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January 11, 2023 Jamie Marie McMahon, Authorized Agent Little Sandbox Childcare and Learning Center, LLC 22903 Ambassador Blvd., NW St. Francis, MN 55070-9312 License Number 1093049 (Child Care) Complaint Report Number: 202202633 Dear Jamie Marie McMahon: This matter arises from an Order of Conditional License, dated June 8, 2022. (See attached Exhibit A). On June 24, 2022, the Minnesota Department of Human Services (DHS), Licensing Division, received your request for reconsideration via email1 for five of nine citations issued in the Order of Conditional License. The violations challenged by Little Sandbox Childcare and Learning Center, LLC (“Little Sandbox”) are addressed below. The unchallenged violations are deemed conclusive. A. Reconsideration of the Citations Identified in the Order of Conditional License Staff Qualifications and Training 2. Violation: The required staff-to-child ratios were not maintained. On April 13, 2022, the DHS licensor observed the following: · One staff person was alone in the infant classroom with seven infants. The second staff person required to meet staff to child ratios was in the kitchen reading orientation paperwork. · Upon arrival of the DHS licensor, at approximately 8:58 a.m., one staff person was working alone in the preschool classroom with sixteen children. To meet staff to child ratios, a second staff person was required. · At 9:11 a.m., one staff person was working alone in the preschool classroom with eighteen children. The second staff person required to meet staff to child ratios arrived at 9:40 a.m. The following was determined through staff person interviews: · From 5:30 a.m. to 6:10 a.m., there was a combined group of between 5 and 8 infant, toddler and preschool aged children with one staff person. Two staff persons were required. · From 6:10 – 6:30 a.m., there was a combined group of 10 infant, toddler and preschool aged children with one staff person. The second staff person was scheduled to arrive between 6:15 and 6:30 a.m. each day. With a combined group of 10 infant, toddler and preschool children, three staff persons were required. The following was determined through documentation submitted by and collected from the program: · On April 1, 2022, the program was out of ratio throughout the day. At 8:00 a.m. there were 21 infant, toddler, and preschool children with four staff persons; five staff persons were required. By the end of the day, there were 26 infant, toddler and preschool children present with four staff persons; five staff persons were required. · On April 4, 2022, the program was out of ratio throughout the day. At 7:30 a.m. there were 23 infant, toddler and preschool children with three staff persons present; five staff persons were required. At 2:59 p.m., there were 33 infant, toddler and preschool children with five staff persons present; six staff persons were required. · On April 7, 2022, the program was out of ratio for a large portion of the day. At 7:30 a.m. there were 22 infant, toddler and preschool children present with four staff persons; five staff persons were required. From 12:32 until 12:42 p.m. there were 33 infant, toddler and preschool children with four staff persons; five staff persons were required. · On April 11, 2022, the program was out of ratio from 7:40 a.m. until 8:27 a.m. There were 27 infant, toddler and preschool children with four staff persons; five staff persons were required. From 1:00 p.m. until 4:30 p.m., there were 33 infant, toddler and preschool children present with four staff persons; five staff persons were required. Rule Violated: Minnesota Rules, part 9503.0040, subpart 1. Repeat Violation: This is a repeat licensing violation. The license holder was cited for similar violation in a correction order dated March 31, 2022. Your request for reconsideration: You denied the violations, stated that you always maintained the required staff-to-child ratios, and provided printouts from Bright Wheel as supporting documentation. DHS’ response: Under Minnesota Rules, part 9503.0040, subpart 1, the minimum staff to child ratio for infants is one to four. For toddlers, the minimum ration is one to seven. For preschoolers, the minimum ratio is one to ten. In your request for reconsideration, you provided Bright Wheel printouts to demonstrate the number of children in care and as evidence of times that children arrived and departed.2 However, the Bright Wheel records you provided were not the attendance records provided by the program director when during the licensing review, nor was Bright Wheel brought up as a method of keeping attendance. While you denied all the violations, on April 13, 2022, the DHS licensor observed one staff person alone in the infant classroom with seven infants – two staff were required. On the same day, the DHS licensor observed a staff person supervising 16 children alone the preschool room. Later that morning, the DHS licensor observed a staff person supervising 18 children alone in the preschool room – in both instances in the preschool room, two staff were required. Multiple staff persons also identified several instances where staff-to-child ratios were not maintained as required. In addition, a review of the attendance records and staff time cards demonstrate that the program was out of ratio as described. The citation is affirmed. 3. Violation: The program grouped children from different age categories together during arrival and departure times that exceeded 25 percent of the program's daily operating hours. It was determined through staff interviews that the program combined the toddler and preschool age children together for the majority of the day due to staffing shortages. This has occurred approximately three times a week for the past two months. Rule Violated: Minnesota Rules, part 9503.0040, subpart 3, item A, subitem (1). Repeat Violation: The license holder was cited for a similar violations in Correction Orders dated March 31, 2022, and November 21, 2019. Your request for reconsideration: You stated that the program operates for 13 hours per day, and that the program never exceeded 3.25 hours of grouping different age groups during drop off or pickup. You also stated that the program did not combine toddlers and preschool age children for the majority of any days, and never exceeding 3.25 hours. DHS’ response: During morning and arrival departure times, children in different age categories may be grouped together if, (1) the total arrival and departure time does not exceed 25 percent of the daily hours of operation, (2) the staff to child ratio, group size, and staff distribution applied are for the age category of the youngest child present, and (3) the group is divided when the number of children present reached the maximum group size of the youngest child present. Minnesota Rules, part 9503.0040, subpart 3, item A. Information obtained from staff interviews identified instances where different age groups were grouped together, including instances where toddlers and preschoolers were combined all day, and when infants were combined with other age groups. However, there is not sufficient information to determine that the program did not comply with the age category grouping requirements during arrival and drop-off times as cited in Citation 3. Citation 3 is rescinded. 4. Violation: During the program's regular hours of operation infants were mixed with other age categories. It was determined through staff interviews that during the program’s regular hours of operation, infants are mixed with the toddlers during the following times: · During outdoor time on the playground and after naptime until the infants are picked up at the end of the day. · When the program is short staffed, toddlers are moved into the infant classroom or infants are moved into the toddler classroom. This has been the routine practice for approximately two months. Rule Violated: Minnesota Rules Part 9503.0040, subpart 3, item B, (1). Your request for reconsideration: You did not dispute the first instance cited. Regarding the second instance, you stated that toddlers and infants are never mixed indoors, and that it is not a routine practice at the program. DHS’ response: During a center’s regular hours of operation, infants may not be grouped with children in other age categories. Minnesota Rules Part 9503.0040, subpart 3, item B, (1). While you deny toddlers were mixed with infants, multiple staff persons identified instances that infants are mixed with toddlers. This includes instances where some older infants were moved to the toddler room and instances where young toddlers were moved to the infant room. The record supports the citation, and it is affirmed. Supervision 6. Violation: Staff did not supervise the children at all times. The following were determined through staff interviews: The Infant Classroom: · When the staff person responsible for supervising the infants leaves at the end of his/her shift around 12:00/noon, the infants are left alone and unsupervised in their cribs in the infant classroom. The staff person responsible for supervising the toddler classroom opens the door that joins the two classrooms together. One staff person cannot be responsible for supervising two classrooms at once. This has occurred on a daily basis for the past two months. · When the staff person responsible for supervising the infant classroom needs to leave the classroom temporarily, s/he opens the door in-between the toddler and infant classrooms or tells the person responsible for the care of the children in the toddler classroom that s/he needs to leave the infant classroom. The children in the infant classroom are left alone and unsupervised during the time the staff person leaves the classroom on a routine basis every day. · During naptime, the infants are left alone and unsupervised in the infant classroom in their cribs. The door adjoining the infant and toddler classrooms is left open. The staff person in the toddler classroom is instructed to listen for the infants in the infant classroom. When an infant wakes up, the staff person in the toddler classroom is instructed to get the infant back to sleep or leave the infant to play in his/her crib. This has occurred on a daily basis for the past two months. · When the infant staff person is working alone in the infant classroom and needs to prepare the lunch for the children at the center, the infants are placed in high chairs or bouncy seats in the eating area adjacent to the kitchen. The infant staff person is in the kitchen preparing the lunch, and the infants are left unsupervised in the eating area. This has occurred on a daily basis for the past two months. · When the infant staff person responsible for the supervision of the infants is working alone in the infant classroom, the staff person leaves the infants unsupervised in the infant classroom when s/he goes into the kitchen area to make puree and/or prepare the infants food. This has occurred on a daily basis for the past two months. The Toddler Classroom: · When the staff person responsible for supervising the toddler classroom routinely left the toddler classroom to check on the infants in the infant classroom during naptime, the toddlers were left alone and unsupervised in the toddler classroom. This has occurred on a daily basis for the past two months. · The toddler aged children are left unsupervised in the eating area during lunch time. When the toddler aged children are eating, the staff person responsible for supervision of the toddlers leaves the children alone and unsupervised in the eating area and returned to the toddler classroom to set out the cots in preparation for nap time. This has occurred on an occasional basis, up to several days a week in the past two months. Supervision occurs when a program staff person is accountable for the child's care and is 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. Rule/Statute Violated: Minnesota Statutes, section 245A.02, subdivision 18; and Minnesota Rules, part 9503.0045, subpart 1, item A. Your request for reconsideration: You denied all portions of the citation, stating that the violations did not occur, that the eating area is connected to the kitchen, and that you always have two staff persons in the infant classroom when there are more than four infants present. DHS’ response: License holders must carry out a child care program plan that mandates that children have supervision at all times. Minnesota Rules, part 9503.0045, subpart 1, item A. For licensed child care centers, supervision means that a program staff person is (1) accountable for the child’s care, (2) can intervene to protect the health and safety of the child, and (3) is within sight and hearing of the child at all times, with some exceptions for sleeping infants, school-age children, and preschoolers using a restroom.
There is sufficient information to support the cited violations. While you repeatedly stated in your request for reconsideration that there are always two staff persons in the infant room when there were more than four infants present, on the day of the licensing review, the DHS licensor observed one staff person supervising seven infants. Staff also identified instances where infants were left in the infant room while the staff person responsible for supervising the infants would prepare food for other infants in the kitchen. In addition, staff identified instances where the staff person in the toddler classroom would be tasked with supervising infants through the open door between the adjoining infant classrooms when infant staff left the infant room. Staff cannot supervise both the toddler room and infant room simultaneously. In addition, regarding supervision within the eating area while staff are preparing food in the kitchen prep area, you stated that the eating area is in the same room as the kitchen prep area. While a staff person in the kitchen prep area may be within sight and sound of infants in the eating area, the kitchen prep area and the eating area are two distinct spaces. The two spaces are divided by a countertop that runs across the middle of the room with a gate on one end. These physical dividers keep the children out of the kitchen prep area, but also serve as a barrier keeping a staff person from intervening as needed to protect the health and safety of a child. Staff cannot supervise children in the eating area when they are in the physically separated kitchen prep area. The citation is affirmed. 7. Violation: The program violated the behavior guidance policy prohibiting certain disciplinary actions. The following was determined through staff interviews: Use of mechanical restraints: · The infants are placed in high chairs and bouncy seats for extended periods of time so the staff person responsible for the care of infants can prepare lunch. · When the infants wake up from nap, they are left in their cribs when there is not an infant staff person to supervise them. Subjection of a child to corporal punishment: · A staff person in the preschool classroom routinely pulled children by the arm in a rough manner to get the child’s attention or to move the child towards or away from the handwashing sink. Subjection of a child to emotional abuse: · A staff person in the preschool classroom used inappropriate language that frightened the children. The staff person yelled at the children, making them cry. The staff person also told the children “you are retarded, don’t you speak English, what is wrong with you?” Rule/Statute Violated: Minnesota Rules, part 9503.0055, subpart 3. Your request for reconsideration: You stated that bouncy seats were never used in the eating area, that there are no high chairs in the eating area, and that there is an infant table on which infants eat their meals. You also stated that infants are never left unsupervised when they wake up after naps. Regarding subjecting a child to corporal punishment and emotional abuse, you stated that the staff person would never do such things. DHS’ response: License holders’ must have and enforce a policy prohibiting the use of mechanical restraints. Minnesota Rules, part 9503.0055, subpart 3, item G. Multiple staff identified instances where infants were placed in bouncers or the infant table/high chairs (based on the interviews, the term “high chairs” referred to the same item as “infant table”) so that the staff person supervising them – who also served as the program’s cook – could go into the kitchen prep area to prepare meals. In this context, the bouncers and infant table or high chairs served as a mechanical restraint. Staff interviews also indicated that when a toddler staff person was tasked with supervising both the toddlers and infants during nap time, if an infant woke up, staff would sometimes have them sit in the crib while awake. When a child finishes a nap but is forced to stay in the crib, the crib in this context serves a mechanical restraint. This portion of the citation of is affirmed. License holders must have and enforce a policy prohibiting staff from subjecting a child to corporal punishment, including rough handling. Minnesota Rules, part 9503.0055, subpart 3, item A. While you deny that the staff person in question would have done this, another staff person witnessed a preschool staff person roughly pull a child’s arm to move the child away from where the child was washing their hands. This portion of the citation is affirmed. License holders must have and enforce a policy prohibiting staff from subjecting a child to emotional abuse, including name calling, shaming, making derogatory remarks about the child or the child's family, and using language that threatens, humiliates, or frightens the child. Minnesota Rules, part 9503.0055, subpart 3, item B. While you deny that the staff person in question would have said anything unkind to a child, staff interviews indicates that some preschool staff persons were mean to children, including instances where staff would name call and shame children, using phrases such as “You are retarded…do you not speak English…what is wrong with you?” Such language falls under the meaning of emotional abuse. As such, this portion of the citation is affirmed. Citation 7 is affirmed. B. Reconsideration of the Conditional License Under Minnesota Statutes, section 245A.06, subdivision 1, when issuing a conditional license, the Commissioner must consider the nature, chronicity, or severity of the violation of the law or rule and the effect of the violation on the health, safety, or rights of persons served by the program. In its request for reconsideration, Little Sandbox challenged five of the nine citations, and requested that the Conditional License be rescinded. While Little Sandbox challenged the basis for many citations arguing that they did not occur, most of the violations cited were witnessed directly by a DHS licensor, or by Little Sandbox staff. Of the five challenged citations, four were found to be supported by the record and affirmed. In total, eight citations were either unchallenged or affirmed on reconsideration. Little Sandbox’s recent licensing history shows that many of the violations identified and affirmed here were repeat violations that were previously cited via correction order. · On November 22, 2019, Little Sandbox was issued an Order to Pay a Fine of $200 for background study violation. · On November 21, 2019, Little Sandbox was issued a correction order that identified 23 violations. · On March 31, 2022, Little Sandbox was issued a correction order that identified five violations, two of which were repeat violations. · On May 18, 2022, Little Sandbox was issued an Order to Pay a Fine for $1000 for background study violations. · The present Order of Conditional License identified nine violations, three of which were previously cited via correction order or fine. While the Commissioner appreciates Little Sandbox stated commitment to compliance, the nature of repeat violations indicate that Little Sandbox can benefit from additional oversight and licensing support. The need to maintain staffing ratios, provide the minimum statutory-required level of supervision, comply with background study requirements, and enforce program policies and licensing requirements is apparent in many of the violations. It is especially troubling that there is such a disconnect from what the license holder believes is happening in the center and what is actually happening in the center. For many of the challenged citations, the license holder denied that any violations occurred, even when the violations were witnessed by the DHS licensor or by Little Sandbox staff. It is concerning that such violations, even when corroborated by multiple staff and in some instances also witnessed by the DHS licensor, are dismissed by the license holder as merely “complaints” from “angry vindictive employees who walked off the job.” Additional oversight from DHS can help Little Sandbox meet its commitment to compliance. The Commissioner has considered the nature, chronicity, and severity of the licensing violations and determined that a conditional license is warranted. Based on the number and serious nature of the violations, as wells as the chronicity of the repeat violations, the Commissioner believes the program can benefit from additional oversight to ensure it can gain and continue compliance with licensing regulations. Based on the following factors, the Commissioner has determined that the record supports the Order of Conditional License: · Background Studies DHS identified one background study violation when the licensor holder allowed a staff person to begin working prior to submitting a background study request. Little Sandbox was cited for six similar violations within the past three years, in fine orders dated May 18, 2022, and November 21, 2019. Background study violations are very serious as background studies help ensure that individuals who pose a risk of harm to children do not have access to children in the program. These violations alone may warrant a conditional license. · Staff Qualifications and Training DHS affirmed three violations related to staff qualifications and training, specifically, failure to maintain required staff-to-child ratios, mixing infants with toddlers during the program’s regular hours of operation, and failure to maintain documentation that several staff persons received orientation training, which is required prior to working with children. Regarding the failure to maintain staff-to-child ration, it is apparent from the number of instances identified where ratios were not maintained, that Little Sandbox has difficulty keeping an appropriate number of qualified staff persons on staff on site, which led to regularly combining toddlers and infants during the day. In addition, the orientation training that five staff persons did not complete included essential training on topics including, risk of abusive head trauma, allergy prevention and response, behavior guidance policy standards, the child care program plan and center’s philosophy, handling emergencies and accidents, specific job responsibilities, maltreatment reporting requirements, the program’s risk reduction plan, and sudden unexpected infant death. These trainings are critical to the health and safety of children in the program, as they establish the minimal health and safety standards on how to care for children in the licensed program. These violations are concerning because not only did Little Sandbox fail to provide the required minimum number of staff for children present, but also failed to ensure several off the staff working had completed the minimum training required to start caring for children. These violations alone warrant a conditional license. · Supervision DHS cited one violation which identified several instances and practices related to supervision. Children in the infant room were left without a staff person in the room, and staff from the adjoining toddler room would attempt to supervise through the open door. At other times, children were left unsupervised in the eating area as the only staff person within sight and sound was performing cooking and food prep duties while separated by a physical barrier in the kitchen prep area, limiting their ability to intervene to assist children if needed. This violation alone warrants a conditional license. · Behavior Guidance DHS issued one citation consisting of three violations related to behavior guidance. One was for corporal punishment when a staff person roughly handled a preschooler by pulling roughly on their arm. Another violation was when a staff person emotionally abused a preschooler by name calling and shaming. The third violation was when staff used mechanical restraints in lieu of appropriate supervision: infants were put into bouncers and an infant table so that the staff person watching them could go into the kitchen prep area and begin cooking and preparing food; infants waking from naps were left to sit in the crib if the staff person tasked with supervising them was in the adjoining toddler room. While these violations alone may not warrant a conditional license due to their limited number, taken as a whole with the other violations, however, they support the conditional license order. · Personnel Files DHS cited one violation related to personnel files. Personnel records were not maintained at the program for five staff members. Staff personnel files are critical to ensuring the safety of children served by the program, as they help ensure that staff have the appropriate qualifications, have background studies, and have received the required training. While these violations alone may not warrant a conditional license due to their limited number, taken as a whole with the other violations, however, they support the conditional license order. · Policies and Administrative Records DHS cited one violation related to policies and administrative records. Little Sandbox did not enforce a policy prohibiting 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. A staff person was told that they had to come in to work even though they were still under the influence of medication administered at a medical appointment; the medication caused drowsiness, and the staff person fell asleep on the floor of the infant classroom for approximately 45 minutes. While this violation alone may not warrant a conditional license, taken as a whole with the other violations, they support the conditional license order. Ø Based on the specific factors above, an Order of Conditional License is warranted to ensure that Little Sandbox understands the relevant licensing requirements and is able to come fully into compliance. Due to the need to monitor Little Sandbox for compliance with applicable licensing laws and rules, and to ensure the health and safety of children served by the program, the Commissioner affirms the June 8, 2022 Order of Conditional License. The period of the conditional license is two years, beginning on the date of this letter. Because the terms of your conditional license were stayed pending a decision on your request for reconsideration, the terms of the conditional license begin from the date of receipt of this letter. C. Terms of the Conditional License In addition to the child care licensing rules and statutes, you are required to comply with the following terms: 1. Within 15 days from receipt of this order, you must provide written notification of the conditional status of your license to all parents/legal guardians. Prior to providing the written notification to all parents/legal guardians, you must submit the written notice to your DHS licensor for approval. The notification must specify the length of time of the conditional status of your license, the reasons your license was made conditional, and must include either a copy of the Order of Conditional License or an offer to provide a copy of the order upon request. 2. On an ongoing basis while your license is on a conditional status, you must maintain a list of all newly hired employees who will have direct contact with children served by the program. The documentation required under this term must be maintained onsite and made immediately available to DHS upon request. For each individual on the list, you must document the following: · the individual’s full name; · the individual’s job title; · the date of hire; · the date the individual first had direct contact with children served by the program; and · the date the background study request was submitted to DHS. 3. Within 45 days from receipt of this order, you must ensure that all staff persons have successfully completed training as required under Minnesota Statutes, section 245A.40, as well as training on your risk reduction plan as required under Minnesota Statutes, section 245A.66, subdivision 3. You also must ensure that new hires successfully complete all applicable training. You must maintain documentation of the completed training in each staff person’s personnel record. 4. On a monthly basis while your license is on conditional status, you must complete staffing patterns that identify every staff person and his/her job title included in the staff-to-child ratio for each classroom and maintain completed staffing patters onsite. The staffing information must be completed separately for each classroom, and must include the total number of children in attendance each hour for each classroom. The documentation must include the time each person takes their break, if applicable, and identify the name of the person who replaces them. Staffing patterns must be completed at the beginning of each month and made immediately available to the Commissioner upon request. 5. You must develop a detailed supervision plan to ensure that children will be supervised by program staff persons at all times, consistent with the definition of supervision under Minnesota Statutes, section 245A.02, subdivision 18, and in compliance with the risk reduction plan requirements under Minnesota Statutes, section 245A.66, subdivision 2, paragraph (f), (1) through (5). Within 30 days from receipt of this order, you must submit the supervision plan to your licensor for approval. 6. Within 30 days after the supervision plan is approved by your licensor, you must provide training to all staff on the supervision plan and maintain documentation of the training in each staff person’s personnel record. You must also ensure new hires receive the same training and document the training in each new hire’s personnel record. Your licensor will monitor your compliance with all applicable laws and rules. Verification of compliance may include unannounced visits. Failure to comply with the requirements in Minnesota Rules, parts 9503.0005 to 9503.0170 (DHS Rule 3), Minnesota Statutes, chapter 245A (Human Services Licensing Act), Minnesota Statutes, chapter 245C (Human Services Background Study Act), Minnesota Statutes, chapter 260E (Reporting of Maltreatment of Minors) and with the terms of your conditional license may result in further negative action, including revocation of your license. D. POSTING the Order of Conditional License Under Minnesota Statutes, section 245A.06, subdivision 8, you must post the Order of Conditional License in a place that is conspicuous to the people receiving services and all visitors to the facility for two years. This is a final agency decision and is subject to further review only by the Minnesota Court of Appeals. Please note that there are time limits for seeking review by the Minnesota Court of Appeals. See Minnesota Statutes, Chapter 606 and Minnesota Rules of Civil Appellate Procedure, Rule 115. If you have any questions regarding the Order of Conditional License, please contact Kerri Leuth, Unit Supervisor, at (651) 431-2828. Sincerely,  Afsheen Foroozan, Attorney Legal Counsel’s Office Office of Inspector General 1 Minnesota Statutes, section 245A.06, subdivision 2, paragraph (a) requires the requests for reconsideration be postmarked and sent to the commissioner. 2 The record indicates that the Bright Wheel times was recording times as one hour later than the actual time (perhaps due to time zone settings). During a subsequent licensing visit, the program director demonstrated use of Bright Wheel to DHS licensor, during the demonstration times were recorded as exactly one hour than the later time. Further, once that hour is accounted for, the Bright Wheel records reflect the observations of the DHS licensor and staff persons. Based on this, the times you cited in your request for reconsideration are not accurate.
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