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May 24, 2024 Theresa Krishnan, Authorized Agent Rainbow Montessori Academy LLC 8736 Nicollet Avenue South Bloomington, MN 55420-2836 License Number: 1090035 (Child Care Ctr) Program Location: 8736 Nicollet Avenue South, Bloomington, MN 55420-2826 Report Number: 202309778 Dear Theresa Krishnan: The Minnesota Department of Human Services (DHS), Division of Licensing, received your request for reconsideration of Citations 2 and 3 from the Correction Order issued by DHS on January 26, 2024. You did not request reconsideration of any other citations, therefore, those citations are final and not subject to review. SUMMARY OF CITATIONS AND RECONSIDERATION DETERMINATION: Citation 2. The program violated the behavior guidance policy prohibiting certain disciplinary actions. On November 17, 2023, a staff person (SP2) handled a child in a physically forceful manner including, lifting the child by his/her arms, swinging the child up so fast that the child’s legs “flew out” from under him/her and were parallel to SP2’s waist. The child was in the air approximately five feet and when the child was approximately the height of SP2’s knees, SP2 dropped the child onto another carpet square. The child landed on his/her tailbone. The child cried, rolled over, and reached for his/her tailbone area. Later the child had a bruise on his/her buttocks. (preschool room) Applicable Law. Under Minnesota Rule 9503.0055, subpart 3, a license holder must have and enforce a policy that prohibits a staff person from subjecting a child to corporal punishment. Under the Rule, corporal punishment includes rough handling a child. Your Response. You challenge the citation, arguing that the program was in compliance with the applicable rule. Specifically, you contend that the program has in place appropriate behavior guidance policies that prohibit a staff person from subjecting a child to certain disciplinary actions, including rough handling. Reconsideration Determination. As discussed in Amended Investigative Memorandum for maltreatment report number 202309778, the record does not support finding that the child suffered bruises in the incident, nor that the child was approximately five feet in the air. Instead, the record supports finding that the child was approximately three feet in the air. Those details were updated for accuracy in the Amended Investigative Memorandum, but they do not impact the correctness of the underlying violation. In the Amended Investigative Memorandum, DHS affirmed the following facts upon an administrative reconsideration of the matter: on November 17, 2023, a toddler-aged child was not complying with a teacher’s directions to go back to his/her spot, and in return, the teacher picked up the child by his/her arms, swung the child around so fast that the child’s legs “flew out” from under him/her and became parallel to the floor, then dropped the child onto a carpet square on his/her tailbone from the height of the teacher’s knees. DHS affirmed that the above-described conduct constitutes physical abuse of the child under Minnesota Statutes, section 260E.03, subdivision 18, paragraph (a). While this program had in place rules prohibiting its staff members from subjecting a child to physical punishments and other abusive behavior, the law also requires child care license holders to enforce such rules. In this instance, the program’s rules prohibiting the specified staff actions were not enforced, since a staff person did roughly handle a child rising to the level of physical abuse. Moreover, the program did not report the incident as suspected maltreatment (addressed in the January 26, 2024 Fine Order), did not document the incident as part of its administrative records (addressed below for Citation 3), and did not conduct an internal review of the incident, including the related corrective action, until December 11, 2023, by which time the center had been apprised of the maltreatment report and investigation. In all, the program did not meet its responsibility to carry out and give effect to its own rules meant to prevent and create accountability for instances of minor maltreatment and prohibited disciplinary practices. Citation 2 is affirmed.
Citation 4. The program was not maintaining a written record of accidents, injuries, incidents, and emergencies. The program did not maintain a written record of the incident. Applicable Law. Under Minnesota Rule 9503.0110, subpart 4, item C, a licensed child care center must maintain, as part of its administrative record, a written record of accidents, injuries, emergencies, and incidents. Under Rule 9503.0115, a center must keep those records on site, and make them available for inspection at the request of the Commissioner. Your Response. You challenge the citation, arguing that the program had no reason to believe that an accident, injury, incident, or emergency had occurred to necessitate a written record, and that, nonetheless, the program fulfilled the written record requirement through its internal review documentation. Reconsideration Determination. You assert that the program had no reason to create and maintain a written record of the teacher’s reported conduct, because the program believes that the teacher’s conduct toward the child was within appropriate bounds. While Chapter 9503 of the Minnesota Administrative Rules does not specifically define what constitutes an incident that a program must document as part of its administrative record, the nature of this particular situation makes it an incident, in the context of “accidents, injuries, incidents, and emergencies” requiring documentation. In this matter, a parent of a child in the program reported seeing a teacher physically move and drop a non-related child in an aggressive way. The parent overall summarized the teacher’s conduct as swinging the child around “like a bag of mulch.” The parent was troubled enough by what s/he saw that s/he immediately contacted the program director to express his/her concerns, and then agreed to meet in person for a further discussion, during which s/he remained firm in his/her account. In sum, a parent had communicated to the program, in unambiguous terms, witnessing a potential maltreatment of a minor by one of its staff persons. Whether or not the program agrees that the teacher maltreated a child, the allegations were serious and outside the norms of day-to-day operations of a child care program. Such circumstances reasonably warranted documentation of the incident by the program. In addition, the internal review required under under Minnesota Statutes, section 245A.66, subdivision 1, is a separate requirement than the requirement to maintain a written record of accidents, injuries, incidents, and emergencies under Minnesota Rule 9503.0110, subpart 4, item C. At the time of the site visit, around three weeks after the parent reported the incident to the program, the program had not documented the incident. Citation 3 is affirmed. Disposition: The Commissioner has reviewed the relevant laws and all of the information you submitted in response to the Correction Order. Citations 2 and 3 are affirmed. This is a final agency decision. Previously Ordered Corrective Action: In the Correction Order issued on January 26, 2024, you were ordered to correct the violations cited, and submit documentation of such action to your licensor. A request for reconsideration does not stay any provisions or requirements of the correction order. Minnesota Statutes, 245A.06, subdivision 2, paragraph (a). If you have not done so already, please immediately comply with the previously ordered corrective actions for all uncontested and affirmed violations. The Commissioner appreciates your response and encourages you to continue to work cooperatively with your licensor to ensure the safety and well-being of the children you serve. Sincerely,
So Yeon Woo-Bockman, Attorney Legal Counsel’s Office Office of Inspector General
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