Minnesota Department of Human Services

March 21, 2012

License Number: 1062126 FCC (in application) CERTIFIED MAIL

Lineka Lynn Nelson, Applicant

1221 Milton Avenue

Worthington, MN 56187

ORDER OF DENIAL

Dear Ms. Nelson:

Based upon a recommendation by Nobles County, pursuant to Minnesota Statutes, section 245A.05, the Commissioner of the Department of Human Services is denying your application to provide family child care under the provisions of Minnesota Rules, parts 9502.0300 to 9502.0445. The reasons for the action are as follows:

Minnesota Statutes, section 245A.05 DENIAL OF APPLICATION.

The commissioner may deny a license if an applicant fails to comply with applicable laws or rules, or knowingly withholds relevant information from or gives false or misleading information to the commissioner in connection with an application for a license or during an investigation. An applicant whose application has been denied by the commissioner must be given notice of the denial. Notice must be given by certified mail or personal service. The notice must state the reasons the application was denied and must inform the applicant of the right to a contested case hearing under chapter 14 and Minnesota Rules, parts 1400.8505 to 1400.8612. The applicant may appeal the denial by notifying the commissioner in writing by certified mail or personal service within 20 calendar days after receiving notice that the application was denied. Section 245A.08 applies to hearings held to appeal the commissioner's denial of an application.

Minnesota Statutes, section 245A.04 APPLICATION PROCEDURES.

Subd. 6. Commissioner's evaluation. Before issuing, denying, suspending, revoking, or making conditional a license the commissioner shall evaluate information gathered under this section. The commissioner's evaluation shall consider facts, conditions, or circumstances concerning the program's operation, the well-being of persons served by the program, available consumer evaluations of the program, and information about the qualifications of the personnel employed by the applicant or license holder.

The commissioner shall evaluate the results of the study required in subdivision 3 and determine whether a risk of harm to the persons served by the program exists. In conducting this evaluation, the commissioner shall apply the disqualification standards set forth in chapter 245C.

Subd. 7. Grant of license; license extension.

(f) The commissioner shall not issue a license if an individual living in the household where the licensed services will be provided as specified under section 245C.03, subdivision 1, has been disqualified and the disqualification has not been set aside.

Minnesota Statutes, section 245C.03 BACKGROUND STUDY; INDIVIDUALS TO BE STUDIED.

Subd. 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 . . .

Minnesota Statutes, section 245C.14 DISQUALIFICATION.

Subd. 1. Disqualification from direct contact. (a) The commissioner shall disqualify an individual who is the subject of a background study from any position allowing direct contact with persons receiving services from the license holder or entity identified in section 245C.03, upon receipt of information showing, or when a background study completed under this chapter shows any of the following:

(1) a conviction of, admission to, or Alford Plea to one or more crimes listed in section 245C.15, regardless of whether the conviction or admission is a felony, gross misdemeanor, or misdemeanor level crime;

(2) a preponderance of the evidence indicates the individual has committed an act or acts that meet the definition of any of the crimes listed in section 245C.15, regardless of whether the conviction or admission is a felony, gross misdemeanor, or misdemeanor level crime; or

(3) an investigation results in an administrative determination listed under section 245C.15, subdivision 4, paragraph (b).

(b) No individual who is disqualified following a background study under section 245C.03, subdivisions 1 and 2, may be retained in a position involving direct contact with persons served by a program or entity identified in section 245C.03, unless the commissioner has provided written notice under section 245C.17 stating that:

(1) the individual may remain in direct contact during the period in which the individual may request reconsideration as provided in section 245C.21, subdivision 2;

(2) the commissioner has set aside the individual's disqualification for that program or entity identified in section 245C.03, as provided in section 245C.22, subdivision 4; or

(3) the license holder has been granted a variance for the disqualified individual under section 245C.30.

Subd. 2. Disqualification from access. (a) If an individual who is studied under section 245C.03, subdivision 1, clauses (2), (5), and (6), is disqualified from direct contact under subdivision 1, the commissioner shall also disqualify the individual from access to a person receiving services from the license holder.

(b) No individual who is disqualified following a background study under section 245C.03, subdivision 1, clauses (2), (5), and (6), or as provided elsewhere in statute who is disqualified as a result of this section, may be allowed access to persons served by the program unless the commissioner has provided written notice under section 245C.17 stating that:

(1) the individual may remain in direct contact during the period in which the individual may request reconsideration as provided in section 245C.21, subdivision 2;

(2) the commissioner has set aside the individual's disqualification for that licensed program or entity identified in section 245C.03 as provided in section 245C.22, subdivision 4; or

(3) the license holder has been granted a variance for the disqualified individual under section 245C.30.

Minnesota Rules, part 9502.0325 LICENSING OF FACILITIES FOR CHILDREN FAMILY DAY CARE AND GROUP FAMILY DAY CARE HOMES.

Subp. 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.

Minnesota Rules, part 9502.0335 LICENSING PROCESS.

Subp. 6. Disqualification factors. An applicant or provider shall not be issued a license or the license shall be revoked, not renewed, or suspended if the applicant, provider, or any other person living in the day care residence or present during the hours children are in care, or working with children:

D. Has a disqualification under Minnesota Statutes, section 245C.15, that is not set aside under Minnesota Statutes, section 245C.22, or for which a variance has not been granted under Minnesota Statutes, section 245C.30.

You have applied for a family child care license and as a part of the licensing process a background study was conducted on all individuals for whom a background study was required. In a letter dated November 29, 2011, Nobles County notified you and another individual of your disqualifications from any position allowing direct contact with persons served by programs licensed by the Department of Human Services (DHS), and the right to request reconsideration. Nobles County subsequently received a request for reconsideration of the disqualification decisions from both of you. The requests were forwarded to DHS - Division of Licensing and received on December 12, 2011. The requests and accompanying information, as well as the information used to disqualify both of you, have been reviewed.

The information submitted did not demonstrate that either of you does not pose a risk of harm to persons to be served by the licensed family child care program. Therefore, the disqualifications have not been set aside, nor has a variance been granted. Both you and the other individual are disqualified from any position allowing direct contact with, or access to, persons served by DHS-licensed programs. You and the other individual are also being advised by separate letters of the reasons for these decisions and your rights to appeal your disqualifications further.

Because you and the other individual are disqualified from any position allowing direct contact with, or access to, persons served by programs licensed by DHS, and in order to protect the health, safety, and rights of children receiving services in DHS-licensed programs, your application for a license to provide family child care is denied.

RIGHT TO APPEAL

You have the right to appeal this decision and the right to a contested case hearing under Minnesota Statutes, Chapter 14, and Minnesota Rules, parts 1400.8505 to 1400.8612.

If you choose to exercise this right, the request must be made in writing, and sent to the Commissioner by certified mail or personal service. If sent by certified mail, the request must be postmarked and sent to the Commissioner within twenty (20) calendar days after you receive this notice that your license is denied. If a request is made by personal service, it must be received by the Commissioner within twenty (20) calendar days after you receive this notice. The appeal should be addressed to:

Commissioner, Department of Human Services

c/o Division of Licensing

Attention: Nancy Sackett, Unit Manager

PO Box 64242

St. Paul, Minnesota 55164-0242

Because the denial is based in part on your disqualification which has not been set aside, pursuant to Minnesota Statutes, sections 245A.08 and 245C.28, the scope of the contested case hearing would include your disqualification as well as the denial. With respect to your disqualification, the scope of the hearing would be limited to whether the information used to disqualify you was correct.

Because the denial is also based in part on the disqualification of another individual that has not been set aside, pursuant to Minnesota Statutes, section 245A.08, subd. 2a(g), the scope of the contested case hearing would include a determination of whether that individual’s disqualification should be set aside if that individual meets his/her burden of proving that s/he does not pose a risk of harm to persons to be served by the program.

The Commissioner’s decision not to grant a variance relating to your and the other individual’s disqualification is final pursuant to Minnesota Statutes, section 245C.30 and would not be included in the scope of the hearing.

If you have any further questions regarding this matter, you may contact J. Sebastian Stewart at (651) 431-6584.

Sincerely,

DHS

Laura Plummer Zrust

Legal Office Manager

Division of Licensing

c: Angella Blanshan, Nobles County

PO Box 64242 Saint Paul, Minnesota 55164-0242 An Equal Opportunity and Veteran Friendly Employer
http://www.dhs.state.mn.us/licensing