| Date: | 10/21/2008 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | OC-08-467 |
On July 7, 2008, the Petitioner, Department of Early Education and Care ("EEC"), issued an Order to Protect Children: Notice of Emergency Suspension with respect to the Respondent, Small World Learning Center ("Small World"), and its licensee, Albert DeCristoforo. Mr. DeCristoforo filed a Notice of Claim for an adjudicatory hearing on July 10, 2008.
I held a hearing on the Emergency Suspension on August 4th and August 5, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston. I admitted documents into evidence. (Exs. 1 - 25) I marked "A" for identification a letter of June 11, 2008 from Rosemary Walker DeCristoforo to EEC; "B" for identification notes of a telephone conversation between Rosemary Walker DeCristoforo and Thomas Marino of EEC; and "C" for identification a copy of G. L. c. 6, s. 178.
EEC presented the testimony of Richmond Dawson, the Small World EEC Licensor; Beth Dillon, EEC Group and School-Aged Child Care Supervisor; and Thomas Marino, Associate Commissioner of EEC for the Northeast Region.
Testifying on behalf of Small World were Jessica Martel, former cook at Small World; Albert DeCristoforo, licensee of Small World; and Paul DeCristoforo, Small World's cook, janitor and co-owner.
1. Small World Learning Center ("Small World") is a group child care center licensed by EEC to provide care for 67 children: nine infants; 18 toddlers; and 40 pre-school aged children. It has been licensed since 1987. (Exs. 3, Testimony, Dillon)
2. Small World's owner and licensee is Albert DeCristoforo ("Albert") who holds group child care license #8119441 that expires on January 17, 2010. (Exs.1, 7)
3. Paul DeCristoforo ("Paul") is Albert's son. Paul is Small World's cook, janitor and co-owner. (Ex. 3)
Complaint of May 7, 2008
4. On May 7, 2008, EEC received a complaint alleging that a Small World staff person was verbally and physically intimidated by Paul in front of staff and children when the staff member refused to have the children line up for dessert at Paul's request. Paul is alleged to have yelled loudly at the staff person and followed her yelling when she tried to walk away. (Ex. 3)
5. EEC licensor Richmond Dawson made three unannounced visits to Small World on May 12, May 21 and May 27, 2008 as a result of this complaint. Mr. Dawson interviewed staff members, including Paul and the staff member he was accused of yelling at. He also reviewed staff files, the policy on staff conduct and staffing patterns. (Ex. 3)
6. Staff told Mr. Dawson that they felt helpless when Paul acted in this way because "he is the owner's son and he will threaten your job." The director, Shannon Cyr, indicated that she did not take disciplinary action because it would do no good; Paul could not be fired because he is the owner's son.
(Ex. 3)
7. Mr. Dawson concluded that there was sufficient information to support the fact that two staff members engaged in a verbal altercation in front of children that did not promote the children's emotional well being. (Ex. 3)
8. On June 4, 2008, Mr. Dawson issued an Investigation Report that included a Statement of Compliance Issues. He cited Small World for violations of regulations 102 CMR 7.05 and 7.06, for failure to soundly administer the program, and failure of the director to take disciplinary action in accordance with Small World's policy on threatening and intimidating behavior; violation of 102 CMR 7.22 (4), for allowing Paul, who is not teacher qualified, to supervise children without a teacher present; and violation of 102 CMR 7.24, for failing to provide for the emotional needs of the children by allowing a loud verbal altercation between staff members to occur in front of the children. (Ex. 3)
9. Mr. Dawson asked Ms. Cyr to provide a specific plan to address the issues raised in his report and submit the completed form to Mr. Dawson. Ms. Cyr did not submit a corrective action plan. (Testimony, Dawson)
Complaint of May 22, 2008
10. On May 22, 2008, EEC received a complaint that Paul arrived at the program and began yelling at a staff member. The staff member asked Paul to speak with the director. Ms. Cyr entered the room, and Paul began yelling and screaming at her, while 18 or 20 preschool aged children witnessed this interaction. (Ex. 4)
11. Mr. Dawson, in the company of licensor Tim Donohue, made an unannounced visit to the program on May 27, 2008 to interview Paul. On May 30, 2008 they made another unannounced visit to the program, to interview other staff members. During a telephone conversation with Ms. Cyr on May 22, 2008, Ms. Cyr indicated that she was leaving her employment with the program on that day. (Ex. 4)
12. Mr. Dawson concluded that a yelling confrontation had indeed occurred between Paul and a staff member, and between Paul and Ms. Cyr, in front of the children. (Ex. 4)
13. Mr. Dawson issued an Investigation Report dated June 4, 2008 that included a Statement of Compliance Issues. He cited Small World for violation of 102 CMR 7.24 because the licensee did not provide for the emotional well-being of the children by allowing verbal altercations to occur in front of them; violation of 102 CMR 7.20 for failing to soundly administer the program by failing to formally discipline the staff involved in the altercations; violation of 102 CMR 7.22 (1) (b) for failing to supervise two children; violation of 102 CMR 7.11 because the cook was observed preparing meals without wearing latex gloves; violation of 102 CMR 7.23 (6) by stacking chairs so that toddlers could reach the tables at meal times; and violation of 102 CMR 7.25 because the fire alarm system was not fully installed or inspected. (Ex. 4)
14. The new director, Sharon Lowe, was asked to address the issues and submit a corrective action plan to the licensor within 14 days. Ms. Lowe did not submit a corrective action plan. (Testimony, Dawson)
Complaint of June 6, 2008
15. On June 6, 2008, EEC received an anonymous complaint that on May 28, 2008 the kitchen staff prepared hot dogs for lunch, and those hot dogs were re-boiled and served again on June 4, 2008. The complainant also said that one afternoon there was present one preschool teacher with 7 toddlers and 6 preschoolers. (Ex. 5)
16. Mr. Dawson made an unannounced visit to the program on June 12, 2008 where he interviewed staff; reviewed the files of both children and staff; cross referenced employee time cards with child attendance; performed a general inspection of the facility, both indoors and outdoors; reviewed the program health care policy; and performed an attendance check of each classroom.
(Ex. 5)
17. Mr. Dawson issued an Investigative Report on June 13, 2008, finding, among other things, that the program had had seven directors over the previous two years; the program had not been maintaining proper staff to children ratios; the licensee, director and staff failed to ensure that the program's health care policy relative to allergies and medication storage was being adhered to; a staff person had been assigned to work as a teacher without verification of her teacher qualification; the director, who is required to be 100% nonteaching, was being used regularly to cover in the classrooms; the program was over-enrolled in the infant room; and on June 13, 2008 Mr. Dawson had delivered an enrollment freeze, in hand, to Mr. DeCristoforo. (Ex. 5)
18. Mr. Dawson's report of June 13, 2008 contained a Statement of Compliance Issues. He cited Small World for, among others, violations of 102 CMR 7.08 because one staff person's file did not contain documentation that she was qualified as a teacher; violation of 102 CMR 7.05 because one child's Epi-Pen was not stored properly and its location was not known to staff; violation of 102 CMR 7.05 because the program's health care policy relative to allergies was not being adhered to; violation of 102 CMR 7.05 because a staff member's purse was left accessible to children; violation of 102 CMR 7.21 because the staff member whose qualifications as a teacher were not in her file was allowed to supervise groups of children; violation of 102 CMR 7.22 for failure to adhere to child-staff ratios; violation of 102 CMR 7.20 for failure to soundly administer the program; violation of 102 CMR 7.25 for failure to ensure children's safety because the Epi-Pen was not properly stored, an infant was sleeping in a swing, three infant cribs contained stuffed animals, and there were active bee nests in the outdoor play yard. (Ex. 5)
19. Mr. Dawson requested that Albert provide a specific plan to address the issues raised in his report and submit the completed form to him. Albert did not submit a corrective action plan. (Testimony, Dawson)
Monitoring visits of June 13 and June 16, 2008
20. Mr. Dawson made monitoring visits to Small World on June 13 and June 16, 2008 during which he interviewed the director and staff, reviewed staff and children's records, inspected the facility and delivered a letter from Associate Commissioner Thomas W. Marino freezing enrollment. (Exs. 7, 22)
21. On June 13, 2008, Sharon Lowe, the director, informed Mr. Dawson that June 13, 2008 would be her last day at the program. (Ex. 7)
22. Mr. Dawson completed a Visit Narrative on June 16, 2008 that included a Statement of Non-Compliance. He cited Small World for violation of 102 CMR 7.01, 7.06, and 7.08 for failure to soundly administer the program by hiring and assigning a staff person to care for children without completing a background record check of the person; violation of 102 CMR 7.05 because an Epi-Pen was not returned to a child's parents when the child left the program; because there was an expired Epi-Pen on hand for a child enrolled in the program; and because a medication known as Adderall was improperly stored in the refrigerator; violation of 102 CMR 7.08 for failure to have staff personnel records for four staff; and because five staff files did not contain evidence of first aid training; violation of 102 CMR 7.21 because a staff member was assigned to supervise and care for a group of children without documentation that she had teacher qualifications; and 102 CMR 7.22 because children were left unsupervised from the entry door to the restrooms and while using the facilities. (Ex. 7)
23. Albert was asked to address the issues and submit a corrective action plan to the licensor. Albert did not submit a corrective action plan. (Testimony, Dawson)
Enforcement meeting of June 17, 2008
24. By letter of June 13, 2008, Mr. Marino invited Albert, Paul and the program director to an enforcement meeting that took place at Mr. Marino's office on June 17, 2008. Present were Mr. Marino, Beth Dillon, Group and School-Aged Child Care Supervisor, Richmond Dawson and both Albert and Paul DeCristoforo. The purpose of the meeting was to allow Albert and Paul to voice their concerns, and for Mr. Marino to assess the situation. (Testimony, Marino; Ex. 22)
25. Mr. Marino believed that Albert was not receptive, would not take responsibility for conditions at the program, and blamed his employees and the children for the problems. Mr. Marino formed the opinion that Albert was not attentive, and he noted that Paul was texting and also raised his voice during the meeting. Mr. Marino ended the meeting and consulted the legal department. (Testimony, Marino)
26. After consulting with the legal department, Mr. Marino decided to issue a Notice of Sanctions prior to taking the step of an emergency suspension. (Testimony, Marino)
Monitoring visit of June 20, 2008
27. On June 20, 2008, Ms. Dillon made a monitoring visit to Small World. She interviewed Albert and staff, reviewed the staff and children's records, inspected the facility and observed daily activities. (Ex. 18)
28. Ms. Dillon's Visit Narrative included a Statement of Non-Compliance. She cited the program for violation of 102 CMR 1.05 for assigning a staff person to work with children prior to completing an EEC background record check; violation of 102 CMR 1.07 for placing children at risk due to the chronically poor compliance of the program; violation of 102 CMR 7.01 for failing to maintain a quality level that promotes a safe environment for children; violation of 102 CMR 7.05 for continuing to fail to store properly and identify Epi-Pens; violation of 102 CMR 7.06 for failing to soundly administer the program; violation of 102 CMR 1.05 because no person at the program was approved as a background record check reviewer for the owner; and violation of 102 CMR 7.09 for failing to remove the "Now Enrolling" sign after EEC issued an enrollment freeze on June 13, 2008. (Ex. 18)
Monitoring visit of June 23, 2008
29. On June 23, 2008, Ms. Dillon made a monitoring visit to Small World. She interviewed Albert and staff, reviewed staff and children's records, inspected the facility and observed the daily activities, and put together a staff schedule. (Ex. 19)
30. Ms. Dillon's Visit Narrative noted that Albert failed to submit to EEC a staff schedule for the week of June 23, 2008, as he was directed to do at the enforcement meeting of June 17, 2008. Albert only submitted staff schedules for June 26th and 27th. By putting together a staff schedule, Ms. Dillon became aware that the program had insufficient staffing at the beginning and end of each day. She determined that the program could only be open from 7:30 a.m. to 5:30 p.m. (Ex. 19)
31. Ms. Dillon's Visit Narrative contained a Statement of Non-Compliance. She cited Small World for violation of 102 CMR 1.05 because the owner failed to ensure compliance with the EEC background record check review process; violation of 102 CMR 7.22 because the owners failed to ensure compliance with the staff and child ratios which resulted in the immediate adjustment of the hours of operation to ensure compliance; violation of 102 CMR 7.08 because of the failure of the owners to ensure that at least one staff person with current CPR certification was present when children were present; and violation of 102 CMR 7.24 because these situations place children at risk. (Ex. 19)
32. Albert was asked to submit a correction plan. He did not file a correction plan. (Testimony, Dillon)
Letter of June 24, 2008
33. On June 24, 2008, Mr. Marino hand-delivered to Albert a letter ordering him to "immediately adjust your hours of operation to reflect your staffing to assure that a staff person with current certification in CPR is on site during all hours of operation." The letter also ordered Albert to submit to EEC no later than 12 noon on June 25, 2008 a schedule that "reflects hours of operation that clearly shows staff coverage meeting qualifications for each classroom/age group." Mr. Marino agreed to allow the program to function temporarily without a director, as long as Albert was actively advertising for a director. (Ex. 23)
34. Albert did not look at the letter that Mr. Marino handed to him. When Mr. Marino left, Albert had still not looked at the letter. (Testimony, Marino)
Complaint and visit of June 26, 2008
35. On the morning of June 26, 2008, EEC received several phone calls from parents alleging that on that morning there was one teacher with 5 infants and 20 preschoolers and toddlers. The parents reported that Albert was present, but he was not helping the teacher. The parents reported that other parents were trying to assist the teacher with the children because the situation was unsafe. (Ex. 20)
36. An unannounced investigation was conducted by Ms. Dillon and Mr. Dawson on that day. In the afternoon, EEC licensors Tim Donohue, Dan Hoyt, Karen Gale and Associate Commissioner Marino were called in. (Ex. 20)
37. Ms. Dillon's Investigative Report of July 2, 2008 describes in detail the chaos at Small World on June 26, 2008. EEC licensing staff had to intervene and run the program as a result of the emergency situation created by the lack of staff present on that day. (Ex. 20)
38. Ms. Dillon's report contained a Statement of Compliance Issues. She cited Small World for violation of 102 CMR 7.24 for failing to provide for the physical and emotional needs of the children when they were left with insufficient staff, unqualified staff, and staff who did not have a completed background record check which put children at the immediate risk of harm that day; violation of 102 CMR 7.05 for failing to ensure that staff adhered to regulations regarding the administration, authorization, storage and documentation of medication that put children at risk of harm; violation of 102 CMR 7.08 for failing to have at least one staff member currently certified in CPR available whenever children were present; violation of 102 CMR 7.06 for failing to soundly administer the program and placing the children at risk by failure to manage the program within regulatory requirements; violation of 102 CMR 7.06 and 7.22 for creating a hostile and unsupportive work environment for the staff by leaving staff in positions where they have been seriously understaffed which placed the staff at risk; violation of 102 CMR 7.22 for leaving one teacher alone for 1.5 hours with as many as 20 children, including 5 infants while Albert did not intervene with the children; and repeatedly assigning assistant teachers to groups of children; violation of 102 CMR 1.05 for repeatedly assigning a staff person who had not undergone a background record check to groups of children; and violation of 102 CMR 1.07 for creating an emergency situation on June 26, 2008 by serious staffing violations, requiring EEC staff to intervene and run the program that day. (Ex. 20)
39. Albert was informed that legal action was pending. (Ex. 20)
June 26, 2008 letter to parents
40. On June 26, 2008, Ms. Dillon informed Mr. Marino of the events at Small World. Mr. Marino concluded that child safety was at risk because EEC staff had to feed children and change diapers. He directed his staff to work with Albert to work out a staff schedule for the next day, and to direct Albert to call parents to come and pick up their children. (Testimony, Marino)
41. Mr. Marino drafted a letter to parents on June 26, 2008, and arrived at the program at 3 p.m. to distribute the letter to let parents know about the enrollment freeze and the possibility of legal sanctions. (Ex. 24)
Monitoring visit of June 27, 2008
42. On June 27, 2008, Ms. Dillon, Mr. Dawson and Mr. Donohue made an unannounced monitoring visit to Small World. (Ex. 20)
43. On June 26, 2008, EEC licensing staff had worked with Albert to reduce hours of operation due to a lack of qualified staff. The infant room was to be open 7 a.m. to 3:30 p.m., the toddler room from 7 a.m. to 4 p.m., and the preschool room from 9:45 a.m. to 3 p.m. (Ex. 20)
44. On June 27, 2008, a preschool child was allowed into the program prior to 9:45 a.m. (Ex. 20)
45. On June 27, 2008, Albert continued to assign assistant teachers to groups of children with no qualified teacher present. He assigned one staff member who had not had a background record check to be in the classroom every day since being hired on June 16, 2008 up to and including June 27, 2008. (Ex. 20)
Monitoring visit of June 30, 2008
46. On June 30, 2008, Mr. Dawson and licensor Dan Hoyt made a monitoring visit to Small World. They interviewed Albert and staff, inspected the facility and observed daily activities. (Ex. 8)
47. The licensors noted that the program opened at 7 a.m. without a staff person qualified in CPR on site. On June 27, 2008, the program operated beyond the agreed-upon 3 p.m. closing time for the preschool room. Paul told a parent who said he could not pick his child up by 3 p.m. that Paul would take some children to the mall to address the situation. EEC staff instructed Paul that he was not qualified to be alone with children, and he did not have written permission from parents to take children off site. (Ex. 8)
48. The licensors learned that Paul told one staff member that she was "mentally deranged." Paul told the staff member that an EEC licensor had said the staff member was deranged. EEC staff never made any comment about the staff person. (Ex. 8)
49. The licensors noted that Albert failed to post the new hours of operation, and failed to remove the "Now Enrolling" sign after the enrollment freeze of June 13, 2008. (Ex. 8)
50. Mr. Dawson's Visit Narrative of June 30, 2008 included a Statement of Non-Compliance. He cited Small World for violation of 102 CMR 7.20, 7.21, and 7.22 for failing to soundly administer the program; violation of 102 CMR 7.08 for putting children at risk by allowing a child into the program without a CPR qualified staff member on site; and for violation of 102 CMR 7.20 for failing to have a qualified administrator on site since the previous administrator left on June 13, 2008. (Ex. 8)
51. Albert did not submit a plan for corrective action as was requested. (Testimony, Dawson)
Follow-up visit of July 1, 2008
52. On July 1, 2008, Mr. Dawson, Mr. Hoyt and Mr. Marino made a follow-up visit to Small World at 4 p.m. in order to hand-deliver to Albert notice of legal sanctions issued by EEC against the program. (Ex. 9)
53. When they got to the program, Mr. Dawson noted that two preschool aged children were still in care after the 3 p.m. closing time agreed upon by Albert and EEC for the preschool room. Two preschool aged children were being cared for by a staff member who was not preschool teacher certified. Albert did not ensure that a CPR certified person was on site while the children were present at 4 p.m., and there was not a CPR certified person on site during the first 1 - 1 ½ hours the program was open during the morning. (Ex. 9)
54. Mr. Dawson's Visit Narrative of July 2, 2008 included a Statement of Non-Compliance. Mr. Dawson cited Small World for violation of 102 CMR 7.08 for failing to have a CPR certified person on site at the beginning and end of the day; and for violation of 102 CMR 7.21 for failing to ensure that the program was staffed by appropriately qualified persons. (Ex. 9)
July 1, 2008 Notice of Sanctions
55. Mr. Marino hand-delivered the Notice of Sanctions to Albert on July 1, 2008. The sanctions provided that the enrollment was to remain frozen; Albert and Paul were prohibited from having any responsibility for the program's day-to-day operation and administration; the program was required to hire a new director; all children in the program had to be 15 months or older; all program employees were required to attend a Safe Sleep Training; the program was required to hire a child care consultant; the program was required to maintain appropriate staffing ratios and to provide EEC with a weekly staffing schedule; the program was required to provide, conduct and arrange for staff training; the program was required to inform EEC of any staffing changes; the program was required to review and ensure policy compliance with EEC regulations; the program was required to review children's records and ensure they were in compliance with EEC regulations; the program was directed to notify parents and employees about the sanction order and schedule a meeting for parents in order to address the order and EEC's compliance concerns; and the program was directed to submit corrective actions plans to address all outstanding regulatory non-compliances. (Ex. 10)
56. In the cover letter accompanying the Notice of Sanctions, Albert was directed to post the Order in a place easily viewed by parents, visitors and employees and to provide a copy of the Order to all current parents. (Ex. 10)
57. The Notice of Sanctions notified Albert that if he failed to comply with the order or with any EEC regulations, "EEC may revoke, suspend, refuse to renew the Program's license, make such license probationary, or impose any other sanctions EEC deems appropriate," citing 102 CMR 1.07 (3), (4) and (5) and G. L. c. 28, s. 13. (Ex. 10)
Monitoring visit of July 2, 2008
58. Mr. Dawson and Ms. Dillon made a monitoring visit to Small World on July 2, 2008 to evaluate the program's compliance with the Notice of Sanctions. They interviewed Albert and staff, inspected the facility and observed daily activities. They conducted an exit interview with Albert. (Ex. 11)
59. Mr. Dawson and Ms. Dillon noted that a Department of Social Services (DSS) investigator was present, speaking with Albert, so they went out into the program to evaluate compliance. (Ex. 11)
60. Mr. Dawson and Ms. Dillon noted that the infant room teacher reported that during her interview with DSS, Albert stood in the hallway and yelled out repeatedly that she was liar. This was confirmed by the DSS investigator. (Ex. 11)
61. They noted that there was an 11 month old child present, although the Notice of Sanctions prohibited care of any child under the age of 15 months. The Notice of Sanctions was not posted. Staff was unaware of the EEC sanctions and had not been given a copy. Albert was acting as administrator on July 2, 2008, and he had not named a director qualified person. There were six EEC reports for which Albert had not submitted plans for corrective action.
(Ex. 11)
62. Ms. Dillon's Visit Narrative included a Statement of Non-Compliance citing Small World for violation of 102 CMR 1.02 (4) (a) 1 for failure to comply with the EEC Notice of Sanctions issued on July 1, 2008. (Ex. 11)
Monitoring visit of July 3, 2008
63. On July 3, 2008 Mr. Dawson and Mr. Donohue made a monitoring visit to Small World and interviewed staff, reviewed compliance with the Notice of Sanctions, inspected the facility and observed daily activities. Neither Albert nor Paul was present on site. (Ex. 12)
64. The Visit Narrative noted that there were four staff on site with two children because parents were disenrolling their children. Staff and parents had not been provided with the Notice of Sanctions, but a copy had been posted in the vestibule. Albert had not removed the "Now Enrolling" sign in front of the building. A director qualified person had not been assigned to oversee the program. (Ex. 12)
65. The Visit Narrative included a Statement of Non-compliance citing Small World for violation of 102 CMR 1.07 (3) for failing to comply with the Notice of Sanctions. (Ex. 12)
Monitoring visit of July 7, 2008
66. Mr. Dawson, Mr. Donohue and Mr. Marino visited Small World on July 7, 2008 to hand deliver a Notice of Emergency Suspension of the program's license for "failure to comply with EEC sanctions imposed by a legal order issued on July 1, 2008 and you have created an emergency situation that endangers the health and safety of children." (Ex. 1)
67. Albert filed a Notice of Claim for an adjudicatory hearing. (Ex. 2)
Monitoring visit of July 8, 2008
68. Mr. Dawson and Mr. Donohue visited Small World on July 8, 2008 to be certain that the owners were complying with the emergency suspension. They were on site from 7:50 to 9:30 a.m. and did not observe any activity inside or outside the building. There were no cars in the parking lot, and no lights were on inside the facility. No one entered or exited the facility. (Ex. 14)
The Department of Early Education and Care has demonstrated that it had reasonable cause to believe that the failure of Small World Learning Center, and Albert DeCristoforo, its licensee, to comply with applicable EEC regulations resulted in an emergency situation that endangered the life, health or safety of children in care, under 102 CMR 1.07 (5) (a).
Albert DeCristoforo failed to comply with the terms of the July 1, 2008 Notice of Sanctions. The sanctions required that the program not care for any children under the age of 15 months. On July 2, 2008, there was an 11 month old child in care.
The Notice of Sanctions required that the order be posted, and that a copy of the order be provided to all current parents. On July 2, 2008, the order was not posted and the employees were unaware of the sanctions.
The Notice of Sanctions required that Albert and Paul not have any responsibility for the day-to-day operation and administration of the program. On July 2, 2008, Albert was acting as administrator.
The Notice of Sanctions required that Albert hire a new director qualified person. On July 2, 2008 no director qualified person had been hired.
The Notice of Sanctions required that Albert file corrective action plans for all of the outstanding regulatory violations cited in the previous visits. On July 2, 2008, Albert had not filed any corrective action plans.
The situation did not improve on July 3, 2008. Parents had not been provided with a copy of the Notice of Sanctions. A director qualified person had not been hired. Albert failed, once again, to remove the "Now Enrolling" sign in the front of the building that he had been directed to remove on June 13, 2008 when his enrollment was frozen.
Albert's failure to comply with the Notice of Sanctions supports the EEC's suspension of Small World's license under 102 CMR 1.07 (4) (a) 1. The many regulatory violations enumerated in the visits to Small World by EEC staff between May and July 2008 created a situation in which the life, health and safety of children were endangered. The program was constantly out of compliance with child-staff ratios so that its hours of operation had to be curtailed. There were staff members caring for children who had not had EEC background record checks. The program mishandled several Epi-Pens, one of which was stored in a place of which staff was unaware. The program did not have a person certified in CPR on site at all times when children were present. There were staff members who were assigned to supervise and care for groups of children without certification that they had teacher qualifications. Children were left unsupervised on occasion. All of these regulatory violations placed children at risk.
EEC sought to engage Albert in coming into compliance with EEC regulations with Statements of Non-Compliance and with an enforcement meeting on June 17, 2008. Albert did not file any plans for corrective action in response to the Statements of Non-Compliance, and he was inattentive at the enforcement meeting.
On June 24, 2008, Albert was directed to curtail immediately the program's hours of operation to come into compliance with the staff-children ratios. Two days later, on June 26, 2008, the program was in chaos because there was one infant teacher present with 5 infants and 20 toddler and preschoolers. Albert did not help the teacher. Were it not for the intervention of parents, and of EEC staff who took over and ran the program for the day, a major tragedy might have occurred.
As a result of the chaos on June 26, 2008, Albert was instructed to work out a staff schedule for the next day that would comply with the staff-children ratios. EEC staff worked with Albert and they agreed that the infant room would be open from 7 a.m. to 3:30 p.m., the toddler room from 7 a.m. to 4 p.m., and the preschool room from 9:45 a.m. to 3 p.m. But on June 27, 2008, EEC staff found that a preschool child had been admitted prior to 9:45 a.m. Albert continued to assign assistant teachers to groups of children with no qualified teachers present, and he assigned a staff member who had not had a background record check to be in the classroom every day from June 16 through June 27, 2008.
On June 30, 2008, the program opened at 7 a.m. without a staff member certified in CPR on site. The pre-school room operated beyond the 3 p.m. closing time. Paul, who is not qualified as a teacher and is not qualified to be alone with children or to take them off-site without parental permission, volunteered to take children to the mall after 3 p.m. to avoid the 3 p.m. closing time. The "Now Enrolling" sign was still in evidence, despite the enrollment freeze of June 13, 2008.
On July 1, 2008 EEC issued its Notice of Sanctions. Failure to comply with the Notice of Sanctions resulted in this emergency suspension. The owners have brought this situation upon themselves through their stunning recalcitrance.
I recommend that the Emergency Suspension be upheld because EEC had reasonable cause to believe that the licensee's failure to comply with many applicable regulations resulted in an emergency situation which endangered the life, health or safety of children.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Maria A. Imparato
Administrative Magistrate
DATED: 10/21/08
