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January 27, 2025 Jennifer Bodurka, Center Operator Explorers Excelsior 4584 Vine Rd Excelsior, MN 55331-9164 RE: Request for Reconsideration of Correction Order License Number: 1089724 (Cert CCC) Dear Jennifer Bodurka: The Minnesota Department of Human Services (DHS), received your request dated November 8, 2024 for reconsideration regarding the citation in the Correction Order (Attachment A) issued to you on October 30, 2024. After an independent review of the record, the Commissioner has determined that there is sufficient evidence to support the citation. There is one citation listed on this Correction Order. Applicable Statutes and Rules: Minnesota Statute § 245h.13, subdivision 9 (1) and (5)1 Summary: The Minnesota Department of Human Services (DHS) conducted a maltreatment investigation at Explorers Excelsior. A site visit occurred on August 22, 2023. The DHS issued you a Correction Order with one citation on October 30, 2024, stating that staff and volunteers did not use positive behavior guidance. Children were subjected to: corporal punishment, including but not limited to rough handling, shoving, hair pulling, ear pulling, shaking, slapping, kicking, biting, pinching, hitting, and spanking; and the use of physical restraints other than to physically hold a child when containment is necessary to protect a child or others from harm in violation of Minnesota Statutes, section 245H.13, subdivision 9. On August 6, 2024, a staff person grabbed a child's arm and the child sustained a bruise and a cut. The child was not a danger to him/herself or others and did not require physical intervention at the time the staff person grabbed the child. Applicable Law: Subdivision 9. Behavior guidance. The certified center must ensure that staff and volunteers use positive behavior guidance and do not subject children to: (1) corporal punishment, including but not limited to rough handling, shoving, hair pulling, ear pulling, shaking, slapping, kicking, biting, pinching, hitting, and spanking; (2) humiliation; (3) abusive language; (4) the use of mechanical restraints, including tying; (5) the use of physical restraints other than to physically hold a child when containment is necessary to protect a child or others from harm; (6) prone restraints, as prohibited by section 245A.211; or (7) the withholding or forcing of food and other basic needs. Minnesota Statute § 245h.13, subdivision 9 (1) and (5) (emphasis added) Your Response. You contend that the Correction Order stated that the investigation determined Explorers Excelsior was compliant with Minn. Stat. 245H; however, the next paragraph states Explorers Excelsior was found to be in violation. You also argue that Explorers Excelsior took all necessary actions to prevent the prohibited behavior, but is unable to completely control the decisions an employee will make at work. You submitted staff training and policy documents in support of the request for reconsideration. Determination on Reconsideration: The Commissioner has reviewed your request for reconsideration and all information submitted by you and by your licensor. Explorers Excelsior is in violation of Minnesota Statutes, section 245H.13, subdivision 9, but is otherwise in compliance with Minnesota Statutes, section 245H. Despite the training received, the employee was found to have maltreated a child via physical abuse. While this program had in place rules prohibiting its staff persons from subjecting a child to physical punishments and other abusive behavior, the law also requires certified centers to enforce such rules. In this instance, the program’s rules prohibiting the specified staff actions were not enforced, since the employee was found to have maltreated a child by physical abuse. Furthermore, there were indications that Explorers Excelsior was aware of other concerning behaviors by the employee, prior to the maltreatment incident. During the investigation, staff reported trying to model things for the employee to help manage the employee’s expectations regarding kindergartner’s ability to pay attention. Staff maintained concerns regarding managing the employee’s expectations of that age group. The employee expressed objection to working with the kindergarten group. However, when asked if he/she needed to be moved to a different age group, the employee declined. Other staff stated that there were previous concerns in the summer and that numerous conversations were had with the employee regarding “tone”, because the employee was using “a little bit harsher tone.” Other staff observed the employee “screaming” and his/her voice was always raised. Other staff noted that multiple people, including supervisors, told the employee to lower his/her voice and not to scream at the children. One staff member noted that the employee yelled at the kids “for very small things.” The employee acknowledged that there was one incident where a superior overheard the employee talking to one of the kindergarten students and told the employee that the tone the employee was using was not appropriate. Per discussion with the employee’s supervisors, the employee was told that if the employee needed help, the employee had supervisors to use as resources. It appears that Explorers Excelsior was aware that the employee who committed maltreatment had inappropriate expectations of the kindergarten age group and used inappropriate tone with the children. The employee was not moved to a different age group. Although supervisors spoke to the employee, it does not appear that the employee was given additional training or re-training. Issues with compliance with the Corrective Action Required may be addressed with the individual who certifies Explorers Excelsior. Disposition: The Commissioner has reviewed your request for reconsideration and all information submitted by you and by the investigator. The Commissioner finds there is sufficient evidence to support the citation, and, therefore, the citation is affirmed. This is a final agency decision. Sincerely,
So Yeon Woo-Bockman, Attorney Legal Counsel’s Office Office of Inspector General cc: Anjie Flowers, General Counsel, Minnetonka Public Schools District
11 The Office of the Revisor of Statutes recently updated its website to reflect 2024 legislative changes to Minnesota statutes. The Revisor’s website states that parts of Chapter 245H have been renumbered to Chapter 142C. Despite this language on the Revisor’s website, Chapter 245H remains effective until DHS formally transfers power and responsibility for parts of chapter 245H to the Minnesota Department of Children, Youth, and Families. The anticipated transfer date is July 1, 2025. Laws 2024, chapter 80, article 8, section 72; Laws 2023, chapter 70, article 12, section 30.
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