| Date: | 03/12/2008 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | OC-07-526 |
On July 5, 2007, the Petitioner, the Department of Early Education and Care (EEC) determined that an emergency exists at the family day care home operated by the Respondent Little Sprouts Day Care (Little Sprouts) and its Director, Sherry Pease, at 505 East Street, Pittsfield, MA 01201. Pursuant to the provisions of G.L. c. 28A, §13 and EEC regulation 102 CMR 1.00, et seq., EEC suspended the Respondent's family day care license #8117182, effective July 20, 2007, prior to any hearing. Along with this same action, EEC issued a Notice of Fine of $500 per day. On July 11, 2007, the Respondent filed a timely request for a hearing on both matters. Just prior to this action, on June 8, 2007, EEC had issued a Notice to Revoke the license of Ms. Pease to operate Little Sprouts. ("A". Exs. 1 & 2)
A hearing on these matters was held November 1, 2007, at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, 4th Floor, Boston, MA 02114, pursuant to G.L. c. 7, §4H and 801 CMR 1.01, et seq. Various documents are in evidence. (Exs. 1 - 26) The pleadings are marked, "A". Three tapes were used. The Petitioner presented the testimony of the following EEC employees: Linda Lenahan, Group and School Age Program Supervisor for the Western Region; and, Erin Murphy Craft, currently Acting Associate Commissioner of Field Operations and previously the Regional Director for the Western Region. The Respondent, Sherry Pease, testified on her own behalf. The Respondent's motion to sequester the two EEC witnesses was denied. The Respondent filed a brief by December 12, 2007 when the record closed.
EEC alleges that there is reasonable cause to believe that an emergency exists at Little Sprouts as operated by Sherry Pease, that endangers the life, health, and/or safety of the children in her care. The bases for the EEC action to impose an emergency suspension are that Little Sprouts violated the terms of two previously issued legal orders. An Order to Protect Children: Order to Correct Violations and Notice of Sanctions issued October 6, 2006, and an Order to Protect Children: Notice of Revocation and Second Notice of Sanctions issued June 8, 2007. EEC alleges that over the course of about one year as EEC tried to work with the Licensee, she showed a lack of cooperation and a lack of sound judgment which reached a level where EEC could not be sure the children were safe when attending Little Sprouts. EEC alleges that Ms. Pease continued to insist upon a candidate for Director of Little Sprouts who had a background EEC found inappropriate because of past DSS "51B" reports against her. EEC alleges that Ms. Pease failed to correct conditions set forth initially in the October 2006 Sanctions Order. EEC alleges Ms. Pease also failed to propose the name of a qualified interim Advisor as she was required to do pursuant to the June 2007 Revocation and Sanctions Order. EEC alleges Ms. Pease failed to post the June 2007 Order, and that she violated the enrollment freeze. EEC alleges it has no confidence in Ms. Pease's ability to adequately administer Little Sprouts. The Emergency Suspension Order was imposed pursuant to 102 CMR 1.07(5)(a). The Notice of Fine was issued pursuant to 102 CMR 1.07(3)(b), "at the rate of $500 per day." ("A")
1. EEC issued to Little Sprouts and its owner, Sherry Pease, a group child care license #8117182 for her facility at 505 East Street, Pittsfield, MA 01201, in July 2003. The capacity under the license was for 44 children, aged one month to seven years old. The location of Little Sprouts has always been the same. (Testimony)
2. Ms. Pease took courses in early childhood education. She was a pre-school teacher for eleven years. She took further courses, and reached the level of Director II status to add to her prior status of Lead Teacher. When starting up Little Sprouts, Ms. Pease did a lot of research on how best to organize Little Sprouts' physical facilities, both inside and outside. She worked with EEC staff to resolve questions she had. (Testimony)
3. Between May and December 2005, a child in Ms. Pease's care had twelve documented incidents where staff suspected abuse or neglect. These included the child arriving at Little Sprouts for care in dirty clothes and diapers. There were also signs of suspected physical and sexual abuse. Not until after the child left care at Little Sprouts was a G.L. c. 119, §51A complaint report filed with the Department of Social Services (DSS) on the child by Little Sprouts staff even though they were mandatory reporters of such concerns to DSS. This was done in and around January 2006. EEC found this delay to be a violation of 102 CMR 7.05(3)(b)1, 2 and 3. EEC also found that Ms. Pease had failed to provide adequate and proper training to her staff about abuse and neglect reporting, which was a violation of 102 CMR 7.08(4)(b)1.c. ("A")
4. Ms. Pease did not know about all the incidents of suspected abuse or neglect that her staff had taken notes on concerning this child for a long time. She only learned of long standing concerns when she herself initiated contact with DSS once the child had left Little Sprouts. Her staff had not previously come forward to her or filed reports with her concerning the child. (Ex. 2. Testimony)
5. Ms. Pease had a practice of walking with staff's help, eighteen children attending Little Sprouts, to their swimming lessons about four blocks away. June 28, 2006, was a stormy and rainy day, so she decided to drive the children in her private car to their lessons. None of the parents had given written consents to let her do this. No child seats were used. She placed too many children at a time in her car. She made four trips. She and the staff walked the children back to Little Sprouts as usual, following the swimming lessons. This conduct was found by EEC to be a violation of: 102 CMR 7.05(3)(a); 102 CMR 7.09(3)(a)4; and, 102 CMR 7.12(4)(a). ("A")
6. This incident led some of the parents to file "51A" complaints with DSS. At some point, Ms. Pease filed a "51A" complaint against herself with DSS over her decision to drive the children to the swim lessons. Ms. Pease's own Little Sprouts policy called for a staff person against whom a "51A" report had been filed to be suspended and out from work pending the outcome at DSS of the matter. Nevertheless, Ms. Pease continued working at Little Sprouts, and only stopped working when EEC required that she stop. On July 25, 2006, DSS issued a supported G.L. c. 119, §51B report against Ms. Pease for neglect of the eighteen children. EEC found that the conduct of continuing to work following the issuance of a "51A" report against her, and failing to report to EEC that a "51A" report was filed against her, was a violation of 102 CMR 7.05(3)(b)5. ("A")
7. Ms. Pease spoke to each of the parents about the transportation issue, admitting she had acted improperly. Almost all the parents continued to use Little Sprouts. (Ex. 2. Testimony)
8. In the course of EEC's investigation of the unsafe transportation incident, further child care regulatory violations were uncovered at Little Sprouts. EEC found Ms. Pease had Assistant Teachers alone with children during nap times and during the first hour of child care, although they lacked approval to be left alone with them. During September 14 and 22, 2006 visits, EEC found Little Sprouts had routinely poor staffing levels with inadequate staff to children ratios, had staff doing work they were not qualified to do, and some staff on duty had not had their CORI (criminal background) checks done yet. EEC found this course of conduct to be in violation of 102 CMR 1.05(2)(a)1; 102 CMR 7.21(2)(a); and, 102 CMR 7.22(5)(a), (b), (c), and (d). ("A")
9. Ms. Pease had difficulties with maintaining proper staffing levels following the transportation incident, but the staffing was at a full complement by October 2006. (Ex. 2. Testimony)
10. During this same time period, EEC found Ms. Pease was not dedicating all her time to administrative work and was often filling in for her lack of staff in violation of 102 CMR 7.20(2)(f). She was found to be serving as a full-time Food Preparation consultant in violation of 102 CMR 7.20(5). She was found not to be adequately administering the children's records, and was not making them accessible to her staff at all times by keeping them locked away in her office with no way for staff to access them. This was found to be in violation of 102 CMR 7.06. ("A")
11. During this same time period, EEC staff saw a child's walker hanging from a peg over a crib where an infant was sleeping and found that to be a safety violation under 102 CMR 7.23(4). EEC found fruits and vegetables left out on a counter with fruit flies in violation of 102 CMR 7.11(6). EEC found Ms. Pease was using a climbing structure that was not age appropriate for the toddler/preschool area it was in, and that there were no proper fall materials under it in violation of 102 CMR 7.23(4). EEC found at least one unsafe crib with wood slats, raised corner points, and exposed metal brackets not up to required safety standards in violation of 102 CMR 7.24, a hazard EEC staff had previously told Ms. Pease to correct. ("A")
12. On October 6, 2006, based on what EEC found to be serious errors in judgment, and for placing children at risk at Little Sprouts, EEC issued an Order to Protect Children: Order to Correct Violations and Notice of Sanctions pursuant to 102 CMR 1.07(1), (2) and (3), to be in effect "for at least six months," after which EEC could lift, modify, or extend" them. ("A". Ex. 3) The Sanctions were as follows:
- freeze enrollment at current level with no new children without securing EEC's
approval in advance, no replacing of children once they leave Little Sprouts without EEC's approval in advance;
- hire a new Director to administer Little Sprouts' programs on a daily basis. EEC called for the person to be full time and having at least a Director II status. The new Director would be responsible for securing the full compliance of the program with all EEC regulations and policies, ensure all CORI checks were done, and keep program policies updated. The new Director would supervise all Little Sprouts staff and do trainings and professional development programs with them. The new Director would ensure that all reports of suspected abuse and neglect were timely made. Ms. Pease could continue on as President of the Little Sprouts program, work in classrooms, work on financial aspects of the program, but would, along with the new Director, "seek technical assistance from EEC in defining duties" as needed. Ms. Pease was to provide EEC within two weeks of the start of the Sanctions for purposes of getting EEC's approval, the name and qualifications of the person proposed to be the new Director;
- Neither Ms. Pease, nor any staff of Little Sprouts would be allowed to transport the child care children in any motor vehicle, whether owned by Little Sprouts or privately owned, for any reason;
- Ms. Pease had to develop and implement an EEC approved training for Little Sprouts staff on how to identify and report, abuse and neglect of children to be in satisfaction of G.L. c. 119, §51A criteria, including how to respond to allegations of abuse or neglect pertinent to any staff member. The new Director was expected to work with the local DSS office on this task with the training presented by DSS staff. The training was to be finished within 90 days of the start of the Sanctions, and to report to EEC's Program Supervisor on details about the training. If the training could not be done within the required time period, EEC would need to be approached with the reason for the delay with a request to allow it to be beyond the required 90 day time period;
- Ms. Pease had to let all the Little Sprouts' parents know about the Sanctions, and have them complete the Parent Acknowledgement Statement, followed by filing them within seven days of the start of the Sanctions with EEC. This order was also to cover any parents of newly enrolled children allowed by EEC to be in the program despite the enrollment freeze; and,
- Ms. Pease was required to post the Sanctions/Order of October 6, 2006 at Little Sprouts. ("A")
13. When Ms. Pease received the October 2006 list of violations and
Sanctions, she also was given notice that she could be fined for a failure to comply with the orders imposed upon her. ("A")
14. By letter to EEC of November 21, 2006, Ms. Pease, through her counsel, responded to the October 2006 actions. She sought to rescind the order to freeze enrollment because all the problems found by EEC were either fixed or in the process of being fixed. Ms. Pease responded that she had been seeking a new qualified Director, and offered candidate Michelle Daly, who was able to start in December 2006. Ms. Daly had been working part-time at Little Sprouts since August 2006. She held Lead Teacher status for infants and toddlers. She also held Director II status. Ms. Daly had received excellent and very good evaluation ratings on her work at her prior employer in November 2005 for her work as a Lead Teacher with infants and toddlers. She had been assessed then as knowledgeable and competent to understand the regulatory requirements she had to satisfy in her work. She had never had her Director II status revoked. From 2005, Ms. Daly had been a foster parent with DSS. Ms. Daly had known Ms. Pease for about ten years. In terms of an inability to transport Little Sprout children, Ms. Pease noted that order was being complied with but would not in the case of an emergency. Ms. Pease sought rescission of the order for training staff about abuse and neglect issues since she asserted staff "have twice complied with this request prior to the imposition of sanctions … January 24, 2006, and … March 15, 2006 [when] the Department of Social Services … conducted trainings … attended by all employees of the Center." (Exs. 2, 4 &26. Testimony)
15. EEC responded to Ms. Pease by letter of December 21, 2006. Based on EEC's visit to Little Sprouts of November 29, 2006, EEC informed Ms. Pease that Little Sprouts "has not yet shown its ability to comply with the Sanctions imposed." EEC continued to require the enrollment freeze since allowing more children into the program "would place demands upon the program which the program is currently unable to meet." EEC pointed out that Michelle Daly would need to be approved by EEC, and that her resume had not been sent to EEC as expected. EEC further pointed out that by January 19, 2007, a meeting that would include Ms. Daly and Ms. Pease had to be scheduled with the EEC Regional Director and with the EEC Group and School Age Program Supervisor. This letter also continued to call for abuse and neglect training sessions by March 15, 2007, and indicatedthat EEC was not aware that any effort at scheduling them with DSS had been made. Ms. Pease was informed that EEC should be contacted if she was having trouble setting up such trainings. EEC also addressed the Parent Acknowledgement Statements and the posting of the Sanctions/Order of October 2006. EEC noted it had received these Statements, and EEC staff saw that the Order was posted on November 29, 2006 when they made their visit. Ms. Pease was warned to continue to post the Order. (Ex. 5)
16. In reaction to what EEC staff found at these visits, Ms. Pease corrected the unsafe and hazardous conditions. (Ex. 2. Testimony)
17. Ms. Pease, through her counsel, informed EEC that she and Ms. Daly would not be able to meet with EEC until after January 23, 2007. She also explained that she would not be able to arrange the abuse and neglect training within the deadline called for in the Order. EEC wrote Ms. Pease's counsel seeking information on how she was going to fully comply with the Order. (Ex. 6. Testimony)
18. On January 30, 2007, Ms. Pease's counsel sought from EEC all the information it had regarding Michelle Daly. EEC was also informed that the DSS training session would occur on February 12, 2007, and that it was approved by EEC. (Ex. 7)
19. By fax of February 2, 2007, Ms. Pease sent EEC an organizational chart of Little Sprouts which listed Ms. Pease as the Executive Director/Owner and Ms. Daly as the Program Director. The chart contained general statements of their duties. (Ex. 8)
20. EEC did not expect Ms. Pease to have already hired Ms. Daly before EEC approved of her hire as the Order required. By letter of February 7, 2007, EEC informed Ms. Pease's counsel that Ms. Daly had to have EEC's approval before being hired as Director. EEC made clear that the failure to submit Ms. Daly for approval before her hire violated the Order, and that EEC had "serious reservations regarding Ms. Daly's ability to serve as Director of Little Sprouts," noting the following:
She has been the subject of three separate complaint investigations since 2001. The latest investigation occurred in May 2006 where Ms. Daly was found to have engaged in improper child guidance techniques when she and another staff member allowed a toddler to sit alone in a dark bathroom. (Ex. 9)
EEC did not approve of Ms. Daly's candidacy, finding that she lacked the appropriate judgment to serve as the Director of Little Sprouts, a program that has been plagued by numerous problems. (Ex. 9)
EEC sought submission of another candidate for Director, and to do so by February 23, 2007. (Ex. 9) EEC noted:
At this point, the issue of finding a new Director is the only one remaining issue outstanding. This must be resolved before EEC can even consider lifting the enrollment freeze. (Ex. 9)
21. Ms. Pease's counsel responded to EEC by letter of February 8, 2007. Noting how an enrollment freeze places a financial strain on Little Sprouts, and that it is difficult to locate many qualified candidates for Director within Western Massachusetts, a proposal was made to EEC in hopes that the enrollment freeze could at least be lifted as to the eight children who had left the program. (Ex. 10)
Sherry Pease will immediately begin to advertise for a new director, level 2, using radio advertisement, newspaper, advertising, postings at Berkshire Community College, postings with the Corporation for Public Management as well as postings at Berkshire Works. Copies of all advertisements would be sent to the EEC Supervisor …. Ms. Pease would … work with … [EEC] to select the most appropriate candidates for the position prior to interviewing them. After interviewing and selecting the most appropriate candidate, Ms. Pease will contact … [EEC] to obtain their written approval of that individual.
Until such a new individual is located and approved of, Michelle Daly would continue to work at Little Sprouts. While working, Michelle will be taking a course entitled, "The Human Side of Child Care Administration: A How-To Manual." Michelle would work under a probationary status … [with] whatever conditions, provisions and supervision by EEC [called for].
We are asking that, during the period it takes to find a new director, level 2, Little Sprouts be allowed to enroll some new students up to the level they were at the time the sanctions were imposed … obvious that, despite disagreements with EEC, Little Sprouts has made every good-faith effort to be in compliance with the sanctions. They should not be penalized financially during the time it takes to comply with the last sanction, as long as they are showing serious and ongoing efforts to comply with this last issue. (Ex. 10)
22. EEC responded to the proposal by letter of February 15, 2007. EEC ordered that the current freeze on enrollment continue until a new Director candidate is approved by EEC and actually hired by Little Sprouts. EEC noted that it was pleased Ms. Pease was taking steps to seek out candidates for Director. EEC also noted that the issues it had with Ms. Daly meant it was "premature to even partially lift the freeze." EEC sought to be kept informed about the progress Ms. Pease would be making on locating candidates for a new Director, which was noted to be "the only remaining issue outstanding." (Ex. 11)
23. By letter of March 5, 2007, Ms. Pease sent EEC the resume of candidate Christina Rotolo as a hire "to help Ms. Pease in the interim while she tries to find a new level II director." Ms. Rotolo lacked the Director II status. (Ex. 12)
24. By letter of March 14, 2007, EEC informed Ms. Pease that Ms. Rotolo would not be approved as an Interim Director. She was found not qualified "to be Acting Director of a group child care center … had no administrative experience whatsoever, and one of the program's biggest problems had to do with poor administration." (Ex. 13)
25. Ms. Pease tried a few radio advertisements for a Director II job candidate without success. She asked around within the child care community in her area to see if there were any job candidates, but without success. Ms. Pease proposed a candidate to EEC of Kathleen Murphy sometime later. EEC sought from Ms. Pease a proposed work schedule for her. Ms. Pease responded by letter to EEC of May 10, 2007. The schedule covered only part-time or four hours each workday at different time periods each day for Ms. Murphy. The letter did not make a formal request that she be considered as a Director or as an Advisor pending the hire of a qualified Director. (Ex. 2. Testimony)
26. When Ms. Pease left for vacation in May 2007, she designated Ms. Daly to be left in charge of Little Sprouts. She did not inform EEC that she was doing this. On May 18, 2007, EEC staff made a monitoring visit to Little Sprouts. Ms. Pease was on vacation. (Ex. 16) EEC staff found the following notice posted at Little Sprouts:
May 18, 2007
Dear Parents,
Sherry is away on vacation next week and I will be managing the program on her behalf. Please let me know if I can be of assistance to anyone while she is away. I should arrive here by 8:00 am and plan on leaving for the day about 4:00 - 4:30.
Thank you,
Michelle (Ex. 15)
27. During this monitoring visit, EEC staff found a number of regulatory violations, and filled out a Statement of Non-Compliance form calling for Ms. Pease to complete a Plan of Correction. (Exs. 16 & 25. Testimony)
102 CMR 1.07(3) - Violating the enrollment freeze with a toddler present who was not enrolled in the program and was the child of a staff member. The child was ill and needed the staff member's attention.
102 CMR 7.05(4)(a) - Toddler bikes and a stroller were hung on hooks in the wall above an area where children play and sleep, and posed a falling hazard for the infants and toddlers using the room. Program was previously cited 9/14/06 for hanging a baby walker on a peg in the wall.
102 CMR 7.05(4)(c) - Containers of cleaning materials stored inside the doorway of the smaller kitchen area could be easily reached by children in the toddler/preschool room.
102 CMR 7.05(6)(a)1.a - The children in the toddler/preschool room did not wash their hands prior to eating lunch.
102 CMR 7.11 - Toddlers were given whole hot dogs as part of lunch which are a potential choking hazard and not recommended for children under the age of 4.
Toddlers were given slices of peaches not cut to an appropriate size, and are a possible choking hazard.
Staff serving lunch to the children in the toddler/preschool room were not using gloves when handling the food.
The vegetable that was part of the lunch for the toddler and preschool children was heated and left in the smaller kitchen area for a period of at least ten minutes before being served.
102 CMR 7.20 - While the Licensee/Owner was on vacation, she left an administrator in charge who had not been approved by EEC during the current legal order due to her disqualifying history of "51B" reports.
102 CMR 7.22(1) - Three adult outdoor chairs were lined up on the edge of the playground for staff who should have been doing hands-on supervising of the children using the play equipment.
102 CMR 7.23(3)(e) - There was not a sufficient amount of sand in the sandbox in the outdoor playground.
102 CMR 7.23(4) - The wooden climber in the outdoor play space was not developmentally appropriate for the toddlers who were being allowed to use it.
102 CMR 7.24(5)(d) - The space between mats used for resting in the toddler/preschool room were not at least a minimum of 2 feet apart.
102 CMR 7.25 - The exit in the storage closet that may be used for an emergency evacuation was partially blocked with stored equipment and other materials.
The closet being used for storage included materials that should be inaccessible to children and did not have a secure gate or door. The cloth curtain being used was not a sufficient barrier to keep children in the preschool room out of this area.
102 CMR 7.25(4)(c) - A set of stairs leading to and from the cement porch which were used to enter and exit the playground had no barrier at the bottom of these stairs to prevent children from reaching the playground.
The cement porch had areas of chipping paint and rust especially on the doors leading into the program areas.
The playground had exposed metal supports along the cement porch that were a hazard. (Ex. 16)
28. In response to what was uncovered at this May 2007 monitoring visit, EEC wrote to Ms. Pease's counsel on May 25, 2007. EEC warned that it was taking too long for Little Sprouts "to come into compliance with EEC's required sanctions." EEC noted the new health and safety violations found included some that had been present from the earlier inspection by EEC. EEC found these violations impacted on the quality of supervision and attention the children were receiving, and showed that Ms. Pease "is incapable of properly running this program because she continues to exercise poor judgment." EEC noted how it has worked with the program and with Ms. Pease even giving consideration to having an interim Director and even considering lifting the freeze because of financial hardships, but that Ms. Pease has not shown she is meeting the children's needs. EEC now lacked confidence that use of an interim Director would make a difference. EEC concluded that the Sanctions/Order would not be modified, and that "EEC will shortly be issuing an order revoking Little Sprouts' group child care license." (Ex. 17)
29. On June 7, 2007, Ms. Pease filed her responses to the regulatory violations uncovered from the monitoring visit in May. In regard to the staff member's ill child, Ms. Pease explained it was a one time event and that this staff person was no longer working at Little Sprouts due to low enrollment levels because of the enrollment freeze. In terms of the hanging bikes and stroller on hooks on the wall above where children play and sleep, Ms. Pease explained that they have been taken down. She noted that the containers with cleaning materials were removed and are now inside a drawer. She noted that she now has all the toddlers/preschool children washing their hands before eating meals. She noted her understanding that hot dogs were allowed for her program "as long as they are cut to the appropriate size," and that they would be "in the future." Ms. Pease noted the peaches would be cut to a size appropriate for the children. She noted her staff had not touched the food but just the sides of plates when they served lunch without gloves on, and that gloves were not required under this situation. She further explained that "canned vegetable or fruit may be left out, covered, for about 4 hours," and that the vegetable the EEC staff saw was inside the microwave at the time. Ms. Pease explained that Ms. Daly had been left in charge with her attorney's knowledge, and she had been trying to gain EEC's approval of Kate Murphy as an interim Director, without success, before her vacation started. She further noted that Jodi Lee, a qualified Teacher, had in the past been left in charge during her absence, so that Ms. Daly having the Director II status would have seemed adequate for this purpose, and that she did not know she needed EEC's permission to leave Ms. Daly in charge during her vacation. Ms. Pease explained that the three chairs on the playground area were removed, there was new sand in the sandbox, and the "large wooden climber had been disassembled and removed" so that there was now a "plastic climber and smaller plastic climber" with a six foot fall zone. Ms. Pease stated it was an oversight that the mats in the toddler/preschool room were not the proper minimum distance apart and that staff have been told to comply with this in the future. She noted that the wooden blocks that had blocked an emergency exit are now gone so there is a "clear path going to the evacuation exit through the storage closet." Regarding the closet used for storage that had materials accessible to the children with no secure gate or door, i.e., only a cloth curtain, Ms. Pease reported to EEC that by "July 1st a barrier will be placed from the interior wall to the exterior wall, blocking the children's access to the supplies." In regard to stairs leading to and from the cement porch used to reach the playground and the lack of a barrier at the bottom of the stairs to prevent children from reaching the playground, Ms. Pease responded that a gate would be installed. Regarding the chipping paint and areas of rust in the cement porch area, Ms. Pease explained that she has asked her landlord to fix the conditions and that by "July 1st the chips will be gone and the paint will be replaced." She also reported that metal supports along the cement porch "will be covered by July 1st." Ms. Pease reported the plastic slide had also been removed. Ms. Pease reported that the large wooden play equipment was down and that the largest plastic piece was only 5 feet high leaving 6 inches of wood chips for an adequate fall zone. She also reported that by "July 1st all the exposed sheetrock will be covered." (Ex. 18. Testimony)
30. On June 8, 2007, EEC issued an Order to Protect Children: Notice of Revocation and Second Notice of Sanctions against Little Sprouts/Ms. Pease. EEC explained "that Little Sprouts has failed to comply with several of the Sanctions set forth in EEC's October 6, 2006 Order … EEC has attempted to work with Little Sprouts, but its Director, Sherry Pease, has not been forthcoming with EEC, has not made reasonable efforts to comply with the original Sanctions Order." The letter required the posting of this June 8, 2007 Order, and that Little Sprouts secure the signed Parent Acknowledgement Statements to return to EEC. Rights to appeal were included in the Order. ("A". Ex. 19)
31. The legal bases for the June 8, 2007 Order were all the conditions found by EEC staff during the May 2007 monitoring visit. There was no reference made in the Order to the response of Ms. Pease to these violations received the day before issuance of this Order. The revocation of license action was based on EEC permitting Ms. Pease almost eight months to come into compliance with all the October 2006 Sanctions along with her continuing "to propose unsuitable candidates to serve as Director of Little Sprouts." EEC found "she has knowingly violated the EEC imposed enrollment freeze by enrolling at least one new child … and … minimize[d] the serious nature of the Sanctions by claiming that the Sanctions were to be removed imminently." EEC concluded that children remain at risk at Little Sprouts. The authority for the revocation of the license was listed as 102 CMR 1.07(4). ("A". Ex. 18)
32. In addition to the Notice of Revocation, EEC issued further Sanctions as per 102 CMR 1.07(1), (2) and (3). The enrollment freeze was continued. No transporting of children was allowed. Ms. Pease was ordered to hire a qualified person to oversee the administration of the program on a daily basis with satisfaction of the Director II status requirement, and with EEC prior written approval of the hire. She was given 14 days to provide the name of such person to EEC. EEC also required written proof of the hire of the qualified person within a further seven days of that person's start date. If no such candidate-hire was accomplished then EEC warned of an immediate suspension of the operation of Little Sprouts "since EEC had found that Ms. Pease does not possess the proper judgment to run this program on her own." These Sanctions were also to involve the completion and filing of the Parent Acknowledgement Forms and the posting of the Sanctions/Order. Ms. Pease was further warned that EEC staff would be monitoring Little Sprouts to determine compliance with this new Order. EEC warned as well that it might fine Little Sprouts for failing to comply with the Order ranging from $50 to $1,000 per infraction, citing to 102 CMR 1.07(3)(b). ("A")
33. Another visit was made to Little Sprouts by EEC staff on June 18, 2007 in response to a complaint EEC had received of staff "screaming at children." EEC staff determined that this complaint was not valid. While there, EEC staff observed regulatory non-compliances. "Three children in the infant/toddler classroom were not accounted for on the attendance logs on the day of the visit," and the June 8, 2007 Order was not posted. A Statement of Outstanding Compliance Issues form was completed referencing these violations. (Ex. 20)
34. On June 28, 2007, EEC took further action against Little Sprouts/Ms. Pease by issuing a Notice of Intent to Suspend License and to Fine. Reference was made to the June 8, 2007 Order, and that this Order had not been fulfilled. Noted was the failure to file "by June 22, 2007, for EEC approval, the name and qualifications of an advisor to oversee the day to day operations of the program," and continuing to employ Michelle Daly as an administrator of Little Sprouts, a person EEC had rejected as qualified. Also noted was the failure of Ms. Pease to post the June 8, 2007 Order based on the visit made by EEC staff on June 18, 2007. EEC further mentioned how EEC had spoken to Ms. Pease on June 21, 2007 when she told EEC she would be contacting EEC on June 25, 2007 about "a possible sale of Little Sprouts." She never made that call. EEC now ordered the fining of Little Sprouts, as of July 2, 2007, "at the rate of $500 per day" for its continuing regulatory violations of the October 2007 and June 2007 Sanctions Orders pursuant to EEC's authority under 102 CMR 1.07(3)(b). EEC did offer at the same time, to stay the fine "if Little Sprouts submits to EEC in writing by close of business on Friday, June 29, 2007, a detailed Plan for Closing." The letter explained in detail what the Plan needed to contain, and highlighted that no time extension on the submission would be granted. (Ex. 21)
35. Ms. Pease's counsel responded to EEC by letter of July 2, 2007, explaining that she had too little time to prepare a Closing Plan by the required deadline. She noted that she had never heard back from EEC regarding candidate Kathleen Murphy as an acceptable interim Director although her name was submitted in early May. (Ex. 22) Nevertheless, Ms. Pease was now proposing the hire of Ms. Murphy as Director to start this week, to oversee day to day operations to ensure that Little Sprouts is in full compliance with all EEC regulations and policies and
are updated and followed … make sure that the program is in full compliance with all EEC sanctions … supervision of staff, safety of children and ensuring proper reporting of abuse and neglect .… She will be allowed full authority to make and implement decisions …. Ms. Pease will be laying off Michelle Daly. (Ex. 22)
This proposal had Ms. Pease performing "non-teaching duties such as Food Program Coordinator, [handling] financial aspects, and [covering] staff breaks." The proposal noted that Little Sprouts would be securing "a Purchase and Sales Agreement from a prospective buyer … already … in negotiations … and that this buyer has already spoken to her bank regarding financing." Ms. Pease could not provide EEC with a definite sale date, but would provide this information to EEC as soon as it was known. For this reason, Ms. Pease sought some flexibility with the July 20th closing date. The proposal further acknowledged that the parents would receive "at least three weeks" notice before such a sale occurred. This new owner would want to be operating child care as well and would give the existing parents priority in enrolling. (Ex. 22)
36. On July 5, 2007, EEC issued an Order to Protect Children: Notice of Emergency Suspension and Notice of Fine. EEC noted how no acceptable Closing Plan had been done by June 29th, and noted the July 2, 2007 letter did not provide an acceptable Closing Plan. EEC noted that Ms. Murphy had never been presented formally to EEC as a full-time Director and had only been discussed as a part-time consultant for Little Sprouts while a full time Director candidate was found. EEC noted that Ms. Murphy is not qualified as a Lead Teacher, and is not qualified with the required Director II status. EEC further noted that Ms. Daly was never found qualified yet continued working at Little Sprouts, only proposed to be laid off if Ms. Murphy was going to take her place. The issue of the prospective buyer of Little Sprouts was noted by EEC not to be credible. Moreover, EEC warned:
To expect a sale to occur and then to assume that that new owner will automatically become licensed by EEC is just not feasible … a license is not transferable, an assumption cannot be made that a new license can be obtained without any problem or delay. (Ex. 1)
EEC further found the proposal that the program would be closed for about a week to allow for repairs and renovations before a new owner commenced child care operations not to be feasible so that the plan for covering children when Little Sprouts closed was inadequate.
Little Sprouts could not allow children receiving EEC vouchers to be without care and would have to secure care for all voucher children while the program was closed. To allow these children to be without care would be a violation of its obligations under its voucher agreement … would subject Little Sprouts to the withholding of payments to Little Sprouts. (Ex. 1)
EEC made clear that Little Sprouts had to post this Order immediately and inform parents that the last day of operation would be July 20, 2007. EEC provided Ms. Pease with further rights to appeal both the new Order and the fine being imposed. (Ex. 1)
37. The regulatory violations to support the Emergency Suspension included: 102 CMR 1.07(4) regarding the failure to adequately address the need for a qualified Director; 102 CMR 7.20 for poor judgment when administering the program along with "blatant disregard for EEC regulatory requirements" which had "jeopardized the children's safety;" and, 102 CMR 1.07(5)(a) for having "innumerable chances to comply with all the requirements of the 2006 Sanctions Order and the 2007 Revocations/ Sanctions Order," and yet showing she was "incapable of demonstrating actions that instill any type of confidence in her ability to soundly administer Little Sprouts," leaving no course for EEC but to suspend her license immediately. Ms. Pease was ordered to stop operations, return her license to EEC, and notify the parents of this development. She was permitted to seek a stay of the action until July 20, 2007 to help transition the children into other programs. Citing to G.L. c. 28A, §§11 and 13, EEC warned that failure to comply with this Order could result in EEC seeking further legal action in Superior Court as per G.L. c. 28A, §16, along with possibly imposing further fines and seeking imprisonment as per G.L. c. 28A, §15. ("A")
38. By letter of July 11, 2007, Ms. Pease's counsel filed a Notice of Claim for hearing on the Emergency Suspension, along with the request for a stay through July 20, 2007. Ms. Pease defended her actions in response to the Orders she had to comply with. She addressed issues back to the October 2006 Sanctions/Order. In regard to Michelle Daly, Ms. Pease answered that Ms. Daly had worked at Little Sprouts from August 2006 as a toddler teacher, but because she possessed Director II qualifications, she would be left in charge of Little Sprouts when Ms. Pease was away or on vacation or out of the Little Sprouts location for awhile. In regard to the name of Kathleen Murphy, Ms. Pease answered that EEC had been told about her in a May 10, 2007 letter, but that EEC had not asked Ms. Pease to make a formal request for her hire. Ms. Pease's counsel had been out of the office on June 14-15, 2007, so that EEC staff finding the June 2007 Sanctions/Order not posted was due to that reason, and that it was posted by June 18, 2007. Ms. Pease further answered that from November 2006, she has "been in constant contact with EEC … has endeavored to come into full compliance … been so cooperative in implementing changes that on February 7, 2007" EEC informed her "that finding a new director was the only remaining issue." Ms. Pease further answered that Michelle Daly's name had been provided to EEC in advance of EEC's claim of February 7, 2007 that her name had not been submitted in advance. Ms. Pease notes that she should not be held responsible for the time it took EEC to make a decision about Ms. Daly. Ms. Pease contended that Ms. Daly has been fully qualified to be the Director of Little Sprouts, and that from August 2006 Ms. Pease never had any problems with her work. In terms of Ms. Daly's past DSS charges, Ms. Pease answered that until the meeting in January 2007 with EEC, she understood there would be no problem with Ms. Daly's qualifications to be the Director of Little Sprouts. Ms. Pease answered that she feels the true reason for having to face the closure of her program "are serious personality conflicts between EEC staff and Ms. Pease that have led to unprecedented scrutiny of Little Sprouts as well as a lack of cooperation by EEC to approve Ms. Daly as a Director II." (Ex. 2)
39. Some parents with children attending Little Sprouts from the time period in 2006 through its closing, have found the care given their children during this time period to be good, and that its closure has entailed difficulties for them to secure alternative equally as good child care. (Ex. 24. Testimony)
The findings made show a history of Little Sprouts going back to 2005 regarding the child abuse-neglect reporting issue, and then following the June 2006 transportation issue. The transportation issue was a serious matter and resulted in a "51B" supported DSS determination of abuse or neglect of children by Ms. Pease. In addition, the findings show that Ms. Pease had continued to perform as the Little Sprouts Director even after she was aware that she was being investigated for abuse or neglect by DSS which was contrary to her own policies. That is a serious matter. Ms. Pease acknowledged that she suffered staff shortages and poor child to staff ratios for a time period following the June 2006 transportation problem, but finds this should not have been a lingering issue for EEC since she was at full complement by the time the October 2006 Sanctions/Order were issued against Little Sprouts. The issues raised in the Sanctions/Order, led to the imposition of an enrollment freeze. The inadequate staff to child ratios were not mere technical non-compliance matters, but involved concerns by EEC about the quality of decisions Ms. Pease was making about her program. The failure of the Little Sprouts staff and Ms. Pease to fulfill their DSS mandatory reporter duties in a timely way is also why further training was reasonably deemed necessary by EEC. EEC did not move to revoke Ms. Pease's license, and instead, gave her a chance to cure the concerns.
The terms of the Sanctions/Order included hiring an EEC approved and fully qualified Director possessing a Director II status. No matter how hard it was for Ms. Pease to secure such a hire, that was not a basis for finding that requirement not proper or unreasonable. To Ms. Pease, Michelle Daly may have appeared not just qualified but experienced, and a great fit for Little Sprouts, but EEC did not, and EEC requiring that it approve of the hire was not a baseless heavy handed requirement. Moreover, the reasons EEC had for rejecting Ms. Daly were based on "51B" reports about her child care work, and so, were not trivial reasons in light of the kind of matters EEC wanted a new Director of Little Sprouts to pay attention to. Little Sprouts' short past had already involved "51B" reports and a failure to timely report suspected child abuse/neglect. The reasons for rejecting Ms. Daly reached at the core of what EEC found Little Sprouts had to fix. Ms. Pease may have found it hard to pay for and locate a Director for Little Sprouts other than Ms. Daly, but that is no excuse for not satisfying this reasonable requirement. The fact that Ms. Daly had fine job evaluations from a previous employer occurring after she faced the "51B" issues, does not show EEC's rejection of her candidacy was arbitrary or unjustified.
Ms. Pease found it heavy handed of EEC to cite her for further safety issues following the October 2006 Sanctions and Orders. She corrected the conditions found in May 2007, such as to again remove items hanging above areas where children were located within rooms at Little Sprouts. This does not show some vendetta on the part of EEC. If items were detected hanging over children earlier, and for whatever reason not noticed in another area of Little Sprouts, that does not mean the same safety issue found later should have been forgiven and not cited. It is not clear why Ms. Pease would not have figured out that items hanging over the heads of the children would simply not be an acceptable condition at any time in the future. That is an illustration of what EEC argues is Ms. Pease's poor judgment.
In terms of the enrollment freeze, even if the extra child was a staff member's child, that child was no less an extra child that day. Having the staff member's ill child who required her attention created a condition that the enrollment freeze was intended to prevent. It was also another sign of Ms. Pease's poor judgment not to appreciate that mingling an ill child among the healthy other children in attendance was not a good course.
Ms. Pease in her answer to the emergency suspension notes that she did not know that there had been a child in her care for many months whom her staff had concerns might be being abused or neglected. She explained that as soon as she learned about the concerns she reported them to DSS. Ms. Pease reluctantly agreed on the need for further staff training on reporting suspected abuse or neglect of children. She did not own up to the wrong of having that child's situation go unreported for so long to DSS. For EEC to be concerned that this course of events also demonstrates Ms. Pease's poor judgment and poor administrative skills emerges from the record as quite believable and fair. The further issues of the "51B" supported finding of the improper transport of the eighteen children to the swimming lessons cannot be overlooked because Ms. Pease in hindsight realized she should not have done that. The same poor judgment is shown in operating child care with full knowledge that the staff to child ratio was not sufficient.
Another obvious example of Ms. Pease's poor judgment was in her continuing reliance upon Michelle Daly as the new Director after knowing that EEC found Ms. Daly to be unqualified to run Little Sprouts in light of her DSS "51B" report history. Ms. Pease simply kept her on at Little Sprouts including leaving her in charge when she left for vacation in May 2007, long after she was aware that EEC found Ms. Daly unfit to function as Little Sprouts' Director. Her excuse that having her cover for just a vacation time period or for times she was not at Little Sprouts as somehow not what EEC was concerned about, again shows her poor judgment.
The non-compliances found by EEC staff after the June 2007 visit such as the conditions on the porch and in the outside playground area, might not of themselves have been enough to close down Ms. Pease's child care, but in light of the Sanctions and Orders she was under then, they are further evidence of her lack of sound judgment and of her inability to run Little Sprouts safely and in compliance at all times with EEC regulatory provisions.
The findings demonstrate not only the deficiencies of Ms. Pease's operations of Little Sprout, but also that the course she took to keep Little Sprouts running anyway involved risks to the children attending Little Sprouts. She was not forced to continue to operate Little Sprouts if she could not do so in full compliance with EEC regulations.
Ms. Pease appeared to be continually trying to put off EEC's oversight of her program, and seemed to simply react to issues found by EEC rather than to try to avoid the problems in the first instance. EEC understandably became very concerned and convinced that Ms. Pease would only comply with even safety issues if EEC was continually pointing out conditions that violated EEC regulations. She was not being "picked on" by EEC. EEC staff were not continuing to cite faults in her operation of Little Sprout because of personality disputes with her as she has contended.
Whether or not Ms. Pease lacked sufficient funds to hire the kind of staff she needed to operate child care in compliance with EEC regulations, or whether she had the necessary funds but could not locate suitable candidates for Director due to shortages of suitable candidates in western MA, does not matter. If that meant she could not operate her child care program so be it. By the time the Order of Emergency Suspension issued, Ms. Pease was rightly found by EEC not to be able to run Little Sprouts any longer. The regulations that permit someone to operate child care do not allow for violations of those regulations at any time when operating child care.
Ms. Pease continued to put delays and non-compliances before EEC, including Kathleen Murphy. She was not proposed as a full time Director job candidate to be the Director of Little Sprouts. She lacked the Director II needed status. Also, Ms. Daly was not going to somehow finally be approved by EEC as Little Sprouts Director. Ms. Pease knew or should have known that.
The findings made demonstrate significant regulatory violations occurring with Little Sprouts from October 2006 through the close of Little Sprouts. For all these reasons, EEC has met its burden of proof and shown there is reasonable cause to believe there is an emergency situation at Little Sprouts to support its emergency suspension immediately. This emergency situation endangers the lives, health, and/or safety of the children in care there. I recommend that EEC uphold the emergency suspension under 102 CMR 1.07(5). There is also sufficient evidence shown to support the revocation of Ms. Pease's EEC license.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Sarah H. Luick, Esq.
Administrative Magistrate
DATED: 3/12/08
