|
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.” NOTICE: This Amended Maltreatment Investigation Memorandum supersedes a version dated September 14, 2022, 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of an administrative reconsideration, the original determination that SP1 and SP2 were responsible for maltreatment was rescinded, and the disposition was changed to a “nonmaltreatment mistake.”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 the Administrative Reconsideration section of this document.
License Number and Program Type: 1025224-CCC (Child Care Center) Investigator(s): Beth Virden Suspected Maltreatment Reported: It was reported that a gate was left open on the facility’s playground allowing four alleged victims (AV1-AV4) to leave without supervision. AV1-AV4 were discovered an unknown time later by a staff person, unharmed. Date of Incident(s): July 6, 2022 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 August 10, 2022; from documentation at the facility; and through interviews conducted with AV1’s and AV4’s family members (FM1 and FM4, respectively), facility staff persons (SP1 and SP2), and a facility supervisory staff person (P). AV2’s and AV3’s family members (FM2 and FM3, respectively) were also contacted, but did not provide additional information. AV1-AV4 were not interviewed due to their ages at the time of the incident. AV1-AV4 were each enrolled in the facility’s “Discovery Preschool” (toddler-aged) classroom. At the time of the incident, AV1 was two years old; AV4 was about to turn two; and AV2 and AV3 were each around 22 months old. The facility provided childcare services to children, infant to school age. The facility was a stand-alone building with a parking lot in front that connected to the parking lots of other nearby businesses, including a strip-mall and a bank. The surrounding area included the intersection of Highway 5 and Highway 41 with traffic signals, at least three small ponds with standing water, a wooded area, farming land, and community residences. There were playgrounds situated around the building for the different age groups. The Discovery Preschool playground was on the east side of the building and fully enclosed by a chain-link fence and portions of the building, itself. Consistent information was provided by SP1, SP2, and the P that the staff and children typically accessed the playground through an exterior door on the building, which opened directly onto the playground. There were two gates in the chain-link fence: one was typically, but rarely, used by lawn care workers who needed to access the playground, and the other, according to SP1, SP2, and the P, was never used. This gate opened onto a sidewalk that separated the building from the parking lot. At the time of this incident, this gate was secured with an attached metal locking device; however, if the device was not correctly in place, the gate could be pushed open. (Note: Based on this investigator’s observations at the time of the site visit, it would be difficult to determine if the locking device was correctly in place when looking at it from a distance.) SP2 provided the following information regarding this incident: · SP1 and SP2 had been working together in the Discovery Preschool classroom for some time. They were “regular coworkers.” · SP2 had previous concerns with SP1’s conduct, which s/he had brought to the P’s attention more than once; however, “nothing changed.” According to SP2, SP1 had a history of spending a lot of time “staring at the (classroom) iPad” and not enough time paying attention to the children. · On the day of the incident, July 6, 2022, SP1 and SP2 were working together in the Discovery Preschool classroom. Around 10:30 a.m., they took the children outside to the playground. At that time, there were 14 children in attendance, including AV1-AV4. · SP2 was walking around the playground “checking diapers and counting kids.” SP1 was sitting at a picnic table looking at the classroom iPad. · After about ten minutes, SP2 told SP1 that s/he was going inside the building to use the restroom. SP2 believed SP1 heard him/her, because SP1 looked at SP2 and “did a nod.” · SP2 then went inside to use the restroom, returning to the playground within one to two minutes. When SP2 returned to the playground, s/he saw SP1 still sitting at the picnic table looking at the iPad. “[SP1] was still staring at it.” SP2 stepped further onto the playground, and upon glancing to his/her left, s/he immediately saw a playground gate open; the one that was “never used” and opened into the parking lot. There was one child standing in the gate opening about to step out, and there were at least three other children on the sidewalk headed around the building. SP2 ran toward the gate and yelled to SP1, “The gate is open.” According to SP2, SP1 did not move from the picnic table or help in any way. · SP2 ran through the gate and yelled back to SP1, “Count the kids.” SP2 came upon one child about three feet out of the gate opening. SP2 then saw two more children walking along the front of the building on the sidewalk about ten feet from the gate. SP2 gathered these three children (AV2-AV4) and returned them to the playground. SP2 asked SP1 if s/he counted all of the children and SP1 said, “Yes.” SP2 did not count the children at that time, but closed the gate and remained outside of the playground. SP2 then retraced his/her steps along the front of the building, and upon doing so, saw AV1 walking “on the opposite end of the building.” SP2 explained the area to this investigator, and said that had AV1 walked a little further up a hill, s/he would have been standing on a “busy road.” SP2 said that although SP1 said s/he counted the children, SP2 did not believe this was possible since AV1’s absence went unnoticed by SP1. · According to SP2, SP1 would have been able to see the gate from his/her location at the picnic table. · SP2 said that s/he had concerns with the facility’s training. According to SP2, s/he was never trained on the facility’s playground procedures. SP2 had been initially hired to work in the infant classroom, which did not require training for the playground. When SP2 transferred into the Discovery Preschool classroom, there was no additional training, including the playground procedures. · SP2 said that s/he was never trained to check the playground fence prior to allowing children access. SP2 mentioned the Daily Playground Inspection, which contained a checklist of things to check on the playground, and instructed staff, “The Daily Playground Inspection must be done each morning prior to children entering the playground.” This checklist included checking to ensure the gates were “securely closed.” SP2 said that s/he had never seen this checklist before and as such, had never used it or been trained on how to use it. · Regarding supervision on the playground, SP2 had been told once to “constantly move around” on the playground, which was what SP2 did. SP2 added that although s/he was never specifically trained to count the children on the playground, s/he did so anyhow. · SP2 said that s/he was trained by the facility that if one staff person needed to use the restroom, and it would be a “quick” absence, they could leave the children with the other staff person even if this put that staff person over the required child-to-staff ratio. If the staff’s absence might be longer, than they were supposed to contact a supervisor to step into the classroom while they were away. SP2 believed that his/her use of the restroom on the day of the incident was consistent with this training. SP1 provided the following information: · According to SP1, SP2 had a history of not communicating well and of leaving the classroom without notifying SP1. SP1 said that “so many times,” SP2 would disappear for periods of time. One time, SP1 called the P and asked if s/he had seen SP2, the P said that SP2 was helping him/her with filing in the front office. This, had not been relayed to SP1, who was wondering where SP2 had gone. SP1 said that frequently, SP2 left him/her “out of ratio” or with ten toddler-aged children. (Note: SP2 also provided information to this investigator that s/he worked “multiple times out of ratio.” “I was put out of ratio all the time.” SP2 said that one time s/he was in the classroom working alone with 11 toddler-aged children. The conduct of not ensuring the minimum staff-to-child ratio, was a violation of Minnesota Rules, part 9503.0040, subpart 1, which states that the minimally acceptable staff-to-child ratio for toddlers is 1:7.) · On the day of the incident, SP1 and SP2 were on the playground with 14 toddler-aged children. There were no other staff persons present. SP1 was focused on taking photographs using the classroom iPad and posting the photographs for parents to see. SP1 believed that SP2 was giving him/her space to do this at the picnic table. · At one point, SP1 heard SP2 yelling at him/her saying the gate was open. SP1 looked up from the iPad, but did not know what SP2 was talking about. SP2 was saying that SP1 had let children leave through the gate. SP1 responded, “You were there. Where did you go?” SP1 said that s/he had no idea that SP2 had left the playground to use the restroom. SP1 said that if SP2 said s/he was going to leave the playground, SP1 did not hear him/her. If SP1 had heard SP2 or was aware of SP2’s absence, SP1 would have put the iPad down and moved to the center of the playground to better see all of the children. · SP1 acknowledged that s/he could have waited to upload the photographs on the iPad, but s/he reiterated that s/he thought SP2 was giving him/her the time and space to do so. · SP1 said that s/he had been working at the facility for three and a half months, and was responsible for helping in the classroom; however, SP2 was the main staff person in that classroom and had been working at the facility for much longer. SP1 said that s/he sometimes floated between various classrooms, helping out; and in doing so, SP1 relied on the main staff person in the classroom to show SP1 what to do. SP1 did not believe SP2 was good at this. Instead, according to SP1, SP2 did not show him/her anything about working in the Discovery Preschool classroom, and would let SP1 figure it out on his/her own. · SP1 also said that s/he was “not really” familiar with the Daily Playground Inspection. SP1 had never observed any staff completing this form. SP1 said that s/he relied on the main staff person for each classroom to complete checklists like this one. “I was a floater. I was going into other classrooms. I don’t know what goes on in this (or that) classroom.” The P provided the following information: · The P said that s/he was aware SP2 did not like SP1. SP2 had a history of not liking certain staff persons, and then becoming “nitpicky” about that staff’s actions, while providing little or no help to correct what the staff was doing wrong. · The P said that when SP1 was hired and assigned to work with SP2 in the Discovery Preschool classroom, the P told SP2 that SP1 was “new” to working in childcare. Although SP1 had taken all of the orientation training prior to entering the classroom with SP2, SP1 still needed help learning how to work in a childcare center. The P did “a lot of coaching” with SP1 and SP2. The P once told SP2, “You are going to have to show [SP1] everything. You are going to have to show [SP1] how to work in childcare.” · The P added that although s/he had not had previous concerns with SP1’s and/or SP2’s conduct, the P had concerns with aspects of this incident. The P said that on the day of the incident, SP2 came to him/her that morning and said, “The gate was open.” SP2 did not say anything, at that time, about any children leaving the playground through the gate. The P also did not think to ask and believed that SP2 was telling him/her this as an informational. However, later that day, around 5 p.m., SP2 came back and said that children had left the playground through the open gate. The P asked why SP2 had not told him/her earlier, and SP2 responded, “You should have asked me.” SP2 then told the P that one of the children had wandered all the way to the opposite side of the building. This was the first the P had heard of this. SP2 had also called one of the parents of the children, but not the other parents. · Regarding SP2’s use of the restroom at the time of the incident, the P said that SP2’s actions were acceptable; however, ideally SP2 would have asked another staff to step in while s/he was away. However, this was not always possible given the level of staffing they had available. · The P said that all staff were trained on playground procedures and the Daily Playground Inspection regardless of what classroom they were hired to work in, including the infant classroom. According to the P, SP1 and SP2 were trained on playground procedures and the Daily Playground Inspections · The P said the Daily Playground Inspection was supposed to be filled out every day by any staff in the classroom, and these were then turned into the P at the end of each week. However, due to short-staffing at facility, the P was not always able to go through the Daily Playground Inspections and/or ensure they were being completed every day. The P was aware that the Daily Playground Inspection was not consistently filled out by all staff. The P said that the Daily Playground Inspection was introduced to staff during their new hire training. The checklist was also hanging in each classroom; and the P routinely talked about the Daily Playground Inspection in staff meetings. The P said that it was hard to believe SP1 and SP2 did not know about the Daily Playground Inspection because it was “right in their face” and they would have to walk by it multiple times every day in the classroom. (Note: The failure to consistently complete the Daily Playground Inspection was in Minnesota Statutes 245A.04, subdivision 14, paragraph (b), clause (3), which states the license holder shall monitor implementation of policies and procedures by program staff.) FM1 and FM4 did not have additional information regarding the gate being left open, but both were concerned that they were not notified earlier in the day of what happened. Instead, they were each called later in the evening by the P and informed at that time. (Note: The P told this investigator that had SP2 told him/her about the children leaving through the gate right away, the P would have immediately called the parents at that time.) The facility’s policies and procedures, including Risk Reduction Plan and Outdoor Play Policy, stated the following: · Playground safety, included: 1) Supervision with appropriate staff-to-child ratios maintained at all times while on the playground; 2) Safety of playground equipment and materials was maintained. The playground was checked regularly to ensure that there were no safety hazards; and 3) All areas of the playground remained visible by staff persons. · Playground supervision, included: 1) Staff persons must walk around, positioning themselves to actively supervise and participate in activities; 2) Name-to-face attendance using the child supervision record was conducted on a regular basis so that every child is accounted for at all times. This included that staff should count the children upon arrival to the playground and at “regularly scheduled intervals (minimum of every 30 minutes)”; and 3) Staff persons must be aware of all areas of the playground and move around to adequately supervise the children. Facility documentation stated that SP1, SP2, and the P received training on the facility’s Risk Reduction Plan and the Reporting of Maltreatment of Minors Act. (Note: The P said that training was completed using an online system. The training included “everything.” Staff were required to read through policies, watch videos, and click through screen-by-screen. According to the P, the playground procedures and the Daily Playground Inspection were included in this online training. SP1 and SP2 each completed this online training.) Relevant Minnesota Statutes and Rules: Minnesota Statutes, section 245A.02, subdivision 18, and Minnesota Rules, part 9503.0045, subpart 1, item A, states that a child must have supervision at all times and that supervision is defined as occurring when 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. Conclusion: A. Maltreatment: On July 6, 2022, a playground gate was not secured properly allowing AV1-AV4 to leave the playground without the knowledge or supervision of staff persons which was a violation of Minnesota Statutes, section 245A.02, subdivision 18, and Minnesota Rules, part 9503.0045, subpart 1, item A. When SP2 returned to the playground from using the restroom, s/he observed the gate open and the children out of the gate. SP2 gathered the children and returned them to the playground, unharmed. It was unknown how long the children were without supervision. Allowing four children, who were approximately two years old, to leave the playground unsupervised exposed each to vehicle traffic, community persons, and other environmental hazards. Therefore, there was a preponderance of the evidence that there was a failure to supply AV1-AV4 with necessary care, and a failure to protect AV1-AV4 from conditions that seriously endangered their physical or mental health. 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. At the time of the incident, SP1 and SP2 were working in the Discovery Preschool classroom and responsible for the children in that classroom, including AV1-AV4. SP1 and SP2 received training on the facility’s online training, which included playground procedures, and the Risk Reduction Plan; and training on the Reporting of Maltreatment of Minors Act. When the incident occurred, SP1 was loading photographs on the classroom iPad. SP1 acknowledged that s/he was not looking at the children, but believed SP2 was giving him/her the time and space to deal with the photographs. SP1 said that s/he did not hear SP2 say that s/he was leaving to use the restroom; and said that had s/he heard this, s/he would have put the iPad down and moved to the center of the playground to better supervise the children. SP2 said that s/he told SP1 that s/he was leaving the playground and believed that SP1 looked at him/her and “did a nod.” However, SP2 did not verify that SP1 heard him/her or observe SP1 take any actions to ensure the safety of the children while SP2 was away. Instead, SP2 observed SP1 “staring at” the iPad, and SP2 did not provide additional feedback to SP1 about the need to watch the children while SP2 was away. The lack of communication between SP1 and SP2 was a large contributor to what ultimately happened and the actions of both SP1 and SP2 provided an environment where the children were able to leave without anyone immediately seeing. Therefore, SP1 and SP2 were responsible for maltreatment of AV1-AV4. 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 responsible did not meet statutory criteria to be determined as recurring or serious. Although four alleged victims were involved, this was a single incident of maltreatment and there was no information that any of the alleged victims sustained a serious injury, which reasonably required the care of a physician whether or not the care of a physician was sought. 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 playground sweep was not conducted prior to using the playground and the teachers were not spread-out throughout the playground to supervise the area properly.” The facility retrained all staff persons regarding “proper supervision,” and secured the gate with an additional, more visible, locking device.
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 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. In addition, on September 14, 2022, the facility was issued a Correction Order for the violations 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 AV1-AV4 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 on the playground. Supervision is a duty identified in the facility’s child care program plan. AV1- AV4 left the playground without the knowledge or supervision of the staff persons through a playground gate that was not properly secured. When SP2 returned to the playground after using the restroom, s/he observed the gate open and the children out of the playground. SP2 gathered the children and returned them to the playground without injury. SP1 and SP2 have not been found responsible for maltreatment or nonmaltreament mistake in the past. 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 Maltreatment Investigation Memorandum 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 AV1-AV4. SP1 and SP2 were no longer substantiated as perpetrators of maltreatment of AV1-AV4 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.
|
