigation is pending by the police or the County. The Administrative Law Judge accordingly
recommends that the Order of Temporary Immediate Suspension be rescinded.
K.D.S.
[1] Testimony of Diane Anderson.
[2] Exs. 11, 12, & 16.
[3]
Test. of D.
[4] Ex. 14.
[5]
[6] Test. of K. Martin.
[7] Ex. 6.
[8]
Test. of K. Martin; Test. of D.
[9] Ex. 5.
[10] Test. of K. Martin.
[11]
Test. of K. Martin; Testimony of Investigator
[12] Ex. 4; Test. of K. Martin.
[13] Testimony of C. Kleffman.
[14]
Test. of D.
[15] Ex. 5.
[16] Ex. 26.
[17] Ex. 3.
[18] Ex. 6.
[19]
http://www.websters-online-dictionary.org/definitions/interstitial+pneumonia?cx=partner-pub-0939450753529744%3Av0qd01-tdlq&cof=FORID%3A9&ie=UTF-8&q=interstitial+pneumonia&sa=Search#888
[20]
Test. of D.
[21] All references to Minnesota Statutes are to the 2010 edition; all references to Minnesota Rules are to the 2009 edition.
[22]
[23]
[24]
[25] See
[26]
Test. of D.