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May 8, 2023 Xavier Andriy Lopez, Authorized Agent Jardin Summit Hill 4040 BLOOMINGTON AVE Minneapolis, MN 55407-3331 RE: Request for Reconsideration of Correction Order License Number: 1081950 (Child Care Ctr) Program Location: 130 VICTORIA ST N, Saint Paul, MN 55104-2654 Dear Xavier Andriy Lopez: The Minnesota Department of Human Services (DHS), Division of Licensing, received your request for reconsideration of citations 1 and 2 from the Correction Order (enclosed) issued to you by the Department of Human Services on June 9, 2022. You did not challenge citation 3. Your request was forwarded to the Department of Human Services - Division of Licensing and received on June 23, 2022. The request and accompanying information have been reviewed by the Commissioner of Human Services (Commissioner). APPLICABLE STATUTES AND RULES Minnesota Statutes, section 245A.41, subdivision 1, paragraph (d) Minnesota Statutes, section 245A.41, subdivision 1, paragraph (a) Minnesota Rules, parts 9503.0032, subpart 2(1) Minnesota Rules, parts 9503.0032, subpart 2(7) Minnesota Rules, parts 9503.0120, item B SUMMARY OF CITATIONS AND RECONSIDERATION DETERMINATION: Citation 1: Food allergy information was not readily available to staff where food is prepared. Your Response: In your request for reconsideration, you state that child allergy information was available in the preparation area of the children by their name and picture in a binder located in the wall. You state that the Individual Child Care Program Plan was updated by the Center Director, that same day in the morning, to add a new child. You state that the cook informed the licensor of this, and the Director confirmed the same information showing allergy plans with the updated information. You state that when the licensor came in the morning, the individual childcare program plans were still in the desk of the Director while he was working on them, but the allergy information was still posted in the kitchen with the full name of the children and a corresponding picture. Finally, you argue that the allergy plan needs to be updated at least once per year and every time new staff persons or children start in the program, which is what was happening during the licensing visit, as confirmed by the Center Director and kitchen staff. Applicable Law: Minnesota Statutes, section 245A.41, subdivision 1, paragraph (d), requires that a child's allergy information must be always available including on site, when on field trips, or during transportation. A child's food allergy information must be readily available to a staff person in the area where food is prepared and served to the child. According to Minnesota Statutes, section 245A.41, subdivision 1, paragraph (a), if a child has a known allergy, the license holder must maintain current information about the allergy in the child's record and develop an individual childcare program plan (ICCPP) as specified in Minnesota Rules, part 9503.0065, subpart 3. The individual childcare program plan must include but not be limited to a description of the allergy, specific triggers, avoidance techniques, symptoms of an allergic reaction, and procedures for responding to an allergic reaction, including medication, dosages, and a doctor's contact information. Determination on Reconsideration: Minnesota Statutes, section 245A.41, subdivision 1, paragraph (d) requires that a child's food allergy information must be readily available to a staff person in the area where food is prepared and served to the child. Minnesota Statutes, section 245A.41, subdivision 1, paragraph (a) clarifies the meaning of allergy information to include a description of the allergy, specific triggers, avoidance techniques, symptoms of an allergic reaction, and procedures for responding to an allergic reaction, including medication, dosages, and a doctor's contact information. In your request for reconsideration, you admit that the ICCPP book, the book that contains all the information listed above, was in the Center Director’s office at the time of the licensing visit, but that it had placed there earlier that day to be updated to include a new child in your program. Minnesota Statute 245A.41 requires that a child's food allergy information be readily available in the area where food is prepared and served to the child. In this case, at the time of the site visit, the ICCPP was not located where the food was prepared. Finally, you argue that child allergy information was available in the preparation area of the children by their name and picture in a binder located in the wall. You also provided pictures of this information in your reconsideration request. The pictures show a child allergy list organized by the child’s name and picture, their classroom, known allergies, and whether an EpiPen may be needed. As stated above, “allergy information” must include a description of the allergy, specific triggers, avoidance techniques, symptoms of an allergic reaction, and procedures for responding to an allergic reaction, including medication, dosages, and a doctor's contact information. The pictures your provided from the binder located in the child food preparation area do not include all the required information. Therefore, there is sufficient evidence to support this violation, and Citation 1 is affirmed. Citation 2: The program did not have documentation on site to show that three (3) of (5) staff persons (SP5, SP9 and SP10) met the: • education requirements of the teacher job classification for which the staff person was employed (SP5, SP9 and SP10); and • experience requirements of the teacher job classification for which the staff person was employed (SP5). Your Response: In your request for reconsideration, you state that you submitted two variances before the licensing visit to your licensor. You subsequently received a response from another DHS licensor, who accepted the variances. You state that you did not receive approval for the variance by the time of the licensing visit, and that is a factor outside of your control. You say that you sent the variances for SP9 and SP10 on May 25, 2022, and a DHS licensor accepted the variances and provided written confirmation. The variances were not sent to your program by the date of the visit but were submitted by the DHS licensor the same day of the licensing visit. You state that SP5 has experience working as a teacher in a school in Mexico. Specifically, SP5 worked in the public schools of Puebla as a preschool teacher. You argue that SP5 worked in a government approved school and this experience should count. You also argue SP5 has enough college credits to qualify as a teacher. Applicable Law: Minnesota Rules, parts 9503.0120, item B requires a license holder to ensure that a personnel record for each staff person is maintained at the center. The personnel record for each staff person must contain the staff person's documentation indicating that the staff person meets the requirements of the staff person's job position and the education and experience requirements. Minnesota Rules, parts 9503.0032, subpart 2 A teacher with the credential listed under each number in column A must have the corresponding education and experience listed in column B. Line item (1) of this statute requires a person with a high school diploma or commissioner of education-selected high school equivalency certification to have 4,160 hours of experience as an assistant teacher and 24 quarter credits of education. Line item (7) requires a person with a baccalaureate degree from an accredited college or university in any field to have 1,040 hours of experience as an assistant teacher, aide, or student intern and 18 quarter credits of education. Determination on Reconsideration: The Commissioner finds that a violation occurred for SP9 and SP10 regarding citation 2. A staff member may not identify as a teacher until their variance is approved. The record shows the DHS licensor sent an email on June 7, 2022, stating she can accept the materials submitted for a variance request, but also asked you to send the variance request and Personal Information Form to her again. The variances were not effective when the DHS licensor sent the June 7, 2022, email to Jardin. The variances for SP9 and SP10 became effective when the DHS licensor sent you a form titled “This Variance Request is Approved” on June 9, 2022, after the licensing visit occurred. Therefore, Citation 2 is affirmed as to SP9 and SP10. Concerning SP5, the documentation you submitted as part of your reconsideration request from Educational Credential Evaluators (ECE) states that SP5’s coursework in Mexico has the U.S. equivalence of the completion of high school level study. For that reason, item (7) of Minnesota Rules, parts 9503.0032, subpart 2 does not apply because SP5 does not have a baccalaureate degree from an accredited college or university in any field, or equivalent, and SP5 must qualify as a teacher 1 through item 1 of Minnesota Rules, parts 9503.0032, subpart 2. The PIF submitted for SP5 as part of your request for reconsideration shows that SP5 has 2400 total hours of experience, which is less than the 4,160-hour requirement. DHS has also accepted 2.5 of the 142.50 semester hours completed at Universidad Autónoma Chapingo, which leaves SP5 short of the 24 quarter credits of education required by the same Rule. Therefore, Citation 2 is affirmed regarding SP5. Disposition: The Commissioner has reviewed the relevant laws and all the information you submitted in response to the correction order. The evidence presented supports both violations, and Citations 1 and 2 are affirmed for the reasons cited above. This is a final agency decision. The Commissioner encourages you to continue to work cooperatively with your licensor to ensure the safety and well-being of the children you serve. If you have any questions regarding this letter, please contact Vaughn Frazher at 651-431-5600. Sincerely,  Afsheen Foroozan, Attorney Legal Counsel’s Office Office of Inspector General
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