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March 2, 2023 Rachel Jee Crowley, Authorized Agent Tierra Encantada Bryant 2700 30th Ave South Minneapolis, MN 55406-1606 License Number: 1083416 (Child Care Ctr) Program Location: 411 E. 38th Street, Minneapolis, MN 55409-1346 Report Number: 202110182 Dear Rachel Jee Crowley: The Minnesota Department of Human Services (DHS), Division of Licensing, received your request for reconsideration of Citations 1, 2, 3, 4, 5, 6, 7, and 8 from the Correction Order issued to you by the Department of Human Services on December 20, 2021. SUMMARY OF CITATIONS AND RECONSIDERATION DETERMINATION: Citation 1. Staff distribution requirements were not maintained. A teacher or assistant teacher did not directly supervise an aide. On the day of the licensing review, an aide was supervising four infants. A teacher qualified staff person was required. (Infant A classroom: Infant classroom) Your Response. You stated that the center director was in the classroom and the director qualifies as lead teacher, and was only outside of the classroom for six minutes, during which unqualified sub-hours could be used for the aide who remained in the classroom. Applicable Law. Except as provided in item B, staff distribution within each age category must follow the pattern in subitems (1) to (4). (1) The first staff member needed to meet the required staff-to-child ratio must be a teacher. (2) The second staff member must have at least the qualifications of a child care aide. (3) The third staff member must have at least the qualifications of an assistant teacher. (4) The fourth staff member must have at least the qualifications of a child care aide. The pattern in subitems (1) to (4) must be repeated until the number of staff needed to meet the staff-to-child ratio for each age category has been achieved. Minnesota Rules, part 9503.0040, subpart 2, item D. In this part, "aide" means a staff person who carries out child care program activities under the supervision of a teacher or assistant teacher. An aide who is under 18 years old must be directly supervised by a teacher or assistant teacher at all times except when the aide is assisting with the supervision of sleeping children or assisting children with washing, toileting, and diapering. An aide must be at least 16 years old. Minnesota Rules, part 9503.0034, subpart 1.
Reconsideration Determination. The licensor observed an aide supervising 4 infants with no other staff persons present. The director said that she was working in the classroom earlier, but left when the licensor arrived. The director did not state that the center was using unqualified substitute hours for the classroom, and there was no log for the unqualified substitute hours. The unqualified substitute report that you submitted with your reconsideration request was neither shown to the licensor while on-site, nor was it mentioned during the exit interview. As such, the record does not indicate that the any staff person was actually designated as an unqualified substitute at the time the licensor observed the violation. You are required to be in compliance with distribution requirements at all time. Because you were not in compliance during the licensor’s visit, there is sufficient evidence to support the violation, and Citation 1 is affirmed. Citation 2. The program was not operating within the terms of the license. Through interviews with staff persons and documentation submitted by the provider, it was determined, from June 21, 2021, to September 3, 2021, the gym was used as a preschool classroom. DHS, licensing had not approved the gym to be used as a classroom. The license holder must notify the commissioner and obtain the commissioner’s approval before making any changes that would alter the license information. (Gym: Facility, Preschool classroom) Your Response. You stated that the center submitted a variance in July 2019 that remains active, and that this violation was due to a miscommunication between the previous licensor and current licensor. Applicable Law. A license holder must notify the commissioner, in a manner prescribed by the commissioner, and obtain the commissioner's approval before making any change that would alter the license information listed under subdivision 7, paragraph (a). Minnesota Statutes, section 245A.04, subdivision 7a, paragraph (a).
Reconsideration Determination. DHS did not grant a variance allowing the program to use the gym as a classroom. The record demonstrates that the request was to increase the programs licensed capacity for preschoolers. However, while the overall licensed capacity increased to 66, the combined capacity of the three preschool classrooms was 56 children. This is based on the square footage of the classrooms, and the requirements of 35 square feet of space per child. The DHS licensor discussed this with you on June 9, 2021, and also discussed how the preschoolers could rotate through the facility to maintain compliance. The DHS licensor also emailed you a copy of the program’s floor plan, which included the maximum capacity in each space, so you would be aware of the maximum capacity of each classroom and space. The floor plan indicated that the gym had a maximum capacity of 17 children and was not designated as a classroom. DHS was never informed that the gym would be used as a classroom, nor did the program provide an updated floor plan indicating the planned use of the gym. However, the program was operating within the terms of its license. The license issued on January 1, 2021, and expiring on December 31, 2021, listed a capacity as 66 preschoolers. There is no information in the record that the program made a change without the commissioner’s approval to any license information listed under Minnesota Statutes, section 245A.04, subdivision 7a, paragraph (a). Citation 2 is rescinded. Citation 3. A minimum of 35 square feet of indoor space was not available for each child in attendance. Through interviews with staff persons and documentation submitted by the provider, it was determined, on several days between January 18, 2021 and June 18, 2021, more than 20 children were in the Pre-K classroom. The licensed capacity of the Pre-K classroom is 20 children. (Pre-K classroom: Preschool classroom) Your Response. You stated that the center has always had adequate space for children in attendance, and that the licensor incorrectly asked teachers if they moved children around to other classrooms. You also stated that classrooms were not out of ratio and classrooms always met the requirements of 35 square feet per child. Applicable Law. The licensed capacity of the center must be limited by the amount of indoor space. A minimum of 35 square feet of indoor space must be available for each child in attendance. Hallways, stairways, closets, utility rooms, lavatories, water closets, kitchens, and space occupied by cribs may not be counted as indoor space. Twenty-five percent of the space occupied by furniture or equipment used by staff or children may be counted as indoor space. Minnesota Rules, part 9503.0155, subpart 9.
Reconsideration Determination. The Pre-K classroom measures 697 square feet, when applying the requirement of 35 square feet per child, that calculates to a maximum capacity of 20 children. Three out of four staff persons, including the director, stated that on several days between January 2021 and June 2021 that there were more than 20 students in the classroom. The director added that, because the Pre-K room was over capacity, the center created a new classroom in the gym for the extra students. Because there were more than 20 students in the Pre-K room on several occasions, there is sufficient evidence to support the violation, and Citation 3 is affirmed. Citation 4. Documentation was not available on site to verify that before starting assigned duties, 2 of 11 (SP1 and SP10) individuals (director, staff persons, substitutes, or unsupervised volunteers) received orientation training on: the risk of abusive head trauma that was at least one half hour in length as required under subdivision 5a (SP10); program's drug and alcohol policy under section 245A.04, subdivision 1, paragraph (c) (SP1); and sudden unexpected infant death that was at least one half hour in length as required in subdivision 5 (SP10). Your Response. You stated that all staff persons received the required training during orientation, and that all staff persons have been trained in SUID training, Abusive Head Trauma, and other orientation training, and this training is reflected on their orientation records, new hire checklists, and in-service training records. You stated that these forms were complete, in the staff persons’ electronic ProCare files, and available for the licensor to review if necessary. Applicable Law. The child care center license holder must ensure that the director, staff persons, substitutes, and unsupervised volunteers are given orientation training and successfully complete the training before starting assigned duties. Minnesota Statues, section 245A.40, subdivision 1. The license holder shall develop program policies and procedures necessary to maintain compliance with licensing requirements under Minnesota Statutes and Minnesota Rules. (b) The license holder shall: (1) provide training to program staff related to their duties in implementing the program's policies and procedures developed under paragraph (a). Minnesota Statutes, section 245A.04, subdivision 14, paragraph (b)(1).
Reconsideration Determination. During the licensor’s visit, the licensor, the director, and the assistant director each reviewed the physical and electronic training records for both SP1 and SP10. During this review, none of them were able to locate the documentation proving their orientation training was in compliance. One of the staff person’s records did not list a date for drug and alcohol training. The training records that were provided in your reconsideration request were not available to the licensor during their on-site visit. The other set of records did not list the length of time for either the AHT or SUID training, and the information was also not available during the exit interview. The training records that were provided in your reconsideration request were not available to the licensor during their on-site visit. Because the documentation was not available during the licensor’s visit, there is sufficient evidence to support the violation, and Citation 4 is affirmed. Citation 5. The program did not comply with cardiopulmonary resuscitation (CPR) training requirements. Documentation was not available on site to show that 1 of 6 (SP3) individuals (director, staff persons, substitutes, or unsupervised volunteers) had satisfactorily completed the required pediatric CPR training including the treatment of obstructed airways and a hands-on skill assessment within 90 days of the start of work or within the previous two years (SP3). Your Response. You stated that SP3 completed an online version of CPR training which included the treatment of obstructed airways. You also stated that the hands-on portion of this training, which simulated the implementation of chest compressions using a computer mouse, qualified as adequate training during the COVID emergency. Applicable Law. Pediatric CPR training must cover CPR techniques for infants and children and the treatment of obstructed airways, and include instruction, hands-on practice, and an in-person, observed skills assessment under the direct supervision of a CPR instructor. Minnesota Statutes, section 245A.40, subdivision 4, paragraph (c); and Minnesota Rules, part 9503.0120, item D.
Reconsideration Determination. Your request for reconsideration is based on your belief that using a computer to mouse to simulate chest compressions during an online course is sufficient to meet the hands-on, in-person, observed skills assessment portion of the training requirement. According to the National CPR Foundation website, the National CPR Foundation does not offer hands-on training. Simulating the implementation of chest compressions by using a computer mouse during an online training course does not meet the requirements for “hands-on practice, and an in-person, observed skills assessment under the direct supervision of a CPR instructor.” The COVID-19 Peacetime Emergency Modification to Licensing Requirements required that individuals who completed a virtual CPR training that did not include “a hands-on skills assessment portion of the virtual training was conducted in a 1:1 format, with live video where the person receiving the training had a CPR dummy and could demonstrate skills while the instructor was able to assess the skills in real-time” to complete a hands-on skill assessment training by August 30, 2021. Because SP3 was hired during the COVID-19 emergency, and the CPR training they received did not include a compliant hands-on skill assessment portion of virtual training, SP3 was required to complete hands-on training by August 30, 2021, which SP3 did not complete. There is sufficient evidence to support the violation, and Citation 5 is affirmed. Citation 6. The program did not comply with child development and learning training requirements. Documentation was not available on site to show that 6 of 8 (SP2, SP4, SP6, SP7, SP8 and SP9) individuals (director, staff persons, substitutes, or unsupervised volunteers): completed training that was at least two hours in length (SP2, SP4, SP6, SP7 and SP9); and completed training within 90 days of employment (SP8). Your Response. You stated that the aforementioned staff members completed two hours of Child Care Development, Cultural Dynamics, and Disabilities training on October 15, and that the classes were through Texas A&M and have been previously approved by a DHS licensor. You also stated that you verified attendance for the training, each training was two hours, and each training is included in orientation before staff persons enter the classroom. Applicable Law. The director and all staff persons, substitutes, and unsupervised volunteers shall complete child development and learning training within the first 90 days of employment. The director and staff persons, not including substitutes, must complete at least two hours of training on child development and learning. The training for substitutes and unsupervised volunteers is not required to be of a minimum length. For purposes of this subdivision, "child development and learning training" means any training in Knowledge and Competency Area I: Child Development and Learning, which is training in understanding how children develop physically, cognitively, emotionally, and socially and learn as part of the children's family, culture, and community. Minnesota Statutes, section 245A.40, subdivision 2.
Reconsideration Determination. The center provided the licensor with documentation stating that the aforementioned SPs completed child development and learning training, however, the training was not at least two hours in length. The Staff Orientation Training Record form contains a section specifically to identify the number of hours of Child Care Development and Learning training completed. For three staff persons, the records identified a date the training was completed, but did not state the number of hours of training completed. For two staff persons, the records identified the date training was completed, and stated that one hour of training was completed. For one staff person, the record did not contain a date of completion for the training. As such none of the staff persons identified in the citation had documentation in the record that they completed the two hours of training as required. There is sufficient evidence to support the violation, and Citation 6 is affirmed. Citation 7. The license holder did not have a written emergency plan that included: procedure for storing a child's medically necessary medicine that facilitates easy removal during an evacuation or relocation; and procedure for continuing operations in the period during and after a crisis. Your Response. You stated that the center has not made any changes to the emergency plan since 2017. Applicable Law. A licensed child care center must have a written emergency plan for emergencies that require evacuation, sheltering, or other protection of a child, such as fire, natural disaster, intruder, or other threatening situation that may pose a health or safety hazard to a child, including procedures for storing a child's medically necessary medicine that facilitates easy removal during an evacuation or relocation and procedures for continuing operations in the period during and after a crisis . Minnesota Statutes, section 245A.41, subdivision 3.
Reconsideration Determination. During the licensor’s review of the center’s Shelter-in-Place/Lockdown Procedures, the licensor found the section titled “Emergency Kit for Evacuation for Shelter-in-Place/Lockdown Situations” was blank. The licensor also found that the “Any Additional Considerations for Operations” section stated that “controlling individuals” would make decisions about the continuation of operation. However, Continuing Operations Procedures section did not actually identify anyone controlling individual by name or position. This does not sufficiently provide staff with guidance on who would make decisions regarding continuing operations. While you state that your plan has been unchanged for several years and were not previously cited for this issue, it is the license holder’s responsibility to maintain compliance with applicable regulations at all times. There is sufficient evidence to support the violation, and Citation 7 is affirmed. Citation 8. The license holder did not review and update the emergency plan annually. There was no documentation to verify that an annual review and update of the center's emergency plan was done in 2020. "Annual" or "annually" means prior to or within the same month of the subsequent calendar year. Your Response. You stated that the center has not made any changes to the emergency preparedness plan since 2017, and that you review the plan on a yearly basis. Applicable Law. The license holder must review and update the emergency plan annually. Documentation of the annual emergency plan review shall be maintained in the program's administrative records. Minnesota Statutes, section 245A.41, subdivision 3, paragraph (d).
Reconsideration Determination. While on-site, you provided the licensor with documentation that the plan was reviewed in 2020. Because the plan was reviewed on an annual basis, the evidence does not support this violation, and Citation 8 is rescinded. Disposition: The Commissioner has reviewed the relevant laws and all of the information you submitted in response to the Correction Order. Citations 1, 3, 4, 5, 6, and 7 are supported by the record and affirmed. Citations 2 and 8 are rescinded. This is a final agency decision. The Commissioner appreciates your response and encourages you to continue to work cooperatively with your licensor to ensure the safety and well-being of the children you serve. Sincerely,  Afsheen Foroozan, Attorney Legal Counsel’s Office Office of Inspector General
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