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SECOND 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 through maltreatment.” FIRST NOTICE: This Amended Maltreatment Investigation Memorandum supersedes a version dated April 23, 2021, which should be destroyed. The original included a citation for childcare supervision, but it did not include the corresponding Correction Order to address the citation. The amended version includes the Correction Order. SECOND NOTICE: This Second Amended Maltreatment Investigation Memorandum supersedes an amended version dated May 26, 2021, which should be destroyed. As a result of an administrative reconsideration, the original determination that SP1 and SP2 were responsible for maltreatment was rescinded, and the disposition was changed to a “nonmaltreatment mistake.” The original correction order remained final and conclusive. For additional information, see Administrative Reconsideration section of this document.
License Number and Program Type: 1037693-CCC (Child Care Center) Investigator(s): Kimberly Huettl Anderson
Suspected Maltreatment Reported: It was reported that an alleged victim (AV) left the facility’s gymnasium without staff persons’ knowledge or supervision and was found in the facility’s kitchen. Date of Incident(s): January 22, 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 for this investigation was obtained remotely, including documentation from the facility; and through six interviews conducted with facility staff persons. Notification regarding the investigation was made to the AV’s family member (FM), but the FM did not provide information for this report. The AV’s Enrollment Record stated that the AV was fifteen months old at the time of the incident and enrolled in the facility’s infant/toddler classroom. (Note: The facility had a variance to combine the infant and toddler classrooms and they maintained the lowest staff to child ratio. Minnesota Rules, part 9503.0040, subpart 1 stated that the minimum staff to child ratio for infants was one staff person to four children.) A floor plan of the facility showed that the facility was located within a public building that also contained office space for city officials and a post office. There were three other entry doors to the portion of the building where the facility and the city official office space was located. The three doors were locked and allowed access only to authorized persons to enter the building. The facility consisted of four classrooms located on one side of the hallway and each classroom had a door that entered from the hallway. On the other side of the hallway were doors to a gym, bathrooms, and three offices spaces which were also used by the city officials. Located off of a connecting hallway and adjacent to the gym was a kitchen that was also connected to the gym by a half door. The gym had stairs that led to a stage and a storage closet for equipment. The post office had a separate entry door for public use. A facility management person’s (P1) written documentation stated that on January 22, 2021, two staff persons (SP1 and SP2) were in the gym with six children. While SP1 was sanitizing and putting equipment away into the storage closet, SP2 was supervising the six children when the AV walked through a half door that was not locked and into the facility’s kitchen. SP2 was not aware that the AV left until a staff person (P2) brought the AV back to the gym. Facility documentation and interviews with P1, P2, a staff person (P3), a facility management staff person (P4), SP1, and SP2 provided the following information: · On January 22, 2021, at approximately 10:30 a.m., P2 was coming into the building from an outside door located next to the kitchen and saw the AV in the kitchen but did not see a staff person with the AV. When the AV saw P2, the AV was walking toward the hallway and then turned around and walked back to the gym. P2 followed the AV and when they reached the gym P2 talked to SP1 who was not aware that the AV had left the gym. SP1 told P2 and this investigator that s/he did not realize that the half door between the kitchen and the gym was not locked. · P1-P4, SP1, and SP2 each stated that the half door between the kitchen and the gym was to be locked from the kitchen side. The kitchen was not being used on the day of the incident and all chemicals were stored in a locked cabinet or out of reach of the AV. The AV was not able to access any appliances or sharp objects. (Note: Requests for photos of the kitchen were made, but at the time of this report the facility had not provided them to this investigator.) · P1, P3, and P4 were not at the facility at the time of the incident, but were notified “immediately” of the incident and P3 notified the FM. · SP1 stated that at the time of the incident while s/he was supervising the children, SP2 was sanitizing toys and putting them into the gym storage closet. SP1 did not see the AV leave the gym and did not know that s/he was gone until P2 walked into the gym with the AV. SP1 said that s/he remembered seeing the AV just before s/he redirected some children off of a set of stairs in the gym and the children from riding their bikes onto the infant play area. So s/he believed the AV was out of his/her sight and supervision for less than one minute. · Due to the COVID-19 pandemic, the protocol for sanitizing the toys when finished required a staff person to sanitize the toy and then put it in the storage closet. At the time of the incident, SP2 was sanitizing the toys and putting them into the storage closet. SP2 was not supervising the children at this time and did not know that the AV left the gym. · According to P3 and P4, staff persons were to sanitize toys before putting the toys into the closet, but were not required to sanitize the toys inside the closet. The best practice was to sanitize the toy while in the gym area to maintain visual supervision of the children and then to put the toy inside the closet after it was sanitized. · SP1 and SP2 were trained to keep the children within their sight at all times. The facility’s Child Care Risk Reduction Plan stated that staff persons were to position themselves in the classroom so that all areas of the room could be seen. Staff persons were to use active supervision and supervise children at all times so that a child was never left alone. The facility’s Employee Handbook described active supervision as an active skill for staff person to use to focus attention and intentional observation onto the children at all times. The facility’s personnel files showed that all staff persons interviewed were trained on the Reporting of Maltreatment of Minors Act and on the facility’s Child Care Center Risk Reduction Plan 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, state that “supervision” means a program staff person 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; and that children are required to be supervised at all times. Conclusion: A. Maltreatment: On January 22, 2021, the AV left the gym without SP1’s or SP2’s knowledge or supervision and was found in the facility’s kitchen by P2, which was a violation of Minnesota Statutes 245A.02, subdivision 18 and Minnesota Rules, part 9503.0045, subpart 1, item A. Given that the AV’s age, that there are obvious risks of harm in a kitchen, and that the AV was without staff supervision, there was a preponderance of the evidence that there was a failure to supply the AV with necessary care and a failure to protect the AV from conditions that seriously endangered his/her physical health when reasonably 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 and 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. Although SP2 was sanitizing toys as required by the pandemic protocols, SP2 remained responsible for the supervision of the children in the gym and was required to maintain visual supervision of the children while sanitizing the toys before putting the toys in the closet. Given that SP1 and SP2 were each responsible for the care and supervision of the AV but were not aware that the AV left the gym and that SP1 and SP2 were trained to have sight supervision of the children at all times and on the facility’s Child Care Center Risk Reduction Plan and the Reporting of Maltreatment of Minors Act prior to the incident, SP1 and SP2 were each responsible for the maltreatment of the AV. C. Recurring and/or Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by an individual meets the statutory criteria to be determined as “recurring or serious.” Individuals determined to be responsible for recurring or serious maltreatment are disqualified from providing direct contact services. Minnesota Statutes, section 245C.02, subdivision 16, states: “Recurring maltreatment” means more than one incident of maltreatment for which there is a preponderance of evidence that maltreatment occurred and that the subject was responsible for the maltreatment. 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 neglect for which SP1 and SP2 were each responsible did not meet statutory criteria to be determined as recurring because this was a single incident of maltreatment or serious because the AV was not injured as a result of the incident and did not reasonably require the care of a physician 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 their policies and procedures are adequate but were not followed at the time of the incident. SP1 and SP2 were retrained on the facility’s supervision requirements. In addition, the facility developed a plan for staff persons to check the half door between the kitchen and the gym to ensure that it is locked upon entering the gym and that when one staff person was required to sanitize the toys, two staff persons will be required to supervise the children. Action Taken by Department of Human Services, Office of Inspector General: SP1 and SP2 were not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, SP1 and SP2 were each notified by the Office of Inspector General that any further substantiated act of maltreatment, whether or not the act meets the criteria for “serious,” will automatically meet the criteria for “recurring” and will result in the disqualification of SP1 and SP2. The determination that SP1 and SP2 were responsible for maltreatment is subject to appeal. On May 26, 2021, the facility was issued a Correction Order for the violation outlined in this report. 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. Administrative Reconsideration: The disposition of the investigation is amended from substantiated maltreatment of the AV by SP1 and SP2 to nonmaltreatment mistake. To the extent that the language in the Administrative Reconsideration conflicts with the language in the remaining part of the Amended Investigative Memorandum, the language in the Administrative Reconsideration controls. The disposition was amended based on the following: Amended Summary of Findings: Minnesota Statutes, section 260E.30, subdivision 3, paragraph (b) states that a nonmaltreatment mistake occurs when: (1) at the time of the incident, the individual was performing duties identified in the center's child care program plan required under Minnesota Rules, part 9503.0045; (2) the individual has not been determined responsible for a similar incident that resulted in a finding of maltreatment for at least seven years; (3) the individual has not been determined to have committed a similar nonmaltreatment mistake under this paragraph for at least four years; (4) any injury to a child resulting from the incident, if treated, is treated only with remedies that are available over the counter, whether ordered by a medical professional or not; and (5) except for the period when the incident occurred, the facility and the individual providing services were both in compliance with all licensing requirements relevant to the incident. At the time of the incident, SP1 and SP2 were supervising children in the gym. Supervision is a duty identified in the facility’s child care program plan. The AV left the gym through an unlocked door and went into the facility kitchen without SP1’s and SP2’s knowledge and supervision. P2 found the AV and returned him/her to the gym without injury. SP1 and SP2 were not previously found responsible for maltreatment or nonmaltreatment mistake. Outside of this incident, the facility, SP1, and SP2 were in compliance with all relevant licensing requirements. Amended Conclusion: The actions of SP1 and SP2 fit the statutory definition of nonmaltreatment mistake under Minnesota Statutes, section 260E.30, subdivision 3, paragraph (b). Therefore, the maltreatment determination is reversed, and the IM is amended to reflect that the actions of SP1 and SP2 constitute a nonmaltreatment mistake. Under Minnesota Statutes, section 260E.35, subdivision 6, paragraph (b), the investigative data in this report will be maintained by the Department of Human Services for a period of five years. Amended Action Taken by Department of Human Services, Office of Inspector General: SP1 and SP2 were each notified that they were no longer responsible for the maltreatment by neglect of the AV. SP1 and SP2 were no longer substantiated as perpetrators of maltreatment of the AV because the Department of Human Services found that the incident for which each was responsible met the criteria to be determined a nonmaltreatment mistake. SP1 and SP2 were notified by the Office of Inspector General that any future incident of possible neglect of an alleged victim for which each might be responsible might not be considered a nonmaltreatment mistake.
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