Celeste Learning Center v. DHS ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Celeste Learning Center, :
Petitioner :
:
v. : No. 518 C.D. 2020
: Submitted: September 20, 2021
Department of Human Services, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge (P.)
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE BROBSON FILED: December 20, 2021
Celeste Mendez d/b/a Celeste Learning Center (Center) petitions for review
of an order of the Chief Administrative Law Judge of the Department of Human
Services (DHS), Bureau of Hearings and Appeals (BHA), dated May 7, 2020, which
adopted the recommendation of an Administrative Law Judge (ALJ), thereby
denying the Center’s appeal. The ALJ concluded that DHS properly revoked the
Center’s first provisional certificate of compliance (provisional certificate) to
operate a child care center based upon violations of the Human Services Code
(Code)1 and DHS’s child care regulations. For the reasons that follow, we affirm.
1
Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §§ 101-1503.
I. BACKGROUND
The Center is a child care center located in Allentown, Pennsylvania.2 DHS
conducted inspections at the Center in September 2018 and again on various
occasions in November and December 2018. DHS cited the Center for several
regulatory violations that included improperly staffed mixed-age levels (i.e., not
maintaining proper staff-to-child ratios) and improper supervision of children. As a
result of the violations, DHS revoked the Center’s regular certificate of compliance
in February 2019 and issued a provisional certificate that was effective from
January 18, 2019, to July 18, 2019. The Center did not appeal the decision.
DHS next conducted inspections at the Center on April 24, 2019, and
May 2, 2019, and identified, in relevant part, violations for improperly staffed
mixed-age levels, child and adult hygiene, and supervision of children. DHS issued
a notice, revoking the Center’s provisional certificate on June 21, 2019, for failure
to comply with the Code and violating three DHS regulations;3 failure to comply
with the acceptable plan to correct noncompliance items; and gross incompetence,
negligence, or misconduct in operating the facility.
2
“Child care center” is defined as “any premises operated for profit in which child care is
provided simultaneously for seven or more children who are not relatives of the operator, except
such centers operated under social service auspices.” Section 1001 of the Code, 62 P.S. § 1001.
3
DHS cited a total of eight regulatory violations as a result of the inspections on
April 24, 2019, and May 2, 2019. (Analysis and Conclusion (AC) at 10 n.3; Certified Record
(C.R.) at 124.) Specifically, DHS cited the Center for (1) two violations relating to mixed-age
levels; (2) two violations relating to rest equipment; (3) one violation relating to child
hygiene; (4) one violation relating to adult hygiene; and (5) two violations relating to supervision
of children. DHS, for purposes of showing the Center’s history of repeated regulatory
noncompliance, also referenced six regulatory violations that occurred after inspections in
November 2018: (1) three violations relating to mixed-age levels; and (2) three violations relating
to supervision of children. (AC at 10 n.2; C.R. at 124.) The ALJ excluded the November 2018
violations as a basis for DHS’s revocation of the provisional certificate. (Id.)
2
The Center appealed DHS’s revocation of its provisional certificate in
July 2019, and the Center’s attorney, in a letter accompanying the appeal, stated that
the Center “fully understands the seriousness of the aforesaid violations and
understands that DHS may revoke a license for a single regulatory violation.” (C.R.
at 13.) Further, the Center’s attorney represented that the Center “is not denying the
allegations but is, and has been, taking immediate steps to bring any problems into
compliance.” (Id.) The Center’s attorney further noted that “in this case no harm
came to any child.”4 (Id.)
The ALJ held a hearing in November 2019, and DHS’s sole witness was
Office of Child Development and Early Learning (OCDEL) Certification
Representative Matthew Spencer. Mr. Spencer testified about his duties as a DHS
Certification Representative and the types of inspections he conducts. Mr. Spencer
also testified about the various Inspection Summary Reports (ISR) he prepared,
setting forth the location of the Center, the regulations violated, a description of what
he observed during the inspections, the corrections required, the Center’s plan of
correction, and a date for the Center to complete any corrections.5 Mr. Spencer
testified that Mrs. Mendez was present at the Center during the inspections on
April 24, 2019, and May 2, 2019. Mr. Spencer then provided specific details
concerning the three categories of violations relevant to this appeal.
First, concerning the mixed-age-level violations, Mr. Spencer testified that on
May 2, 2019, he observed one of the Center’s employees out of ratio by one child
4
The ALJ admitted into evidence at the hearing a copy of the Center’s attorney’s appeal
letter as DHS’s Exhibit C-2. (C.R. at 78-80, 237, 253.)
5
The ALJ admitted into evidence as DHS’s Exhibit C-1, identified by DHS as a “Negative
Sanction Notice and Attachments,” which was issued to the Center and included Mr. Spencer’s
ISRs. (C.R. at 47-77, 210, 253.)
3
when she was supervising thirteen school-age children instead of the maximum
permissible number of twelve where the youngest child in the group is six years old.
Mr. Spencer testified that, on the same day, he observed a Center employee leave
another Center employee alone in the younger toddler room with six children instead
of the maximum permissible number of five when the youngest child in the group is
one year old.
Second, concerning the child and adult hygiene violations, Mr. Spencer
testified that DHS requires that the Center employees ensure that children’s hands
are washed before meals and snacks, after toileting, and after diapering. Mr. Spencer
explained that the Center employees must also wash their own hands in the
aforementioned situations. Mr. Spencer testified that on April 24, 2019, while he
was in the Center’s infant room, he observed a Center employee fail to wash her
hands or the child’s hands after she changed the child’s diaper.
Third, concerning the supervision of children violation, Mr. Spencer testified
that DHS requires children on the Center’s premises to be supervised at all times.
Mr. Spencer testified that, on May 2, 2019, he observed a school-age child alone in
the Center’s lobby for approximately one to two minutes, although he later clarified
that he was not sure how long the child was alone in the lobby before he noticed the
child. Mr. Spencer also described the physical layout of the Center, noting that there
is a hallway separating the lobby from the classrooms and the exit from the Center
is in the lobby.
Mr. Spencer testified that, after his inspection, the Center submitted
acceptable plans of correction for each of the three violations. The Center’s attorney,
on cross-examination, asked Mr. Spencer about the Center’s compliance concerning
the three categories of violations, but DHS objected to the question based on
4
relevance. DHS’s attorney explained that any corrective action after the date of the
negative sanctions was irrelevant to the revocation proceedings, and the ALJ
sustained the objection. The Center’s attorney asked Mr. Spencer how long he
remained in the infant room after observing the improper hygiene violation, and he
testified that he remained for at least five to ten minutes. Mr. Spencer also testified
that he could not recall if the Center’s employee was wearing gloves during the
diaper change, but, even if she was, DHS’s regulations require that she still wash her
hands. With regard to the child who was unsupervised in the lobby, Mr. Spencer
testified that he and Mrs. Mendez spoke with the child’s mother. Mr. Spencer
testified on re-direct that he did not observe a Center employee specifically
responsible for working in the lobby area.
The Center called Mrs. Mendez as its sole witness. Mrs. Mendez testified that
the Center has a handwashing policy, that she trains her staff how to wash hands
properly, and that there are instructions posted over the sink regarding handwashing.
Mrs. Mendez also explained that her employees must wear gloves while working at
the Center. Mrs. Mendez testified that she was at the Center when Mr. Spencer
observed the child unattended in the lobby, and she explained that the lobby is small
with a door leading to the street. Mrs. Mendez testified that the Center has a big
parking lot for the parents to use when dropping off the children, but some parents
just park out front and take their child inside to their child’s teacher. Mrs. Mendez
testified that you need to be “buzzed” to be let into the building and that her husband
is in charge of letting people into the Center. Mrs. Mendez explained that the Center
has a policy that requires the parent to bring a child into the building. Mrs. Mendez
testified that you cannot see into the lobby from the Center’s classrooms.
5
Mrs. Mendez, on cross-examination, admitted that DHS’s regulations do not
provide for the use of gloves instead of handwashing for her employees. Mrs.
Mendez testified that the Center’s handwashing policy was in effect at the time of
the violations. When DHS’s attorney pointed out that, in response to one of the
violations, Mrs. Mendez said that the Center would implement a handwashing
policy, she did not directly answer his question. Mrs. Mendez, on re-direct
examination, testified that she had a handwashing policy in place at the Center prior
to April 2019, and it was her plan to maintain a handwashing policy. The Center
rested its case, and the ALJ adjourned the hearing. Both DHS and the Center
submitted post-hearing briefs in January 2020.
The ALJ, based upon the evidence and testimony presented, recommended
that the Center’s appeal be denied based solely on its failure to comply with the Code
and DHS’s regulations.6 (AC at 14; C.R. at 128.) The ALJ found that for the two
mixed-age-level violations, Mr. Spencer “presented testimony consistent with the
written violation and explained [that the] [Center’s] rooms are physically separated
by walls.” (AC at 10; C.R. at 124.) Additionally, the ALJ found that the Center’s
employee “responsible for the young toddlers was the sole caregiver for
6
While not issues in this appeal, we note that the ALJ also concluded that DHS did not
prove that the Center failed to comply with acceptable plans to correct the noncompliance items
and the gross incompetence, negligence, or misconduct in operating the facility claims.
(AC at 13-14; C.R. at 127-28.) Specifically, the ALJ explained that at the hearing DHS objected
to the relevancy of the Center’s testimony regarding its compliance with the acceptable plans of
correction. The ALJ sustained DHS’s objection. DHS then failed to address the Center’s
compliance with accepted plans of correction and only generally contended that repeated
violations of regulatory provisions constituted a failure to comply with an acceptable plan of
correction. Similarly, DHS failed to identify anything more than simple noncompliance with the
regulations and, again, only generally contended that repeated regulatory violations amounted to
gross incompetence, negligence, or misconduct. The ALJ disagreed with DHS’s contentions and
dismissed both claims.
6
approximately five minutes.” (Id.) The ALJ recognized that the Center “did not
dispute the violation but contended that [DHS] accepted the [Center’s] plan of
correction which was implemented to correct the violation.” (AC at 10-11; C.R.
at 124-25.) The ALJ remarked that the Center’s arguments did not mitigate the
violation and, as a result, concluded that “[DHS] presented substantial evidence that
[the Center] violated [DHS’s mixed-age-level regulation].” (AC at 11; C.R. at 125.)
Next, concerning the hygiene violations, one child and one adult, the ALJ
relied upon Mr. Spencer’s testimony based on his personal observations on
April 24, 2019. The ALJ found that the Center did not dispute that the employee did
not wash her hands or the child’s hands. (Id.) The ALJ referenced Mrs. Mendez’s
testimony about the Center’s policy that required employees to wash their hands and
the children’s hands after diaper changes, that Center employees were trained to do
so, and that Center employees must also wear gloves in this situation. (Id.) The ALJ
concluded that strict compliance with the regulations is mandatory, substantial
compliance is insufficient, and, despite the Center’s policy and training, DHS
presented substantial evidence that the Center violated the child and adult hygiene
regulations. (AC at 11-12; C.R. at 125-26.)
Finally, regarding the Center’s supervision of children violation that resulted
from the child being alone in the lobby, the ALJ credited Mr. Spencer’s testimony
as supporting the cited violation. (AC at 12-13; C.R. at 126-27.) The ALJ explained
that the Center “confirmed the incident and stated [that] the child entered the lobby
without staff knowledge” while arguing that “an acceptable plan of correction was
submitted and implemented to correct the violation.” (AC at 13; C.R. at 127.) The
ALJ concluded that the Center’s argument failed to mitigate the violations and that
7
DHS presented substantial evidence that the Center violated the supervision of
children regulation.7 (Id.)
DHS’s BHA Chief Administrative Law Judge adopted the ALJ’s
recommendation in its entirety by final administrative order dated May 7, 2020, and
denied the Center’s appeal of the revocation of its provisional certificate. This
appeal followed.8
II. ISSUES
The Center essentially raises five issues on appeal.9 First, the Center contends
that the ALJ’s findings of fact are not supported by substantial evidence. Second,
the Center argues that the ALJ erred as a matter of law when he excluded evidence
of the Center’s substantial compliance with DHS’s accepted plans of correction.
Third, the Center contends that the ALJ erred as a matter of law when he excluded
7
In addition, the ALJ concluded that DHS met its burden to prove that Mrs. Mendez
violated a DHS regulation prohibiting inappropriate language based upon what Mrs. Mendez said
to the child who was unsupervised in the lobby. (AC at 13; C.R. at 127.) Pursuant to 55 Pa. Code
§ 3270.113(d), “[a] facility person may not use harsh, demeaning or abusive language in the
presence of children.” Mr. Spencer testified that he heard Mrs. Mendez tell the child that he was
responsible for the possibility of her license being revoked. Mrs. Mendez denied that she used
“inappropriate language.” The ALJ found Mr. Spencer’s testimony to be more credible than Mrs.
Mendez’s testimony. We note that the ALJ did not, however, conclude that DHS met its burden
to prove that the Center violated a regulation relating to rest equipment. (AC at 12; C.R. at 126.)
8
We note that, in an unreported, single-judge opinion of this Court, the Honorable M.
Hannah Leavitt granted the Center’s application for supersedeas of DHS’s May 7, 2020 order,
revoking the Center’s provisional certificate. Celeste Learning Ctr. v. Dep’t of Hum. Servs.
(Pa. Cmwlth., No. 518 C.D. 2020, filed April 6, 2021). In so doing, Judge Leavitt concluded that
the Center “has, at the very least, presented a ‘substantial case on the merits[,]’” that closure of the
business satisfied the requirement of irreparable harm, that the stay would not harm other interested
parties, and that issuance of the stay would not adversely affect the public interest. Id., slip op. at
4-8 (quoting Pa. Pub. Util. Comm’n v. Process Gas Consumers Grp., 467 A.2d 805, 809
(Pa. 1983)). Consequently, the Center has remained open pending the decision of this panel on
the merits of its appeal.
9
After reviewing the Center’s arguments, we have reframed the issues and reordered them
for purposes of convenience.
8
as hearsay Mrs. Mendez’s testimony about what the mother of the child who was
unsupervised in the lobby told her concerning why the child was in the lobby alone.
Fourth, the Center argues that DHS is holding Mrs. Mendez to strict compliance with
its regulations for the misconduct of her employees despite the training and the
policies she has in place as the owner and operator. Finally, the Center contends that
DHS’s revocation of its provisional certificate was improper, because revocation is
only appropriate when the violations are so serious that the children were threatened
with harm.10
III. DISCUSSION
The Code authorizes DHS to revoke a provisional certificate of compliance,
in relevant part, for “[v]iolation of or non[]compliance with the provisions of [the
Code] or of regulations pursuant thereto.” Section 1026(b)(1) of the Code, 62 P.S.
§ 1026(b)(1). The law has been exceptionally clear for over three decades—i.e., that
DHS may revoke a license (e.g., a provisional certificate) for even a single violation
of its regulations. Aa to Zz Childcare & Learning Ctr. v. Dep’t of Hum. Servs.
(Pa. Cmwlth., No. 651 C.D. 2018, filed May 1, 2019), slip op. at 811 (citing K.C.
Equities v. Dep’t of Pub. Welfare, 95 A.3d 918, 930 (Pa. Cmwlth. 2014), appeal
denied, 106 A.3d 727 (Pa. 2015); Altagracia, 943 A.2d at 356; Pine Haven
10
Our review of a final order of DHS is limited to determining whether an error of law
was committed, whether constitutional rights were violated, or whether necessary findings of fact
are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704; Altagracia De Pena Family Day Care v. Dep’t of Pub. Welfare, 943 A.2d 353, 356 n.3
(Pa. Cmwlth. 2007) (Altagracia).
11
Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a),
provides that “an unreported panel decision of this Court issued after January 15, 2008,” may be
cited for its persuasive value.
9
Residential Care Home v. Dep’t of Pub. Welfare, 512 A.2d 59, 61
(Pa. Cmwlth. 1986)).
A. Substantial Evidence
The Center contends that DHS’s findings of fact are not supported by
substantial evidence. (Center’s Brief at 5.) “Substantial evidence is such relevant
evidence that a reasonable mind might accept as adequate to support a conclusion.”
Clites v. Dep’t of Pub. Welfare, 548 A.2d 1345, 1347 (Pa. Cmwlth. 1988). The
“substantial evidence . . . may be circumstantial and based on inferences.” Brown
Transp. Corp. v. Pa. Hum. Rels. Comm’n, 578 A.2d 555, 560 (Pa. Cmwlth. 1990).
As part of our review, we are mindful that “[i]t is not the function of a reviewing
court to judge the weight of [the] evidence and credibility of witnesses on an appeal
from an administrative agency.” Murphy v. Dep’t of Pub. Welfare, White Haven
Ctr., 480 A.2d 382, 387 (Pa. Cmwlth. 1984).
1. Mixed-Age Levels
The ALJ found that the Center violated Section 3270.52 of DHS’s regulations,
55 Pa. Code § 3270.52, on two occasions. To better understand this violation, we
note that DHS classifies children by their age level into six groups ranging from
infant (birth to one year old), young toddler (one to two years old), older toddler
(two to three years old), preschool (three years old to the date the child enters
kindergarten), young school age (kindergarten to fourth grade), and older school age
(fourth grade to the child’s fifteenth birthday). 55 Pa. Code § 3270.4. When
different age level children are grouped together, the age of the youngest child
determines the appropriate staff-to-child ratio. 55 Pa. Code § 3270.52. DHS’s age
level distinctions determine the appropriate staff-to-child ratio for each age group:
infants (one to four), young toddlers (one to five), older toddler (one to six),
10
preschool (one to ten), young school age (one to twelve), and older school age (one
to fifteen). 55 Pa. Code § 3270.51.
Mr. Spencer observed that on May 2, 2019, there were two occasions where
the Center was not in compliance with Section 3270.52 of DHS’s regulations, 55 Pa.
Code § 3270.52. The Center did not dispute the violations, although it contended
that DHS accepted its plan of correction which was implemented to correct the
violations. (AC at 10-11; C.R. at 124-25.) Our review of the record indicates that
the ALJ properly relied on the Center’s admission to the violations, as well as Mr.
Spencer’s testimony at the hearing, which he recognized was consistent with Mr.
Spencer’s ISRs. Consequently, we conclude that substantial evidence exists in the
record to support the ALJ’s conclusion that the Center violated Section 3270.52 on
two occasions.
2. Child and Adult Hygiene
The ALJ found that the Center violated Sections 3270.134(a) and 3270.152
of DHS’s regulations, 55 Pa. Code §§ 3270.134(a) and 3270.152, which,
respectively, require that “[a] staff person . . . ensure that a child’s hands are washed
before meals and snacks, after toileting[,] and after being diapered” and that “[a]
facility person shall wash his hands before meals and snacks, and after toileting and
after diapering a child.” The Center admitted to violating Section 3720.134(a) and
Section 3270.152. (AC at 11-12; C.R. at 125-26.) Moreover, Mr. Spencer testified
that, on April 24, 2019, he observed the violations. The ALJ again relied on the
Center’s admission that the staff member did not wash her hands or the child’s hands,
as well as Mr. Spencer’s testimony based on personal observations. (AC at 11; C.R.
at 125.) We, therefore, conclude that substantial evidence exists in the record to
11
support the ALJ’s conclusion that the Center violated Sections 3270.134(a)
and 3270.152.
3. Supervision of Children
The ALJ found that the Center violated Section 3270.113(a) of DHS’s
regulations, 55 Pa. Code § 3270.113(a), which requires, in relevant part:
(a) Children on the facility premises . . . shall be supervised by a
staff person at all times. . . .
(1) Each staff person shall be assigned the responsibility
for supervision of specific children. The staff person shall know
the names and whereabouts of the children in his assigned group.
The staff person shall be physically present with the children in
his group on the facility premises . . . .
(2) The requirement for supervision . . . includes
compliance with the staff: child ratio requirements in
§§ 3270.51-3270.55 (relating to staff: child ratio).
55 Pa. Code § 3270.113(a). Section 3270.4 of DHS’s regulations defines
“supervise” as being “physically present with a group of children . . . [with] [c]ritical
oversight in which the supervisor can see, hear, direct and assess the activity of the
supervisee.” 55 Pa. Code § 3270.4. Mr. Spencer testified that on May 2, 2019, he
observed a school-aged child alone in the Center’s lobby for approximately one to
two minutes. Mr. Spencer described the physical layout of the Center’s lobby to
support DHS’s contention that the Center’s employees could not see into the lobby
to supervise the child. The Center admitted to violating this regulation. (AC at 13;
C.R. at 127.) The ALJ relied on the Center’s admission to the violation and credited
Mr. Spencer’s testimony as supporting this violation. (AC at 12-13; C.R. at 126-27.)
Again, we, therefore, conclude that substantial evidence exists in the record to
support the ALJ’s conclusion that the Center violated Section 3270.113(a).
12
B. Alleged Errors of Law
1. Corrective Actions Taken After Violations
The Center argues that the ALJ improperly excluded evidence of its accepted
plan of correction. (Center’s Brief at 7.) The ALJ, relying on our decision in
Altagracia, reasoned that any subsequent corrective action is irrelevant in
determining whether a violation of DHS’s regulation occurred. (AC at 10-11; C.R.
at 124-25.) The Center contends that the ALJ’s reliance on Altagracia is misplaced,
because it concerned a family day care home rather than a day care center, and, as a
family day care home, there was no availability of a provisional certificate. (Center’s
Brief at 7.) We do not believe the factual distinctions identified by the Center are
consequential to the ALJ’s reliance on Altagracia, particularly given that this Court
has long held that corrective action taken after a regulatory violation is irrelevant in
determining whether to revoke a license. Holmes Constant Care Ctr. v. Dep’t of
Pub. Welfare, 555 A.2d 282, 285 (Pa. Cmwlth.) (explaining that simply continuing
to make corrections when violations are cited is not “compliance”), appeal denied,
562 A.2d 828 (Pa. 1989); Dep’t of Health v. Brownsville Golden Age Nursing Home,
Inc., 520 A.2d 926, 936 n.7, 938-39 (Pa. Cmwlth.) (recognizing that efforts to cure
deficiencies made after regulatory violation is found irrelevant), appeal denied,
529 A.2d 1083 (Pa. 1987); Colonial Gardens Nursing Home, Inc. v. Dep’t of Health,
382 A.2d 1273, 1277 (Pa. Cmwlth. 1978) (finding no merit in nursing home’s
argument that presiding officer and department erred in imposing sanctions against
nursing home without considering improvements allegedly implemented).
While the curing of deficiencies is important for the safety of the children and
Center employees, “subsequent corrective actions do not erase the fact that a licensee
was in violation of regulations on the date of inspection.” K.C. Equities, 95 A.3d
13at 930. For this reason, we conclude that the ALJ did not err when he excluded the
Center’s evidence of corrective actions taken in response to DHS’s violations.
2. Hearsay Evidence
The Center contends that the ALJ committed an error of law when he
sustained DHS’s objection for hearsay and did not consider as evidence Mrs.
Mendez’s testimony explaining what the parent of the unsupervised child told her
and Mr. Spencer after the discovery of the child in the Center’s lobby. (Center’s
Brief at 13-14.) The crux of the Center’s argument is that “Commonwealth agencies
shall not be bound by technical rules of evidence at agency hearings, and all relevant
evidence of reasonably probative value may be received.” D’Alessandro v. Pa. State
Police, 937 A.2d 404, 411 (Pa. 2007) (quoting 2 Pa. C.S. § 505). The Center submits
that the statement of the parent of the unsupervised child was very relevant and
probative to the circumstances and that Mr. Spencer heard but ignored the parent’s
explanation of how the child came to be unsupervised in the Center’s lobby for a
few minutes. (Center’s Brief at 14.)
Hearsay is a statement, other than the one made by a declarant while testifying
at a trial or hearing, offered into evidence to prove the truth of the matter asserted in
the statement. Pa. R.E. 801(c). A “‘[s]tatement’ means a person’s oral assertion,
written assertion, or nonverbal conduct, if the person intended it as an assertion.”
Pa. R.E. 801(a). A “‘[d]eclarant’ means the person who made the statement.”
Pa. R.E. 801(b). “Hearsay evidence is normally inadmissible at trial unless an
exception provided by the Pennsylvania Rules of Evidence, [the Pennsylvania
Supreme] Court’s jurisprudence, or statute is applicable.” D’Alessandro, 937 A.2d
at 411 (citing Pa. R.E. 802).
14
In determining whether Mrs. Mendez’s testimony was hearsay, we note that
the mother of the unsupervised child (i.e., the declarant) told Mrs. Mendez and Mr.
Spencer the reasons why her child was left alone in the lobby (i.e., she made a
statement). The mother was not testifying at the evidentiary hearing, and the
Center’s attorney offered the mother’s statement into evidence to prove the truth of
the matter asserted. DHS’s attorney, recognizing Mrs. Mendez’s testimony was
relying on the mother’s out-of-court statement, objected to its admission as
evidence.12 The ALJ sustained DHS’s objection on the basis of hearsay.
While it is true, as the Center argues, that Commonwealth agencies are not
bound by technical rules of evidence at agency hearings, there are certainly
limitations to what can be considered as evidence. This Court, in Walker v.
Unemployment Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976),
provided guidelines for when hearsay could be used as admissible evidence (Walker
Rule) in an administrative proceeding. Under the Walker Rule:
12
The Center’s attorney at the hearing argued that Mrs. Mendez’s testimony was not
hearsay and was admissible as a “present sense impression.” Pennsylvania Rule of
Evidence 803(1) defines a “[p]resent [s]ense [i]mpression” as “[a] statement describing or
explaining an event or condition, made while or immediately after the declarant perceived it.” The
exception applies regardless of whether the declarant is available as a witness, and the “declarant
need not be excited or otherwise emotionally affected by the event or condition perceived.” Pa.
R.E. 803(1), Comment. “The trustworthiness of the statement arises from its timing[,]” and the
“requirement of contemporaneousness, or near contemporaneousness, reduces the chance of
premeditated prevarication or loss of memory.” Id.The Court notes, however, that the Center does not argue that the present sense impression
exception to the hearsay rule is applicable in this appeal, and, consequently, it is deemed waived.
See Pa. R.A.P. 2119(a) (“The argument shall be divided into as many parts as there are questions
to be argued; and shall have at the head of each part . . . the particular point treated therein, followed
by such discussion and citation of authorities as are deemed pertinent.”); In re Estate of Ryerss,
987 A.2d 1231, 1236 n.7 (Pa. Cmwlth. 2009) (holding that arguments not properly developed in
appellate brief will be deemed waived by this Court under Pennsylvania Rule of Appellate
Procedure 2119(a)).
15
(1) Hearsay evidence, [p]roperly objected to, is not competent evidence
to support a finding of [an agency][; and]
(2) Hearsay evidence, [a]dmitted without objection, will be given its
natural probative effect and may support a finding of [an agency], [i]f
it is corroborated by any competent evidence in the record, but a finding
of fact based [s]oley on hearsay will not stand.
Rox Coal Co. v. Workers’ Comp. Appeal Bd. (Snizaski), 807 A.2d 906, 915
(Pa. 2002). Thus, the Walker Rule, while more liberal in its allowance of hearsay
evidence for administrative proceedings, does not provide a different outcome in the
present case. DHS objected and the ALJ sustained the objection. Following the
Walker Rule, what the mother told Mrs. Mendez and Mr. Spencer cannot be
considered competent evidence for the Center’s case. If the Center wanted the
mother’s statement to come into evidence, it could have called the mother as a
witness or, alternatively, provided an argument in this appeal that her statement
constituted an exception to the hearsay rule. In the absence of either, the ALJ’s
evidentiary decision is correct and not an error of law.
3. Strict Compliance for Code and Regulations
The Center contends that the ALJ held Mrs. Mendez to strict compliance
standards for the misconduct of her employees in failing to follow DHS’s regulations
and that DHS is in essence requiring her to guarantee that no mistake would ever
occur by an employee. (Center’s Brief at 5, 9.) We disagree.
“It is well[]established that duly authorized and promulgated regulations of an
administrative agency have the force of law and are binding on the agency.” State
Coll. Manor Ltd. v. Dep’t of Pub. Welfare, 498 A.2d 996, 998 (Pa. Cmwlth. 1985)
(citing Newport Homes, Inc. v. Kassab, 332 A.2d 568, 574 (Pa. Cmwlth. 1975)).
“[T]he establishment of these regulations involves agency discretion, and the court
will not disturb administrative discretion in the absence of fraud, bad faith[,] or abuse
16
of power.” Id. (citing Travis v. Dep’t of Pub. Welfare, 277 A.2d 171, 174 (Pa.
Cmwlth.), aff’d, 284 A.2d 727 (Pa. 1971)). Strict compliance with the requirements
of the Code and DHS’s duly promulgated regulations is mandatory and substantial
compliance is insufficient. Casey Ball Supports Coordination, LLC v. Dep’t of Hum.
Servs., 160 A.3d 278, 284 (Pa. Cmwlth. 2017) (quoting State Coll. Manor Ltd.,
498 A.2d at 998). Stated differently, a DHS-licensed facility must comply with
applicable regulations every day, not just some or even most of them.
The purpose of DHS’s Child Day Care Center regulations is “to provide
standards to aid in protecting the health, safety and rights of children and to reduce
risks to children in child care centers” and to “identif[y] the minimum level of
compliance necessary to obtain [DHS’s] certificate of compliance.” 55 Pa. Code
§ 3270.2. In order for a legal entity to operate a child care facility in the
Commonwealth, the entity must obtain a certificate of compliance from DHS, which
is a “document . . . to operate a specific type of facility or agency, at a given location,
for a specified period of time, and according to appropriate [DHS] program licensure
or approval regulations.” 55 Pa. Code § 20.4; see also 55 Pa. Code § 20.21(concerning certificate of compliance application forms). A legal entity can be “[a]
person, society, corporation, governing authority or partnership legally responsible
for the administration and operation of a facility or an agency.” 55 Pa. Code § 20.4;
see also 55 Pa. Code § 20.13 (requiring legal entity to specify in writing at time of
application or reapplication name of person responsible for daily operation of facility
or agency). The record establishes that the Center, through its provisional certificate,
was permitted to supervise up to 175 children, and Mrs. Mendez was identified as
the individual responsible for the Center’s daily operations. (C.R. at 34.)
17
DHS does not need to prove that Mrs. Mendez knowingly participated in or
acquiesced to the regulatory violations levied against the Center. See Aggie v. Dep’t
of Pub. Welfare (Pa. Cmwlth., No. 484 C.D. 2014, filed December 30, 2014), slip
op. at 11-12 (holding that “[t]o apply such rule would provide owners of licensed
facilities with a blanket defense and discourage close monitoring of the activities at
such facilities”); McFarland v. Dep’t of Pub. Welfare, 551 A.2d 364, 367 n.6
(Pa. Cmwlth. 1988), appeal denied, 574 A.2d 74 (Pa. 1989) (DHS’s refusal to renew
certificate of compliance need not be supported by finding that day care provider
willfully violated regulation). Cf. Miller Home, Inc. v. Dep’t of Pub. Welfare, 556
A.2d 1, 4 (Pa. Cmwlth.) (holding DHS’s revocation of personal care home license
did not require legally responsible individual have personal knowledge of violation),
appeal denied, 563 A.2d 889 (Pa. 1989); Toms v. Bureau of Pro. & Occupational
Affs., 800 A.2d 342, 349 (Pa. Cmwlth. 2002) (holding that no matter how
well-intentioned, funeral home director violated applicable regulations). Even
though Mrs. Mendez was not directly involved in her employees’ actions that led to
the regulatory violations, she managed the Center by controlling its policies, ensured
that proper training was conducted, hired the employees who worked there, and most
importantly, was the owner. In other words, the acts of the Center’s employees are
attributed to the Center for purposes of licensing.
We have no doubt that the Center’s employees, like any other employee, make
mistakes in the course of their employment that affect compliance with DHS’s
regulations. We are cognizant of the Center’s argument that mitigating
circumstances exist such that DHS should not have revoked its provisional
certificate; for example, that its violations lasted less than five minutes, that the
staff-to-child imbalance occurred because a Center employee departed the room, that
18
there was a policy that was not followed requiring the washing of the child’s and
employee’s hands, and, perhaps most significantly, that a parent of a child violated
the Center’s policy requiring parents to accompany a child when entering the
premises, resulting in an unsupervised child in the Center’s lobby. Although the
Center’s employees may not have intended to violate DHS’s regulations or the
Center’s policies, through human action (and inaction) they nevertheless created
situations where DHS’s regulations were violated.
Balanced against the Center’s alleged mitigating circumstances, however, is
that when the mistakes involve a child’s health and safety or relate to efforts to
reduce risks to children in child care centers, DHS has chosen to promulgate specific
childcare regulations and require strict adherence to them. This Court will not
disturb DHS’s administrative discretion in the absence of fraud, bad faith, or abuse
of power, and the record does not support that those actions occurred in this case.
Further, Mrs. Mendez agreed to follow DHS’s regulations when she applied for and
received the Center’s regular and provisional certificates of compliance, which is a
necessary concession when operating a child day care facility in the Commonwealth.
We conclude, therefore, that the ALJ did not err as a matter of law by holding the
Center to a strict compliance standard with regard to DHS’s regulations.
4. Seriousness of the Violation
The Center argues that the ALJ erred because DHS’s revocation of the
Center’s provisional certificate is proper only where the “violation is so serious that
the children were threatened with harm.” (Center’s Brief at 8.) The Center argues
that DHS’s revocation of its provisional certificate is not appropriate because “no
harm came to any child.” (C.R. at 78-80, 237, 253.) The Center solely relies on our
decision in Gibbs v. Department of Public Welfare, 947 A.2d 23319
(Pa. Cmwlth. 2008), appeal denied, 966 A.2d 572 (Pa. 2009), to support its
argument. In Gibbs, we found that the caregiver of a family child day care home did
not violate the Code when she delegated supervision of the children to an adult staff
person who failed to watch them, resulting in a two-year-old child leaving the yard
and crossing the street. Gibbs, 947 A.2d at 234, 237-38.
After deciding Gibbs, however, we explained that we “must look at each
violation and the resulting punishment on a case-by-case basis.” Aggie, slip op.
at 12. In Aggie, we addressed the similar contention that DHS only “has the right to
revoke a license based on a violation where a child is endangered, but it must allow
for corrective action where it only charges technical violations.” Aggie, slip op. at 14
(footnote omitted). In dismissing this argument, we reasoned:
[Ms. Aggie] cites no authority for her distinction between technical
violations and violations where a child is endangered. However, even
if we agreed with [Ms. Aggie], we would still conclude that [DHS] was
justified in refusing to renew her certificate of compliance here. The
regulations that [Ms. Aggie] was found to violate concerned
supervision of children both inside and outside the facility, children’s
hygiene, and proper communication to parents regarding incidents at
the day care; the purposes underlying these regulations clearly relate to
the health and safety of children and violations of these regulations
could very conceivably endanger the welfare of the affected children.
The mere fact that none of the incidents at issue here resulted in an
injury to a child does not absolve [Ms. Aggie] from any responsibility
for the lapses at her facility or lessen [DHS’s] authority to bring
charges for such violations.
Id. (emphasis added). The same reasoning applies to the Center’s case. It is of
significant import that the unsupervised child in the lobby of the Center had access
through a door directly to the outside street in an urban environment. The fact that
the child did not go outside while he was unsupervised and that no child suffered
physical harm in this case does not absolve the Center of its responsibility for its
admitted violations. DHS’s regulations offer no distinction between “technical” and
20
“serious” violations, and any of the Center’s admitted violations could have led to a
situation where a child could have been physically harmed. Thus, we conclude that
the ALJ did not err as a matter of law.13
IV. CONCLUSION
Accordingly, we affirm the Chief Administrative Law Judge’s decision,
adopting the ALJ’s adjudication and recommendation in its entirety.
P. KEVIN BROBSON, President Judge
13
Based on our disposition of the admitted violations, we need not address the merits of
the Center’s argument concerning the ALJ’s conclusion that Mrs. Mendez used harsh, demeaning,
or abusive language.
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Celeste Learning Center, :
Petitioner :
:
v. : No. 518 C.D. 2020
:
Department of Human Services, :
Respondent :
ORDER
AND NOW, this 20th day of December, 2021, the order of the Chief
Administrative Law Judge of the Department of Human Services, Bureau of
Hearings and Appeals, dated May 7, 2020, which adopted the recommendation of
an Administrative Law Judge, thereby denying Petitioner’s appeal, is AFFIRMED.
P. KEVIN BROBSON, President Judge