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AMENDED MALTREATMENT INVESTIGATION MEMORANDUM Minnesota Statutes, section 260E.01, paragraph (a), “The legislature hereby declares that the public policy of this state is to protect children whose health or welfare may be jeopardized maltreatment.” NOTICE: This Amended Maltreatment Investigation Memorandum supersedes a version dated July 7, 2021, which should be destroyed. On November 17, 2022, an Order of the Commissioner of Human Services adopted the recommendation of an Administrative Law Judge (ALJ) to reverse the determination that the facility was responsible for neglect of the unknown child. The Order to Pay a Fine of $1,000 relating to the unknown child was rescinded. The Commissioner also adopted the recommendation of the ALJ to affirm the remainder of the findings, including the facility’s responsibility for neglect of the AV and the Order to Pay a Fine of $1,000 relating to the AV; the Orders to Pay Fines relating to a failure to report maltreatment ($200) and a background study violation ($200); and the licensing citations.
License Number and Program Type: 1098633-CCC (Child Care Center) Investigator(s): Anna Parkin Suspected Maltreatment Reported: It was reported that an alleged victim (AV) was unsupervised on the playground. Date of Incident(s): April 29, 2021 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 15, paragraph (a), clauses (1) and (2): Failure by a person responsible for a child's care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child's physical or mental health when reasonably able to do so. Failure to protect a child from conditions or actions that seriously endanger the child's physical or mental health when reasonably able to do so. Summary of Findings: Pertinent information was obtained during a site visit conducted on May 6, 2021; from documentation from the facility; and through seven interviews conducted with two supervisory staff persons (P1 and P2), three facility staff persons (P3, SP1, and SP2), a community person (CP), and the AV’s family member (FM) who was also a staff person at the facility. The facility had two playground areas, the “toddler” playground and the “preschool” playground. The toddler playground had grass (and a door into the toddler room) and the preschool playground had dirt ground (that lead to a preschool room.) The playgrounds were around a corner from each other and were separated by a baby gate. The baby gate was plastic and approximately two to three feet tall. There was approximately four to five feet between the baby gate and the building that did not connect but had pine trees. Both playgrounds were enclosed by a chain link fence. There were roads that went alongside the facility and along the playground with houses on the other sides of the roads. The CP stated on April 29, 2021, at approximately 10:30 a.m., as the CP drove past the facility, s/he saw a “small” child alone on the preschool playground. The CP drove past the facility’s playground four times over approximately ten minutes time. The first two times the CP drove past the facility, s/he saw the child alone on the preschool dirt area. The third time, the child was alone inside a playhouse. The fourth time, there was an unknown staff person running after the child to join the other children and three other staff persons in the back corner of the toddler playground. There was no information obtained from staff persons regarding the specific date and time of the incident as described by the CP. However, during the interviews when staff persons were asked about the incident, the AV’s name consistently came up and no other child’s name was mentioned. Although the AV’s name came up in the interviews, information showed that each day the AV did not come to the facility until approximately 11:45 a.m. (after the time the CP saw the child alone on the playground.) According to the AV’s enrollment information, the AV was four years old at the time of the incident and in the preschool room. Consistent information was provided that the AV had autism and did not verbally communicate. (Note: The facility did not have an Individual Child Care Program Plan for the AV which was a violation of Minnesota Rules, part 9503.0065, subpart 3, which states when a license holder admits a child with special needs, the license holder must ensure that an individual child care program plan is developed to meet the child’s individual needs.) The AV attended an unrelated program in the mornings and came to the facility in the afternoons. According to the staff schedule and timesheets, SP1 and SP2 regularly worked in the preschool room including on April 29, 2021. P2 provided the following information: · On April 29, 2021 (note: P2 provided this date after a discussion had taken place between P2 and this investigator to narrow down the date of the incident), at approximately 4 or 4:30 p.m. (not the same time as what the CP said), P3 and the AV walked up to P2 in the hallway. P3 told P2 that s/he found the AV alone in the toddler playground area. P3 did not say anything else to P2 about the incident. P2 checked and did not see marks or injuries to the AV. P2 then walked the AV back to the preschool room. · When P2 arrived in the preschool room, SP1 and SP2 were inside the preschool room with the other children assisting them with getting their coats off from outside. P2 made eye contact with SP1 and SP2 and told them that s/he brought the AV back to the room. P2 did not recall the rest of the conversation with SP1 and SP2. P2 did not discuss supervision while on the playground with SP1 and SP2. P2 then left the room. · P2 stated that regarding the incident, an incident report was not completed, the FM was not notified, and P2 did not notify the licensing agency because the AV was found “right away” and “immediately” returned to the preschool room.
P3 provided the following information: · P3 stated that a few weeks prior to this investigation at an unknown time, while inside the toddler room, P3 saw the AV alone smiling and looking in the door from the toddler playground. P3 opened the door and the AV started to walk away from P3 so P3 verbally prompted the AV to come inside the toddler room. P3 then walked the AV to the FM who was in the gym (this is likely a different incident than described by P2 as P2 said that the P3 brought the AV to P2 and likely different than described by the CP.) P3 did not look to see if other staff persons were outside and did not return the AV to his/her preschool room because P3 was going to the gym with his/her class. · P3 did not recall if s/he discussed the incident with P2. P3 did not notify any other staff persons about the incident until a few days after the incident, P3 told P1 about finding the AV outside alone. P3 stated that the toddler children were “curious” around the baby gate and had a history of walking through the trees to the other playground. Prior to this incident, P3 had not seen any children unsupervised on the playgrounds. SP1 provided the following information: · When this investigator asked SP1 why s/he was being interviewed, SP1 stated that while s/he was on the preschool playground with another staff person (SP1 could not remember which staff person), the AV went over to the other playground area to see the FM. The other staff person working with SP1 went back and forth between the two playground areas to supervise the AV. · At some point, SP1 saw the AV between the gaps in the trees and his/her feet under the trees. SP1 went to the toddler playground and found the AV running on the playground alone. The AV did not have any injuries and was “smiling.” SP1 brought the AV back to the preschool playground where s/he played with the other preschool children. SP1 could not recall where the other staff person was during that time. · After SP1 went inside the facility with the AV and the other children, s/he spoke to the FM and told him/her that the AV was alone on the other playground. The FM reminded the AV not to go to the other playground. SP1 did not notify other staff persons about the incident. · When this investigator asked SP1 specific questions about P2 bringing the AV to SP1, SP1 stated that the only thing s/he remembered about the incident was once s/he was inside the gym with the other children and P2 brought the AV into the gym. SP1 did not recall the date of this. SP1 was not aware that the AV was missing prior to P2 returning the AV. SP1 did not recall which other staff person was working with SP1 or what SP1 was doing outside prior to coming into the gym. · Prior to the incident, SP1 could not recall if s/he received training on supervising the children especially while on the playground. SP1 generally stood by the swing and pushed children, counted the children often, and watched when children were around the pine trees because it was difficult to see. · SP1 stated during the previous year, s/he spoke to a previous supervisory staff person who no longer worked at the facility about how children kept going to the other area on the other side of the trees and that it was a “problem.” The previous supervisory staff person said they would take care of it but SP1 did not see any changes. SP2 provided the following information: · On an unknown date in April 2021, SP2 and P3 were outside standing near the door to the preschool playground with the preschool children. SP1 was not working at that time. SP2 realized s/he had left the attendance clipboard inside the preschool room. SP2 told P3 that s/he needed to go inside to get clipboard. SP2 saw the AV under the preschool slide with another child when SP2 walked inside. · SP2 was gone less than five minutes and when s/he returned to the playground, SP2 realized that the AV was missing and told P3. P3 (who was still on the playground) walked around the corner of the building to the toddler playground and found the AV. P3 carried the AV back to the preschool playground where SP2 and the other children were. P3 told the FM (who was in the gym) about the AV being alone. · Later on, SP2 told P2 about the AV. P2 asked SP2 and P3 how long the AV was gone for and where was s/he located. SP2 told P2 that s/he was gone less than three minutes and both SP2 and P3 were standing by the door to the playground. P2 told P3 to go stand by the baby gate and SP2 stay by the door. SP2 was not aware of other incidents where the AV was without staff person on the playgrounds. · SP2 was trained on how to fill out an incident report but did not receive training on supervision or mandated reporting. SP2’s first day at the facility was in a classroom observing P2 and then the following day, SP2 provided cares to the children. P1 started his/her employment with the facility approximately one or two days prior to the incident. P1 was not aware of the incident prior to P3 telling P1. Later on that day, P1 discussed the incident with an administrative staff person (P4) and showed P4 a gap between in the baby gate and the building (where the pine trees were). P4 discussed installing a permanent chain link fence to divide the two playgrounds instead of the baby gate. P1 then went and discussed with all preschool and toddler staff persons supervision on the playgrounds, including having a staff person stand near the baby gate. The FM stated approximately two weeks prior to this investigation, at approximately 3 p.m., s/he saw the AV outside the toddler classroom window “running around” the toddler playground. The FM got the AV who appeared “fine,” brought him/her into the toddler classroom, and texted SP1 that the AV was in the toddler classroom. SP1 came in the door from the hallway to the classroom. SP1 told the FM that the AV had been playing next to the building and then “disappeared.” SP1 then apologized and brought the AV back to the preschool playground with the other children. After the incident, P2 “possibly” spoke to the FM about a phone call being made about the AV alone on the playground. P2 stated that incident reports were not completed and this investigator did not see any incident reports in the AV’s file. According to the staff orientation, staff persons “actively” supervised the children “at all times” by remaining off cell phones and focusing on the children. Staff persons also positioned themselves away from other staff persons to “equally surround” the learning and play areas. According to the Risk Reduction Plan, the playground was fenced in so no child was able to leave the area without assistance from a staff person. Staff persons must actively supervise children at all times while outside, including head counts and scanning. Staff persons must ensure all children were accounted for before entering the building from the playground. Facility documentation showed that SP1 and SP2 received training on the staff orientation, Risk Reduction Plan, and the Reporting of Maltreatment of Minor’s Act prior to the incident.
Relevant Rules and Statutes: Minnesota Statutes, section 245A.02, subdivision 18, and Minnesota Rules, part 9503.0045, subpart 1, item A, stated that a child must have supervision at all times and that supervision was defined as occurring when a program staff person was within sight and hearing of a child at all times so that the program staff person can intervene to protect the health and safety of the child. Minnesota Rules, part 9503.0110, subpart 4, item C, stated that a written record of accidents, injuries, emergencies, and incidents must be maintained in the center’s administrative record. Minnesota Statutes, section 260E.06, subdivision 1, requires mandated reporters at a facility to immediately report suspected maltreatment.
Conclusion: A. Maltreatment: Information was provided by the CP that on April 29, 2021, at approximately 10:30 a.m., a child was outside on the playground alone for at least ten minutes. Subsequent information obtained from staff persons showed that in addition to the child seen by the CP, it was likely that the AV who had special needs, on more than one occasion (two to six), was left outside on the playground without staff person knowledge or supervision. A child left alone on an outside playground without the knowledge or supervision of a staff person was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services and the facility’s Risk Reduction Plan and were violations of Minnesota Statutes, section 245A.02, subdivision 18, and Minnesota Rules, part 9503.0045, subpart 1, item A. Allowing children, including the AV, who was autistic and non-verbal, to be alone on the playground without the knowledge of staff persons, allowed them access to community dangers including community persons and possibly leaving the playground. Therefore, there was a preponderance of the evidence that there was a failure to supply an unknown child and the AV with necessary care and a failure to protect them from conditions or actions that seriously endangered their physical or mental health when reasonable able to do so. It was determined that neglect occurred (Failure by a person responsible for a child's care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child's physical or mental health when reasonably able to do so. Failure to protect a child from conditions or actions that seriously endanger the child's physical or mental health when reasonably able to do so). B. Responsibility pursuant to Minnesota Statutes, section 260E.30, subdivision 4, paragraph (a), clauses (1) and (2): When determining whether the facility or individual is the responsible party, or whether both the facility and the individual are responsible for determined maltreatment in a facility, the investigating agency shall consider at least the following mitigating factors: (1) whether the actions of the facility or the individual caregivers were according to, and followed the terms of, an erroneous physician order, prescription, individual care plan, or directive; however, this is not a mitigating factor when the facility or caregiver was responsible for the issuance of the erroneous order, prescription, individual care plan, or directive or knew or should have known of the errors and took no reasonable measures to correct the defect before administering care; (2) comparative responsibility between the facility, other caregivers, and requirements placed upon an employee, including the facility’s compliance with related regulatory standards and the adequacy of facility policies and procedures, facility training, an individual’s participation in the training, the caregiver’s supervision, and facility staffing levels and the scope of the individual employee’s authority and discretion; and (3) whether the facility or individual followed professional standards in exercising professional judgment. SP1 and SP2 were the two staff persons who regularly worked in the AV’s classroom. Facility documentation showed that SP1 and SP2 received training on the staff orientation, Risk Reduction Plan, and the Reporting of Maltreatment of Minor’s Act prior to the incident. However, SP1 stated that s/he could not recall if s/he was trained on supervising children especially on the playground and SP2 stated that s/he did not receive training on supervision or mandated reporting, which brings into question the adequacy of the training provided and documented by the facility. While it is more likely that SP1 and SP2 each at some point were responsible for the supervision of the AV during a time when the AV was left unsupervised without their knowledge, because there were no incident reports completed for any incident (which was a violation of Minnesota Rules, part 9503.0110, subpart 4, item C) and staff persons did not notify the licensing agency regarding the allegations (which was a violation of 260E.06, subdivision 1), it was difficult to determine additional information about the incidents other than what the CP provided. Information regarding the dates and times of the incidents, which staff persons worked at the time of the incidents, and how many incidents actually occurred, could not be determined combined with the concerns regarding the adequacy of training provided and documented, staff persons individual responsibility was not able to be determined and was mitigated. Because there were likely several incidents with the AV and at least one other child being left unsupervised on the playground, that there were concerns regarding the adequacy of training provided and documented, that several facility staff persons were aware and did not take any action to protect against additional incidents, and that information provided by P3 and SP1 showed that children had a history of walking through the trees to the other playground, the facility was responsible for the maltreatment of the AV and the unknown child. C. Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by a facility meets the statutory criteria to be determined as “serious.” Minnesota Statutes, section 245C.02, subdivision 18, states: "Serious maltreatment" means sexual abuse, maltreatment resulting in death, neglect resulting in serious injury which reasonably requires the care of a physician whether or not the care of a physician was sought, or abuse resulting in serious injury. For purposes of this definition, "care of a physician" is treatment received or ordered by a physician, physician assistant, or nurse practitioner, but does not include diagnostic testing, assessment, or observation; the application of, recommendation to use, or prescription solely for a remedy that is available over the counter without a prescription; or a prescription solely for a topical antibiotic to treat burns when there is no follow-up appointment. For purposes of this definition, "abuse resulting in serious injury" means: bruises, bites, skin laceration, or tissue damage; fractures; dislocations; evidence of internal injuries; head injuries with loss of consciousness; extensive second-degree or third-degree burns and other burns for which complications are present; extensive second-degree or third-degree frostbite and other frostbite for which complications are present; irreversible mobility or avulsion of teeth; injuries to the eyes; ingestion of foreign substances and objects that are harmful; near drowning; and heat exhaustion or sunstroke. Serious maltreatment includes neglect when it results in criminal sexual conduct against a child or vulnerable adult. It was determined that the substantiated maltreatment for which the facility was responsible did not meet statutory criteria to be determined as serious because there was no injuries to the AV and there was no information that a child sustained any injury while unsupervised. Pursuant to Minnesota Statutes, section 260E.35, subdivision 6, paragraph (c) all investigative data maintained in this report will be kept by the Department of Human Services for at least ten years after the date of the final entry in the report. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate but not followed. A permanent fence was installed to separate the two playground areas, staff persons received additional training on supervision, and updated the supervision information provided to staff persons. Action Taken by Department of Human Services, Office of Inspector General: On July 7, 2021, the license holder was ordered to forfeit a fine of $2000 ($1000 for each child) as a result of the substantiated maltreatment for which facility was responsible, $200 for failure to report maltreatment, and $200 for the background study violation. The maltreatment determination and the Order to Forfeit a Fine are each subject to appeal. Minnesota Statutes, section 260E.06, subdivision 1, requires mandated reporters at a facility to immediately report suspected maltreatment. The investigation determined that five staff persons failed to report suspected maltreatment as required. A letter from DHS was sent to each of these individuals regarding their failure to report the suspected maltreatment and potential consequences for future such failures. Certification: The information collection procedures followed in this investigation were pursuant to Minnesota Statutes, section 260E.30, subdivision 6, paragraph (c). All individuals that are subjects of data in this investigation have the right to obtain private data on themselves which was collected, created, or maintained by the Department of Human Services.
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