|
December 14, 2023 Sandamalie Bunnell, Authorized Agent American Montessori, Inc. (The) 13973 W. Preserve Blvd Burnsville, MN 55337
License Number: 830418 (Child Care Center) Report Number: 202210340 Dear Sandamalie Bunnell: This matter arises from an Order of Conditional License, dated March 24, 2023. On April 3, 2023, the Minnesota Department of Human Services (DHS), Licensing Division, received your request for reconsideration of 13 of the 14 citations issued in the Order of Conditional License. The violations challenged by American Montessori, Inc. (“American”) are addressed below. The unchallenged violation (Citation 9) is deemed conclusive. A. Reconsideration of the Citations Identified in the Order of Conditional License Staff Qualifications and Training 1. Violation: The required in-service training had not been completed for 3 of 3 (SP1, SP2 and SP6) individuals (director, staff persons, substitutes, or unsupervised volunteers) for the previous concluded calendar year. In-service training did not include: · The required number of in-service training hours calendar year 2022 (SP1, SP2 and SP6). Rule Violated: Minnesota Statutes, section 245A.40, subdivision 7. Repeat Violation: The license holder was previously cited for the same violation involving SP1, SP2, and SP6 in a Correction Order dated November 10, 2022. Additionally, the license holder was cited for a similar violation in a Correction Order dated October 22, 2019. Your request for reconsideration: You stated that the citation was technically true, but that the violation in the Correction Order dated November 10, 2022, C was for different staff persons. DHS’ response: You did not dispute the underlying citation, only whether the November 10, 2022 Correction Order involved the same staff persons. The citation is affirmed. As to whether the November 10, 2022 Correction Order involved the same staff persons as this violation, Citation 16 of that correction order related to SP1, SP2, and SP6 not completing the required in-service training hours for the previous calendar year. The repeat nature of the violation is affirmed as written. 2. Violation: The required staff-to-child ratios were not maintained. There were two aides supervising six infants and three toddlers. When an infant is present, the staff-to-child ratio is one staff person to four children. A third staff person was required. (Toddler classroom) Rule Violated: Minnesota Rules, part 9503.0040, subpart 1. Repeat Violation: The license holder was cited for a similar violation in Correction Orders dated: November 10, 2022, October 27, 2021, October 22, 2019, and August 18, 2018. Your request for reconsideration: You stated that a staff member was out sick that day and that you were not able to get qualified subs to replace them. DHS’ response: When an infant is present in a group, the minimum staff-to-child ratio is one staff to four children. Minnesota Rules, part 9503.0040, subpart 1. In this case, the DHS licensor observed two aides supervising nine children (six infants and three toddlers). As such, a third staff person was required. You did not dispute the underlying violation but stated that a staff member was sick and that you were not able to get a substitute in time. License holders are required to maintain staff-to-child ratios, even if regular staff members are out on leave. The citation is affirmed. 3. Violation: Staff distribution requirements were not maintained. A teacher or assistant teacher did not directly supervise an aide.
There were two aides supervising six infants and three toddlers. A staff person with the qualifications of a teacher and another with the qualifications of an assistant teacher were required. (Toddler classroom) Rule Violated: Minnesota Rules, part 9503.0034, subpart 1; and part 9503.0040, subpart 2, item D. Repeat Violation: The license holder was cited for a similar violation in Correction Orders dated: November 10, 2022, October 27, 2021, and October 22, 2019. Your request for reconsideration: You stated that a staff member was out sick that day and that you were not able to get qualified subs to replace them. DHS’ response: The first staff member needed to meet the required staff-to-child ratio must be a teacher. Minnesota Rules, part 9503.0040, subpart 2, item D, subitem (1). In this case, two aides were supervising nine children. To comply with staff distribution requirements, one of the staff needed to be a teacher. While you stated that a staff person was sick, it is the license holder's responsibility to ensure that staff distribution requirements are met at all times. The citation is affirmed. 4. Violation: The program was not operating within the terms of the license. On the day of the licensing review there were six infants in attendance. The program is not licensed to serve infants. (Toddler classroom) Rule Violated: Minnesota Statutes, section 245A.04, subdivision 7a, paragraph (a). Repeat Violation: The license holder was cited for a similar violation in Correction Orders dated: November 10, 2022, and October 27, 2021. Your request for reconsideration: You stated that you had been working with your licensor at the time of the visit to get the infant room licensed, and were granted the infant license before the Conditional Order was issued. DHS’ response: 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, including the maximum number and ages of persons that may receive services from the program. Minnesota Statutes, section 245A.04, subdivision 7a, paragraph (a); Minnesota Statutes, section 245A.04, subdivision 7, paragraph (a), subparagraph (5). At the time of the licensing visit, your license did not include serving infants, however, you were serving infants during that period. You did not dispute that during the exit interview or in your request for reconsideration. Even though the program’s license has since been updated to include services for infants, at the time of the licensing review, the license did not include infants. The citation is affirmed. Supervision 5. Violation: Staff did not supervise the children at all times (Preschool / School Age). At 11:55 a.m., the DHS licensor observed a preschool child alone in the front entrance putting away their lunch. There was not a staff person in the entrance way with the child. The staff did not have sight of the child and were not able to intervene to protect the health and safety of the child. ( Preschool/School Age classroom) Supervision occurs when a program staff person is accountable for the child's care and 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. Rule Violated: Minnesota Statutes, section 245A.02, subdivision 18 and Minnesota Rules, part 9503.0045, subpart 1, item A Repeat Violation: The license holder was cited for a similar violation in Correction Orders dated: November 10, 2022, October 22, 2019, and August 18, 2018. Your request for reconsideration: You stated that the child was completely visible at all times because it was a half-height door. DHS’ response: The license holder must have and enforce a program plan that mandates that children have supervision at all times. Minnesota Rules, part 9503.0045, subpart 1, item A. In child care centers, "supervision" means when a program staff person: (1) is accountable for the child's care; (2) can intervene to protect the health and safety of the child; and (3) is within sight and hearing of the child at all times (with exceptions for sleeping infants, restroom use, and school-age children retrieving personal items). Minnesota Statutes, section 245A.02, subdivision 18. This incident involved a preschool-aged child in an entrance area, so none of the exceptions to the definition of supervision applied. A staff member was required to be accountable for the child’s care, within sight and hearing of the child, and capable of intervening to protect the health and safety of the child. In this case, the child was on the other side of a closed half-height door from both staff persons who were in the classroom. The DHS licensor observed that one teacher in the classroom was working on a computer against the wall, and the other was not visible from the entrance area. Based on those observations, the record supports finding that the staff persons in the classroom were not within sight of the child in the entryway when the half-height door was closed. The citation is affirmed. Infant and Toddler Care 6. Violation: Daily written reports were not provided to parents. It was determined through a conversation with a staff person that written daily reports are not completed on a daily basis for toddlers. A staff person stated that they communicate to parents verbally at departure and that sometimes written reports are offered. (Toddler classroom) Rule Violated: Minnesota Rules, part 9503.0090, subpart 2, item D. Repeat Violation: The license holder was cited for a similar violation in a Correction Order dated November 10, 2022. Your request for reconsideration: You stated that the citation is incorrect because you have been making daily written reports to parents since previously cited for the same violation in November of 2022. DHS’ response: License holders must ensure that daily written reports are made to the parent of an infant or toddler about the child's food intake, elimination, sleeping patterns, and general behavior. Minnesota Rules, part 9503.0090, subpart 2, item D. A staff person told the DHS licensor that the director would fill out the sheets for parents. When asked about the daily reports, the director told the DHS licensor that s/he reports to parents at the door. When asked specifically whether anything was put in writing, the director replied “sometimes.” When the DHS licensor asked the director whether written reports were provided consistently, the director responded in the negative. The citation is affirmed. 7. Violation: During the program's regular hours of operation, infants were mixed with other age categories. There were two infants mixed with three toddlers on the toddler side of the classroom. (Toddler classroom) Rule/Statute Violated: Minnesota Rules, part 9503.0040, subpart 3, item B, (1). Repeat Violation: The license holder was cited for a similar violation in a Correction Order dated November 10, 2022. Your request for reconsideration: You stated that at the time of the licensing visit, you were working with your licensor to get the infant room licensed. DHS’ response: During the regular hours of operation, infants may not be grouped with children of other age categories. Minnesota Rules, part 9503.0040, subpart 3, item B, (1). The DHS licensor observed infants grouped with toddlers in the toddler classroom. That you were in the process of becoming licensed to serve infants is not relevant to your required compliance with this rule. The citation is affirmed. Behavior Guidance 8. Violation: The program violated the behavior guidance policy prohibiting certain disciplinary actions. The DHS licensor observed three toddlers and two infants in highchairs following lunch. It was determined through a conversation with a staff person that staff leave children in the highchairs for up to 15 minutes following mealtimes to restrict children from accessing toys and materials in the classroom. (Toddler classroom) Rule/Statute Violated: Minnesota Rules, part 9503.0055, subpart 3. Repeat Violation: The license holder was cited for a similar violation in a Correction Order dated November 10, 2022. Your request for reconsideration: You stated that the children had just finished lunch and were in the process of being cleaned up and getting the children ready for the next transition. You also stated that the program would never leave a child in a highchair for up to 15 minutes to restrict them from accessing toys or materials in the classroom. DHS’ response: License holders must have and enforce a policy that prohibits the use of physical restraints other than to physically hold a child when containment is necessary to protect a child or others from harm. Minnesota Rules, part 9503.0055, subpart 3. Upon arriving at the classroom, the DHS licensor observed five infants in highchairs. All the children were done eating. The staff person stated that they remained in the highchair for fifteen minutes following meals to calm down. The staff person handed the infants puzzles. 15 minutes after the DHS licensor first arrived in the classroom, the staff person allowed three infants out of the highchairs, but two remained in the highchairs. When asked about the two infants who remained in the highchairs, the staff person said that s/he rotates them. 25 minutes after the DHS licensor first arrived in the classroom, the staff person allowed the remaining two infants out of the highchairs. The DHS licensor left the classroom five minutes later. When the DHS licensor returned after 30 minutes away from the classroom, an infant was back in a highchair with a puzzle. Based on the DHS licensor's observations and comments from the staff person, the record supports finding that highchairs were used as a physical restraint on children. The children were kept in high chairs well after they were done eating, and while doing an activity such as a puzzle. The staff person even stated that they were kept in highchairs to calm down. Such use of a physical restraint is prohibited. The citation is affirmed. Physical Environment 10. Violation: The program did not provide the children access to interest areas on a daily basis. Children were not provided daily access to a: · music interest area (Toddlers); and · sensory stimulation activities interest area (Toddlers).- Rule/Statute Violated: Minnesota Rules, part 9503.0045, subpart 2. Your request for reconsideration: You stated that the program does music and art activities with toddlers daily. DHS’ response: A child care program that operates for more than three hours a day must provide daily access to interest areas of the center that are supplied with the equipment and materials needed to carry out the activities specified, including music and sensory stimulation activities. Minnesota Rules, part 9503.0045, subpart 2. While you stated that the program does those activities with toddlers daily, during the licensing visit, staff told the DHS licensor that for toddlers they do music activities on Thursdays only, and stated that they don't offer sensory stimulation activities. The citation is affirmed. Hazards 11. Violation: The DHS licensor observed that hazardous objects were accessible to children. There were two bowls filled with water on a table accessible to children. It was determined through a conversation with a staff person that water is heated in the microwave, then infant bottles are placed in the bowls to warm bottles. This poses a risk to children having access to hot water and being burned. (Toddler classroom) Rule/Statute Violated: Minnesota Statutes, section 245A.66, subdivision 2, paragraph (e) and Minnesota Rules, part 9503.0140, subpart 17. Repeat Violation: The license holder was cited for a similar violation in Correction Orders dated: November 10, 2022, and October 22, 2019. Your request for reconsideration: You stated that there was no way that this happened again because after the November 10, 2022 Correction Order you moved the locations of the bowls to a higher shelf in the food prep area. DHS’ response: Hazardous objects must be stored out of reach of children. Minnesota Rules, part 9503.0140, subpart 17. Licensed child care centers must develop a risk reduction plan that prohibits the accessibility of hazardous items to children. Minnesota Statutes, section 245A.66, subdivision 2, paragraph (e). While you state that there was no way that this happened, the DHS licenser directly observed two bowls of heated water on a table accessible to children. A staff person in the room stated that the bowls were warmed up and placed on the table to heat bottles. The water in bowls on the table was heated to a temperature where the water was warm enough to heat bottles. As such, the heated water was a hazardous item accessible to children. The citation is affirmed. Children’s Files 12. Violation: Each child's record did not contain all required information. One of one (C1) children's files reviewed did not contain documentation of any individual child care program needs for the child. There was no individual child care program plan on file for one child who has an individualized education plan. When a license holder admits a child with special needs, the license holder must ensure that an individual child care program plan is developed to meet the child's individual needs. (C1) Rule/Statute Violated: Minnesota Rules, part 9503.0125. Repeat Violation: The license holder was previously cited for the same violation involving C1 in a Correction Order dated November 10, 2022. Additionally, the license holder was cited for a similar violation in a Correction Order dated October 22, 2019. Your request for reconsideration: You stated that there was no way that this happened again because after the November 10, 2022 Correction Order, you completed an individual child care program plan (ICCPP) for the C1. You suggested that perhaps you were not able to find the ICCPP during the site visit. DHS’ response: The license holder must ensure that a record is maintained for each enrolled child and the record includes specific items including documentation of any individual child care program needs for the child. Minnesota Rules, part 9503.0125, item L. There was no ICCPP in C1's record at the time of the licensing visit. While you stated that it was completed before the visit, it was not in C1’s record at that time. In addition, when this was discussed during the exit interview, you were given until the close of business on February 28, 2023, to provide the C1’s ICCPP to the DHS licensor but did not do so. The citation is affirmed. 13. Violation: One of one (C2) children's files reviewed did not contain a current immunization record, a signed notarized statement of parental objection to the immunization, or a medical exemption. Rule/Statute Violated: Minnesota Rules, part 9503.0125, item G; and part 9503.0140, subpart 5. Repeat Violation: The license holder was previously cited for the same violation involving C2 in a Correction Order dated November 10, 2022. Your request for reconsideration: You stated that there was no way that this happened again because after the November 10, 2022 Correction Order, you obtained C2’s immunization record. DHS’ response: The license holder must ensure that a record is maintained for each enrolled child and that the record includes specific items, including documentation of the child’s current immunizations. Minnesota Rules, parts 9503.0125, item G, and 9503.0140, subpart 5. There was no immunization documentation in C2’s record at the time of the licensing visit. While you stated that it was obtained before the visit, it was not in C2’s record during the visit. The citation is affirmed. Policies and Administrative Records 14. Violation: The relocation site and evacuation route was not posted in a visible place as a part of the written procedures for emergencies and accidents in Minnesota Rules, part 9503.0140, subpart 21. Rule/Statute Violated: Minnesota Statutes, section 245A.41, subdivision 3, paragraph (f). Repeat Violation: The license holder was cited for a similar violation in Correction Orders dated: November 10, 2022, October 28, 2021, and October 22, 2019. Your request for reconsideration: You stated that the relocation site and evacuation route had been posted but was removed during remodeling and it was never put back up. You stated that it is now posted again and will remain posted. DHS’ response: The relocation site and evacuation route must be posted in a visible place. Minnesota Statutes, section 245A.41, subdivision 3, paragraph (f). During the licensing visit, the DHS licensor observed that the relocation site and evacuation route were not posted. You acknowledge that they were not posted. The citation is affirmed. B. Reconsideration of the Conditional License Under Minnesota Statutes, section 245A.06, subdivision 1, when issuing a conditional license, the Commissioner must consider the nature, chronicity, or severity of the violation of the law or rule and the effect of the violation on the health, safety, or rights of persons served by the program. In its request for reconsideration, American challenged 13 of the 14 citations and requested that the Conditional License be rescinded. While American challenged the basis for many citations by stating that the issues have since been remedied, or were mere oversight by staff, this did not change the fact that in every one of the citations, the violations occurred and were affirmed. Of the 13 challenged citations, all were found to be supported by the record and affirmed. In total, 14 citations were either unchallenged or affirmed on reconsideration. American’s recent licensing history shows that many of the violations identified and affirmed here were repeat violations that were previously cited via correction order. · On August 18, 2018, American was issued a correction order that identified six violations, one of which was a repeat violation. · On October 22, 2019, American was issued a correction order that identified 18 violations, three of which were repeat violations. · On October 27, 2021, American was issued a correction order that identified 18 violations, three of which were repeat violations. · On November 10, 2022, American was issued a correction order that identified 24 violations, 10 of which were repeat violations. · The present Order of Conditional License identified 14 violations, 12 of which were previously cited via correction order or fine. The significant number of repeat violations indicates that American can benefit from additional compliance and licensing support. Four of the repeat violations were cited in three of the most recent correction orders. All of the repeat violations were identified and cited in a correction order issued on November 10, 2022, just three months prior to the site visit that preceded the Order of Conditional License. This indicates that the American is not correcting violations even as the program has reported to DHS that they have remedied the issues. This disconnect is especially concerning because one of the repeat violations was for operating outside the terms of the license, as American served infants without approval from DHS, and when cited previously for this issue, American informed DHS that it would stop enrolling infants until they were approved to do so. DHS relies on license holders to accurately report information regarding its operations, when a license holder is unable to do so, as in this case, additional oversight is needed. The Commissioner has considered the nature, chronicity, and severity of the licensing violations and determined that a conditional license is warranted. Based on the number and serious nature of the violations, as well as the chronicity of the repeat violations, the Commissioner believes the program can benefit from additional oversight to ensure it can gain and continue compliance with licensing regulations. Based on the following factors, the Commissioner has determined that the record supports the Order of Conditional License: · Staff Qualifications and Training DHS identified four violations related to staff qualifications and training, including the failure to complete in-service training. The violations also identified repeated issues related to staffing: American failed to maintain the required staff-to-child ratios and failed to have enough teachers to meet the staff distribution requirements when it had two aides supervising six infants and three toddlers. In addition, American was not licensed to serve infants at the time of the site visit, yet was serving infants after informing DHS it would cease to serve infants until its license was updated. American had been previously cited for all four violations in at least two prior correction orders. These violations alone warrant a conditional license. · Supervision DHS cited one violation related to failure to supervise children at all times. This was the fourth time in five years that American was cited for a similar violation. In this case, a preschool-aged child was outside of the sight of staff when s/he went to the front entrance area to put an item away. While this violation alone may not warrant a conditional license, taken as a whole with the other violations, as well as the repeat nature of this violation, it supports the conditional license order. · Infant and Toddler Care DHS issued two citations related to infant care. These violations included not providing daily written reports to parents and mixing infants with children in other age categories during regular hours of operation. While these violations alone may not warrant a conditional license, taken as a whole with the other violations, however, they support the conditional license order. · Behavior Guidance DHS cited one violation related to behavior guidance related to an instance where a staff person kept children in high chairs as a means to restrain them from moving about the classroom well after the meal was over. The use of mechanical restraints is prohibited. It is particularly concerning that the staff person's explanation indicated that this was a typical practice, especially considering that this was a repeat violation. While this violation alone may not warrant a conditional license, taken as a whole with the other violations, however, it supports the conditional license order. · Physical Environment DHS cited two violations related to the state of the physical environment. American had violations for unclean indoor space in a classroom, and for failing to provide access to required interest areas daily. Children in the toddler classroom did not have daily access to a music interest area and a sensory stimulation interest area. These interest areas are intended to provide children with opportunities to explore and engage in different activities and interests on their own. Withholding access to these interest areas can limit a child’s opportunity for growth and exploration. While these violations alone may not warrant a conditional license, taken as a whole with the other violations, they support the conditional license order. · Hazards DHS cited one violation related to hazardous objects being accessible to children. In this case, there were two bowls filled with hot water accessible to children in the toddler classroom. This violation is particularly concerning because American was cited for a similar violation just three months prior, yet did not correct the issue. While this violation alone may not warrant a conditional license, taken as a whole with the other violations, however, it supports the conditional license order. · Children’s Files DHS cited two violations related to children’s files These were repeat issues from three months prior involving a missing ICCP and missing immunization information. The Commissioner appreciates, American’s efforts to obtain this information as it indicated it did after the previous citation, however, the missing documentation was not in the children’s files or otherwise available on-site during the site visit. While these violations alone may not warrant a conditional license, taken as a whole with the other violations, however, they support the conditional license order. · Policies and Administrative Records DHS cited one violation related to policies and administrative records. The program failed to post the relocation site and evacuation route in a visible place. The need to evacuate may be a rare occurrence, however, the severity of an incident requiring an evacuation is serious enough to require posting the information to ensure that staff know how to safely evacuate in an emergent situation. While this violation alone may not warrant a conditional license, taken as a whole with the other violations, however, it supports the conditional license order. Ø Based on the specific factors above, an Order of Conditional License is warranted to ensure that American understands the relevant licensing requirements and can come fully into compliance. Due to the need to monitor American for compliance with applicable licensing laws and rules, and to ensure the health and safety of children served by the program, the Commissioner affirms the March 24, 2023 Order of Conditional License. The period of the conditional license is two years, beginning on the date of this letter. Because the terms of your conditional license were stayed pending a decision on your request for reconsideration, the terms of the conditional license begin from the date of receipt of this letter. C. Terms of the Conditional License In addition to the child care licensing rules and statutes, you are required to comply with the following terms: 1. Within 15 days from receipt of this order, you must provide written notification of the conditional status of your license to all parents/legal guardians. Prior to providing the written notification to all parents/legal guardians, you must submit the written notice to your DHS licensor for approval. The notification must specify the length of time of the conditional status of your license, the reasons your license was made conditional, and must include either a copy of the Order of Conditional License or an offer to provide a copy of the order upon request. 2. On an ongoing basis, while your license is on a conditional status, you must maintain a list of all newly hired employees who will have direct contact with children served by the program. The documentation required under this term must be maintained onsite and made immediately available to DHS upon request. For each individual on the list, you must document the following: · the individual’s full name; · the individual’s job title; · the date of hire; · the date the individual first had direct contact with children served by the program; and · the date the background study request was submitted to DHS. 3. On a monthly basis, while your license is on conditional status, you must complete staffing patterns that identify every staff person and his/her job title included in the staff-to-child ratio for each classroom and maintain all completed staffing patterns onsite. The staffing information must be documented on the enclosed form titled "Staffing Patterns," must be completed separately for each classroom, and must include the total number of children in attendance each hour for each classroom. The documentation must include the time each person takes their break, if applicable, and identify the name of the person who replaces them. Staffing patterns must be completed at the beginning of each month and made immediately available to the Commissioner upon request. Within 30 days from the receipt of this order, you must develop a plan to ensure staff-to-child ratios are maintained at all times and submit the plan to your licensor for approval. Your licensor will monitor your compliance with all applicable laws and rules. Verification of compliance may include unannounced visits. Failure to comply with the requirements in Minnesota Rules, parts 9503.0005 to 9503.0170 (DHS Rule 3), Minnesota Statutes, chapter 245A (Human Services Licensing Act), Minnesota Statutes, chapter 245C (Human Services Background Study Act), Minnesota Statutes, chapter 260E (Reporting of Maltreatment of Minors) and with the terms of your conditional license may result in further negative action, including revocation of your license. D. POSTING the Order of Conditional License Under Minnesota Statutes, section 245A.06, subdivision 8, you must post the Order of Conditional License in a place that is conspicuous to the people receiving services and all visitors to the facility for two years. This is a final agency decision and is subject to further review only by the Minnesota Court of Appeals. Please note that there are time limits for seeking review by the Minnesota Court of Appeals. See Minnesota Statutes, Chapter 606, and Minnesota Rules of Civil Appellate Procedure, Rule 115. If you have any questions regarding the Order of Conditional License, please contact Donna Gainor, Unit Supervisor, at (651) 431-6529. Sincerely,  Afsheen Foroozan, Attorney Legal Counsel’s Office Office of Inspector General
|
