|
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 December 28, 2022, which should be destroyed. As a result of an administrative reconsideration, the original determination in Allegation One that SP1 and SP2 were responsible for maltreatment was rescinded and the disposition was changed to a “nonmaltreatment mistake,” which was not maltreatment. Allegation Two was affirmed upon reconsideration. Allegations Three through Five were not part of this review and remained final and conclusive. In addition, given that SP2 was no longer responsible for two instances of maltreatment (Allegations One and Two), SP2’s disqualification was also rescinded. For additional information, see Administrative Reconsideration section of this document.
Suspected Maltreatment Reported: Allegation One: It was reported that two alleged victims (AV1 and AV2) left the toddler playground alone. Allegation Two: It was reported that a staff person (SP2) slapped an alleged victim (AV3) across the face. Allegation Three: It was reported that a staff person (SP1) picked up AV1 by his/her forearms. Allegation Four: It was reported that two staff persons (SP3 and SP4) left an alleged victim (AV4) alone on the toddler playground. Allegation Five: It was reported that a staff person (SP5) pushed AV1’s head down onto a cot during nap time. Date of Incident(s): Unknown prior to August 29, 2022. Note: The Minnesota Department of Human Services was made aware of the allegations on August 29, 2022. Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 15, paragraph (a), clauses (1) and (2); subdivision 18, paragraph (a); and subdivision 23, paragraph (a): 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. "Physical abuse" means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury. Summary of Findings: Pertinent information was obtained during a site visit conducted on September 8, 2022; from documentation at the facility; and through 17 interviews conducted with two supervisory staff persons (P1 and P2), nine facility staff persons (SP1-SP5, P3-P4, and P6-P7), and AV1’s-AV4’s six family members (FM1-FM6). Attempts were made via telephone to contact P5, but P5 did not respond to the requests. Allegation One: It was reported that AV1 and AV2 left the toddler playground alone. According to AV1’s and AV2’s enrollment information, they were approximately 23 and 20 months old respectively at the time of the incident, and enrolled in the toddler room. The toddler playground was behind the facility and enclosed with a chain link fence with gates. Behind the playground was grass, a shed, and an alley that led to other businesses and houses. The facility was located on Main Street and there was a highway approximately two blocks away from the facility. There was on street parking where cars faced towards the facility and the playground. The playground was visible to persons passing by or parking near the facility. Consistent information was provided that on June 14, 2022, SP1 and SP2 were working with children including AV1 and AV2 in the toddler room. SP1 and SP2 provided the following information: · On an unknown date, sometime in the morning, SP1 and SP2 brought the toddlers (SP2 stated it was possibly eight toddlers but was unsure), including AV1 and AV2 out on the toddler playground. SP1 and SP2 walked around the playground counted the children. SP1 and SP2 sat on two chairs that were along the fence adjacent to the facility talking to each other and counting the children. · At one point, SP2 looked up and saw AV2 near the shed outside the fence. SP2 stood up and ran out of the gate to get AV2 and that was when SP2 saw AV1 down the alley. SP1 looked up and saw SP2 run out of the gate and saw AV2 near the shed and AV1 down the alley near a dumpster toward the highway. SP1 also saw the gate of the fence parallel to the alley was open. · After SP2 brought AV1 and AV2 back inside the playground, SP1 and SP2 counted the children to make sure they were all there. SP1 and SP2 each stated there was no injury to AV1 and AV2. Later on that morning, after SP1 and SP2 brought the toddlers inside the room, SP1 and SP2 told P1 and P2 about AV1 and AV2 leaving the playground. · At pick up time, SP1 and SP2 told FM2 about the incident. SP1 and SP2 provided conflicting information regarding whether a staff person told FM1 about the incident. SP2 stated s/he was alone when FM1 picked up AV1 and s/he did not tell FM1 about the incident because s/he was unsure if s/he should have and SP1 stated s/he told FM1 about the incident. SP1 and SP2 each stated they did not complete an incident report. P1 provided the following information: · A few days after the incident, SP2 told P1 that AV1 and AV2 left out of the back gate of the playground. One of the children (SP2 did not specific if it was AV1 or AV2), was near the shed and the other child was “three steps ahead.” · Later on, P1 spoke to P2 who told P1 that SP2 already told him/her about the incident. P1 and P2 then spoke to SP1 and SP2 individually about the incident and they provided information consistent with what they told this investigator. P1 and P2 discussed with both SP1 and SP2 as to how to provide supervision on the playground. P1 also added dog collars to the gates as an extra safety measure. P1 did not think an incident report was completed and placed in either AV1’s or AV2’s files and did notify FM1 and FM2 about the incident. P2 provided the following information: · On the day of the incident, at an unknown time, SP1 and SP2 observed P1 walking to the shed. SP1 and SP2 stopped P2 and told him/her that earlier in the day, the gate was open and AV1 and AV2 left the playground and were behind the shed when SP1 and SP2 saw them. SP1 and SP2 told P2 that P3 had brought out the garbage earlier and must not have ensured the gate was latched. SP2 stated AV1 was near the shed when s/he saw him/her and SP2 ran out of the gate to get AV1 and AV2. P2 looked at AV1 and AV2 and did not see any injuries. · P2 then told P1 about the incident and they discussed that with staff persons supervising children by walking along the fence and near the gates. P4 stated that on a previous occasion, SP2 told P4 that AV1 and AV2 got out of the gate on the playground. SP2 said s/he went and got AV1 and AV2 and brought them back to the playground. FM2 stated on June 14, 2022, when s/he arrived at the facility to pick up AV2, SP1 and SP2 told him/her that AV2 got out of the playground and was found half way down the alley toward the highway. AV1 did not have any injuries or marks. FM2 then went to the office and spoke to P2, who apologized for the incident. The following day at drop off, P1 brought FM2 into the office and explained that the facility placed dog collars on the gate. FM1 stated that P4 told FM1 about the incident prior to the facility notifying them. A few days later, when FM1 dropped AV1 off at the facility, there was a note inside AV1’s cubby explaining the incident. FM3 stated a few days after the incident, P4 told FM3 about the incident. FM1 and FM3 did not have overall concerns with the facility but the facility needed to ensure children were not allowed to get out of the facility again especially since it was located close to the highway. According to the facility’s Risk Reduction Plan, staff person to child ratios were met to ensure proper supervision. Staff persons moved around so children were seen in all areas. Staff persons also knew where all children were at all times and made sure all gates were closed when playing in the fenced areas. Facility documentation showed that staff persons interviewed in this investigation, including SP1 and SP2, received training on the facility’s Risk Reduction Plan and the Maltreatment of Minor’s Act 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, stated that a child must have supervision at all times and that supervision was 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 Allegation One: A. Maltreatment:
Consistent information was provided that on June 14, 2022, AV1 and AV2 left the toddler playground without the knowledge or supervision of staff persons which was inconsistent with the facility’s Risk Reduction Plan and was a violation of Minnesota Statutes, section 245A.02, subdivision 18, and Minnesota Rules, part 9503.0045, subpart 1, item A. AV1 and AV2 leaving the playground unsupervised and without staff persons knowledge allowed them access to dangers outside the facility including community persons and traffic. Therefore, there was a preponderance of the evidence that there was a failure to supply AV1 and AV2 with necessary care and a failure protect AV1 and AV2 from conditions or actions that seriously endangered AV1’s and AV2’s physical or mental 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. 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. SP1 and SP2 were each responsible for the care and supervision of AV1 and AV2 when AV1 and AV2 left the playground unsupervised. SP1 and SP2 were each trained on the facility’s Risk Reduction Plan and the Reporting of Maltreatment of Minors Act. SP1 and SP2 were responsible for maltreatment of AV1 and AV2. 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 because it was a single incident for which AV1 and AV2 did not sustain a serious injury that reasonably required the care of a physician. Allegation Two: It was reported that SP2 slapped AV3 across the face. According to AV3’s enrollment information, AV3 was approximately three years old and enrolled in the preschool one room at the time of the incident. The preschool one room was an open concept floor plan that included cubbies along one wall where children hung their coats. SP2 provided the following information: · When this investigator asked SP2 why s/he wanted to talk to SP2, SP2 told this investigator that s/he slapped AV3 across the face. SP2 stated that on a previous unknown date, s/he was working in the preschool one room with P1. P1 stepped out of the room for a short period of time, so P3 came in to work with SP2. · SP2 stated that s/he was trained that if a child was misbehaving, the child was to sit in his/her cubby for one minute for every year old that child was. At one point, AV3 was “acting out” and “not listening” so SP2 told AV3 to sit in his/her cubby. SP2 was close to AV3 and AV3 took a drink of water and tried spitting the water at SP2. SP2 went to turn AV3 away from SP2 and SP2’s right hand “slapped” AV3 on his/her left cheek. AV3 was “shocked” but did not cry and then sat in his/her cubby. · P3 was facing away from SP2 but must have heard the slap because s/he looked at SP2 and asked if AV3 slapped SP2. SP2 responded, “No,” and did not provide any additional information to P3. After a few minutes, SP2 went over and sat by AV3 and talked about his/her behaviors. SP2 apologized for slapping AV3 and AV3 then went and played. SP2 stated there was no mark on AV3’s face. · Once P1 returned to the preschool one room, SP2 told P1 that AV3 was “misbehaving” and SP2 tried to get AV3 to sit in the cubby. Once SP2 was close to AV3, AV3 took a drink of water and tried spitting it at SP2. SP2 went to turn AV3 away from SP2 and “slapped” AV3 on the face. SP2 did not document that AV3 was separated from the group or complete an incident report. P3 denied seeing SP2 slap AV3 on the face. P3 did not have any concerns with SP2’s interactions with children. P1 stated “right after” the incident occurred, SP2 told P1 that s/he “pushed” AV3’s face away from SP2 because s/he thought AV3 was going to spit on him/her. P1 asked SP2 if s/he “felt that [SP2] did anything wrong,” and SP2 responded, “Kind of,” but stated s/he did not think it was “too aggressive.” P1 saw AV3 who appeared “fine” and did not have any marks. P1 denied knowing that SP2 “slapped” AV3 on the face. P1 did not take any additional steps. P2 denied knowing about the incident between SP2 and AV3. FM4 and FM5 each stated that they were not aware of the incident with AV3 until speaking to this investigator. They did not receive an incident report about the incident and did not have other concerns with the facility. FM4 had not noticed any marks or injuries on AV3 recently and AV3 did not mention any concerns to FM4 about the facility. According to the facility’s Behavior Guidance Policy: · Staff persons ensured that each child was provided with a positive model of acceptable behavior. Staff persons redirected children away from problems toward “constructive activity” to reduce conflict; taught children “acceptable alternatives” to “problem behaviors” to reduce conflict; protected the safety of children and staff persons; and provided “immediate and appropriate consequences” for a child’s “unacceptable behavior.” · Most behavior issues were preventable. However, if they occurred, staff persons used the following techniques: o Staff persons ignored the behavior. o Staff persons offered alternatives to children engaging in undesirable behavior by presenting a new toy, suggesting a new activity, engaging the child in an activity with the staff person or another child, or encouraging independent play. o Staff persons explained the inappropriate behavior and showed the child appropriate ways to handle a situation. o Staff persons helped the child understand “the logical consequences” of his/her actions by removing objects or activity the child engaged in. Then the child was separated from the group which allowed him/her to calm. The child returned to the group as soon as the negative behavior stopped or significantly reduced for the appropriate number of minutes. Facility documentation showed that staff persons interviewed, including SP2, were trained on the Behavior Guidance Policy and the Reporting of Maltreatment of Minors Act prior to the incident. Relevant Rules and/or Statutes: Minnesota Rules, part 9503.0055, subpart 3, item A, stated that the license holder must have and enforce a policy that prohibits the subjection of a child to corporal punishment. Corporal punishment includes, but is not limited to, rough handling, shoving, hair pulling, ear pulling, shaking, slapping, kicking, biting, pinching, hitting, and spanking. Minnesota Rules, part 9503.0055, subpart 4, stated that no child may be separated from the group unless the license holder tried less intrusive methods of guiding the child’s behavior which have been ineffective and the child’s behavior threatens the well-being of the child or other children in the center. A child who requires separation from the group must remain within an unenclosed part of the classroom where the child can be continuously seen and heard by a program staff person. When separation from the group is used as a behavior guidance technique, the child's return to the group must be contingent on the child's stopping or bringing under control the behavior that precipitated the separation, and the child must be returned to the group as soon as the behavior that precipitated the separation abates or stops. Conclusion Allegation Two: A. Maltreatment: SP2 provided information that on a previous unknown date, s/he was working in the preschool one room with P1. P1 stepped out of the room for a short period, so P3 came in to work with SP2. At one point, AV3 was “acting out” and “not listening” so SP2 had AV3 sit in his/her cubby. SP2 was close to AV3 and AV3 took a drink of water and tried spitting the water at SP2. SP2 went to turn AV3 away from SP2 and SP2’s right hand “slapped” AV3 on his/her left cheek. AV3 was “shocked” but did not cry and went and sat in his/her cubby. SP2 stated that s/he was trained that if a child was misbehaving, the child went and sat in his/her cubby where they kept their coats for one minute for every year old that child was, which was a violation of Minnesota Rules, part 9503.0055, subpart 4. SP2’s action of slapping AV3 on his/her left cheek was inconsistent with the standards of a professional caregiver in a program licensed by the Minnesota Department of Human Services; were violations of facility policies and procedures; and violations of Minnesota Rules, part 9503.0055, subpart 1, item A and subpart 3, item A. Although P1 and P2 provided consistent information that later that day, AV3 did not have a mark or injury on his/her face, given that SP2’s action of slapping AV3 across the face loud enough that according to SP2 caused P3 asked if AV3 slapped SP2, there was a preponderance of the evidence that the SP’s actions were not accidental and represented a substantial risk of injury to the AV. It was determined that physical abuse occurred ("Physical abuse" means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury). B. Responsibility pursuant to Minnesota Statutes, section 626.556, subdivision 10e, paragraph (i): 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: (2) 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; (3) 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 (4) whether the facility or individual followed professional standards in exercising professional judgment. SP2 was trained on the Behavior Guidance Policy and the Reporting of Maltreatment of Minor’s Act. SP2 was responsible for 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 physical abuse for which SP2 was responsible was not serious maltreatment because it did not result in an injury to AV3. However, given that SP2 was found responsible for two separate incidents of maltreatment (see also allegation one), it was considered recurring. SP2 was disqualified from providing direct contact services. Allegation Three: It was reported that SP1 picked up AV1 by his/her forearms. On a previous unknown date, P4 walked past the toddler room and heard crying so s/he looked in the window on the door that led into the toddler room. P4 saw SP1 grab AV1 by his/her forearms, lift AV1, and “abruptly” set AV1 down on the floor. SP1 then looked at P4 and SP1’s face was “bright red.” P4 then told either P1 or P2 about the incident (P4 could not recall which one.) AV1 had red marks on his/her arms “for a while” where SP1 grabbed AV1. A few days after the incident, P4 asked FM3 about the marks and s/he told P4 there were no longer there. Attempts to follow up with FM1 and FM3 regarding the allegation were unsuccessful. P1 provided the following information: · On a previous unknown date, P4 came to P1 and said s/he was standing at the door to the toddler room and saw SP1 pick up AV1 “in an aggressive manner.” P4 was “heated” so P1 tried calming P4 to get additional information about the incident. P4 would not calm and continued to get “more heated” so P1 told P4 to come talk to him/her once s/he was calm. P4 and P1 did not talk to each other after that about the incident. P1 stated that s/he did not follow up with P4 regarding the incident. · Later on, P1 went and reminded SP1 to “be mindful” with how s/he picked up children and not to do so in an aggressive manner. SP1 denied picking up AV1 in an aggressive manner but did not provide any information on how s/he picked up AV1. Approximately five to ten minutes after speaking to P4, P1 looked at AV1, including his/her forearms, and did not see any marks or injuries. P1 stated staff persons were trained to pick up children under their arm pits. P2 stated on an unknown date and time, P4 came to P2 and said s/he saw AV1 climbing on a chair in the toddler room and SP1 “picked up” AV1 and put him/her down “too hard” and “abruptly.” P2 asked P4 what s/he meant by “abruptly” and P4 responded that SP1 “picked [AV1] up and put [him/her] on the ground.” P2 denied that P4 said SP1 picked up AV1 by the forearms. P4 had personal conflicts with SP1 so P2 was not sure how to respond to P4’s information. P2 went and spoke to SP1 who said AV1 climbed up on a chair so SP1 went over and picked up AV1 and placed him/her on the floor. SP1 demonstrated picking up AV1 under the armpits. P2 looked at AV1 and did not see marks on AV1’s forearms. SP1 denied picking AV1 up by his/her forearms or in an aggressive manner. SP1 stated after P4 found out that SP1 was promoted to the lead toddler staff person, P4 began to spread lies and criticized SP1. According to the facility’s Risk Reduction Plan, staff persons were not allowed to lift a child by one arm or pull on a child’s arm. Facility documentation showed that staff persons interviewed, including SP1, were trained on the facility’s Risk Reduction Plan and the Reporting of Maltreatment of Minors Act prior to the incident. Conclusion Allegation Three: P4 stated on a previous unknown date, s/he saw SP1 grab AV1 by his/her forearms, lift AV1, and “abruptly” set AV1 down on the floor causing red marks that lasted “for a while.” Given that P1 and P2 went and spoke to SP1 who demonstrated picking AV1 up under his/her arm pits and denied it was in an aggressive manner; that approximately five to ten minutes after the incident P1 and P2 did not see marks on AV1’s arms; and that SP1 denied picking AV1 up by the forearms, there was not a preponderance of the evidence that SP1 picked up AV1 in an aggressive manner. It was not determined that physical abuse occurred ("Physical abuse" means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury). Allegation Four: It was reported that SP3 and SP4 left AV4 alone on the toddler playground. According to AV4’s enrollment information, AV4 was approximately 18 months old and enrolled in the toddler room at the time of the incident. P4 stated sometime in May of 2021, P8 came to P4 and said that SP3 and SP4 had the toddlers, including AV4, outside on the playground and when they brought the toddlers inside, they left AV4 on the playground. P4 could not recall specifically who found AV4 but believed it was two infant staff persons (P6 and P7) who saw AV4 alone and brought him/her to the toddler door and handed AV4 to SP3 and SP4. Approximately two weeks prior to this investigation, P4 called FM4 to let him/her know that AV4 had been left alone on the playground. Prior to that, FM4 was not aware of the incident. P4 did not talk to P1 or P2 about the incident because s/he assumed P1 and P2 were aware and “took care of it.” P6 and SP2 each stated on a previous occasion, while P6 and SP2 had the infants out on the playground, SP3 and SP4 were also on the playground with toddlers, including AV4. SP3 was in front of the line of children and SP4 was at the back of the line when they brought the toddlers inside and b closed the door. SP2 then saw AV4 on the playground and went over and got AV4 and brought him/her inside. At that time, SP2 saw that SP3 was inside the classroom and SP4 was still at the back of the line walking through the hall. SP2 handed AV4 to a staff person who s/he could not recall. There were no injuries to AV4. P7 denied working on the day of the incident but stated a few days later, SP2 and P6 told P7 that AV4 was left outside and they saw AV4 alone. P1 did not recall how s/he became aware of the incident, but on a previous unknown date, SP3 and another staff person who P1 did not recall, came in from the playground. AV4 was left alone by the toddler cubby area. P1 later discussed with SP3 counting the children “at all times” and making sure all children were with staff persons when they entered the building and the classroom. P1 stated there should have been one staff person at the front of the line and one staff person at the back of the line when transitioning the children inside. P1 told SP3 that if an incident happened again, SP3 would be fired but P1 did not document anything in SP3’s file. P1 stated there was no documentation about the incident placed in AV4’s file. P2 provided the following information: · P2 was not aware of the incident until approximately two or three days later when P5 told P2 that SP3 and another staff person, who P2 could not recall, came inside the facility from the playground and walked into the classroom. SP3 and the other staff person realized that AV4 was not with the group and went back outside and got AV4. · Later on, P2 talked to SP3 who said that when s/he walked into the classroom, s/he realized AV4 was not with the group so SP3 went back to the playground and got him/her. P2 discussed with SP3 the importance of having a staff person at the end of a line when transitioning from one location to another. SP3 did not provide any additional information to P2 about the incident. · P2 did not document the incident and did not notify FM4 about the incident and was unsure if P1 notified anyone. FM6 stated a few weeks prior to this investigation, P4 called FM6 and told him/her about the incident. FM6 had not spoken to anyone before or after that from the facility about the incident and had not received an incident report. FM6 did not have concerns with the facility. SP3 and SP4 each stated that on the day of the incident, SP4 and SP3 were outside on the toddler playground with the toddlers, including AV4. SP4 stated that after a while, they had the toddlers line up with SP3 at the front of the line and SP4 at the back of the line. SP4 counted the children before walking into the facility. SP3 stated s/he did not count the children prior to walking into the facility. Approximately three minutes later, when SP3 was inside the toddler room and SP4 was still in the hall, a staff person (possibly P8) brought AV4 to the room and said AV4 was left outside. SP4 stated approximately one to two minutes later, while the children were taking their coats off, SP4 started counting the children again, and a staff person (P5 or another staff person) brought AV4 inside. SP4 could not remember when s/he last saw AV4 prior to this. AV4 did not have any injuries. According to the facility’s Risk Reduction Plan, when transitioning children from one area to another, staff persons were in “correct ratio” and aware of the children “at all times.” Facility documentation showed that SP3 and other staff persons interviewed in this investigation received training on the facility’s Risk Reduction Plan and the Maltreatment of Minor’s Act prior to the incident. Conclusion Allegation Four: P4 learned from P8 that SP3 and SP4 left AV4 alone on the playground. Although it was concerning that SP3 and SP4 were not aware that AV4 was left on the playground when they brought the rest of the toddlers inside; given that P6 and SP2 each stated that, SP2 saw AV4 and went to AV4 and brought him/her back to the classroom, and AV4 was not out of sight and sound from staff persons; there was not a preponderance of the evidence that there was a failure to supply AV4 with necessary care or a failure to protect AV4 from conditions that seriously endangered AV4’s physical or mental health when reasonable able to do so.
It was not 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). Allegation Five: It was reported that SP5 pushed AV1’s head down onto a cot during nap time. P4 stated sometime in November or December of 2021, during nap time, P4 and SP5 were getting the toddlers to sleep. P4 saw SP5 push AV1’s head down onto a cot. P4 was not able to provide additional information as to how SP5 pushed AV1 down since it was dark in the room. As a result, AV1’s head hit the corner of the cot and AV1 cried. AV1 had a red mark on his/her head that went away within the same day. P4 told P1 and P2 about the incident and they said they would talk to SP5 about it. P1 and P2 each stated they were not aware of the incident between SP5 and AV1. SP5 provided the following information: · After AV1 transitioned from the infant room to the toddler room, s/he struggled with nap time especially laying on cots. SP5 sat next to AV1 and rubbed AV1’s back and reminded AV1 to sleep. On a few of those occasions, SP5 also patted the pillow and lay next to AV1’s cot to show AV1 how to sleep. AV1 usually fell asleep within ten minutes. SP5 denied pushing AV1’s head down onto the cot. · SP5 got along with all other staff persons except P4. SP5 told P1 and P2 about concerns with how P4 spoke to SP5. After one occasion, when P4 yelled at SP5 at a staff meeting, P2 no longer allowed P4 to work with SP5 in the infant room. Conclusion Allegation Five: P4 stated sometime in November or December of 2021, during nap time, P4 saw SP5 push AV1’s head down onto a cot. AV1 had a red mark on his/her head that went away within the same day. P4 then went and told P1 and P2 about the incident. Given that P1 and P2 denied knowing about the incident; that SP5 denied pushing AV1’s head down onto a cot; and that there was no additional information to support or refute P4’s information, there was not a preponderance of the evidence that SP5 pushed AV1’s head down onto a cot which resulted in an injury. It was not determined that physical abuse occurred ("Physical abuse" means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury). 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 internal reviews and determined that policies and procedures were adequate but not followed. The facility attached dog collars to the gate on the fence as a secondary safety device. Verbally retraining was provided to SP1-SP4. A form was created and implemented for each room to ensure staff persons had the correct number of children “at all times.” All current staff persons were retrained on the maltreatment of minors act on September 26, 2022. Action Taken by Department of Human Services, Office of Inspector General: SP1 was not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, SP1 was 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. The determination that SP1 was responsible for maltreatment is subject to appeal. SP2 was disqualified from a position allowing direct contact with, or access to, persons receiving services from programs, organizations, and/or agencies that are required to have individuals complete a background study by the Department of Human Services as listed in Minnesota Statutes, section 245C.03. The determination that SP2 was responsible for maltreatment and the disqualification of SP2 are each subject to appeal. On December 28, 2022, the facility was issued a Correction Order for the violations outlined in this report, failing to complete incident reports, not emergency contacts listed for children, not following separation requirements, and not following safe sleeping for infants. On December 28, 2022, the license holder was ordered to forfeit a fine of $400 ($200 for each determination that maltreatment occurred) for failing to report maltreatment as required. The Order to Forfeit a Fine is subject to appeal. 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 as to Allegation One is amended from maltreatment determined by neglect of AV1 and AV2 by SP1 and SP2 to a nonmaltreatment mistake. The dispositions regarding Allegations Two through Five remain unchanged. To the extent that the language in the Administrative Reconsideration conflicts with the language in the remaining part of the Amended Investigation 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 and AV2 left the playground without the knowledge or supervision of the staff persons through a playground gate that was not properly secured. SP2 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 previously been found responsible for a similar incident that resulted in a finding of maltreatment or a nonmaltreatment 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 meet the definition of nonmaltreatment mistake under Minnesota Statutes, section 260E.30, subdivision 3, paragraph (b). Therefore, the maltreatment determination is reversed, and the Investigation Memorandum is amended to reflect the actions of SP1 and SP2 as to Allegation One constitute a nonmaltreatment mistake. 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 maltreatment by neglect of AV1 and AV2 as to Allegation One. SP1 and SP2 were no longer substantiated as perpetrators of maltreatment of AV1 and AV2 as to Allegation One 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 each notified by the Office of Inspector General that any future incident of possible neglect of an alleged victim for which each might ben responsible might not be considered a nonmaltreatment mistake. Additionally, SP2 was notified that s/he was no longer disqualified for recurring maltreatment at this time because the single remaining incident of substantiated maltreatment (Allegation Two) does not by itself meet the definition of recurring maltreatment. The amended conclusion does not alter the December 28, 2022, DHS determination that the license holder was responsible for two licensing violations when mandated reporters at the program, including supervisory and administrative staff, had knowledge of two incidents of potential maltreatment but failed to report the information as required by Minnesota Statutes, section 260E.06, subdivision 1.
|
