COMMONWEALTH OF MASSACHUSETTS OFFICE OF CHILD CARE SERVICES

Suffolk, ss

Docket # GDC-02-68

OFFICE FOR CHILD CARE SERVICES v. PICCOLO MONDO LEARNING CENTER, INC. REQUEST FOR ADMINISTRATIVE RECONSIDERATION OF CERTAIN SANCTIONS AND MOTION TO STAY THE EFFECTIVENESS OF THOSE CERTAIN SANCTIONS PENDING THE OUTCOME OF THE ORDER

INTRODUCTION

Pursuant to 102 CMR 1.08(1)(a), Piccolo Mondo Learning Center, Inc. ("the Center") hereby Requests Administrative Reconsideration of Certain Sanctions ("Sanctions") imposed on the Center by the Office for Child Care Services ("OCCS") set forth in the Order to Protect the Children: Notice of Action to Rescind and Notice of Sanctions dated August 8, 2002 ("Order"). Simultaneously, the Center hereby moves for a Stay of the Effectiveness of Those Certain Sanctions Pending the Outcome of this Order ("Stay").

The imposition of certain sanctions in the Order effectively will put the Center out of business, without a hearing. As a result, the children who attend the Center, their families, its staff and the Center will be irreparably harmed should the certain sanctions for which the Center seeks reconsideration remain in effect. The Center intends to file an appeal of the Notice of Action to Revoke and will file a Notice of Claim for an adjudicatory hearing on OCCS's license decision.

The Center hereby requests that the sanctions listed below be rescinded, modified or at a minimum stayed pending the resolution of the Order.

Below, the Center addresses each of the sanctions to which its Request is directed.

SANCTIONS

A. The Director of the Center, Maria Cupo, Must Continue to Have No Role in the Program's Administration Sanction A contains five parts. Order at 15. Each part of sanction A is addressed separately. While the Center is moving to rescind or modify certain portions of sanction A, there are other portions of sanction A with which the Center will adhere.
 

The first portion of sanction A states that Ms. Cupo must "remain out of any and all administration of the program." Order at 15. The Center cannot continue to operate if Ms. Cupo is not providing the necessary administrative work. See Affidavit of Maria Cupo, attached to this Request, Paragraphs 16 and 17 (hereinafter "Aff. Para. ____"). The administrative functions necessary to the safe operation of the Center include hiring, scheduling, ensuring compliance with all state and local requirements, addressing concerns, paying invoices and maintaining supplies and physical plant. Aff. Para. 10. Throughout its existence, only Ms. Cupo has performed those functions. Aff. Para. 9. All of those functions are necessary "to ensure the safe and continuous operation of the Center." Aff. Para. 11. There is no other person on staff who has the experience to perform those functions. Aff. Para. 12. If there is no administration of the Center, not only will the needs of children not be met, but also the Center will cease to exist. Aff. Para. 16.

To cause the Center to close as a result of the imposition of this sanction is the functional equivalent of a license revocation, without a hearing. G.L. c. 30A §13 provides that "no agency shall revoke… any license unless it has first afforded… an opportunity for hearing…" With all Center staff devoted to the care of the children enrolled in the Center, there is no other person available to perform administrative duties. Aff. Para. 13. Moreover, there is no member of the Center's staff who is experienced in performing these administrative duties. Id. Para. 12. With no administration being performed, the Center will close. Id. Para. 17. Consequently, if this first portion of sanction A remains in effect, the Center's license effectively will be revoked without a hearing.

In addition, the facts upon which this sanction is based are in dispute. The Center and Ms. Cupo vigorously deny that anyone interfered or impeded the investigation conducted by the Leominster Police Department, the Department of Social Services, and OCCS. The Center interprets Mass. Gen. Laws c. 119, s. 51A differently from OCCS. Thus, since there exists a genuine dispute involving the facts and the law that underlie this part of sanction A, this part of sanction A should be rescinded. In the alternative, the Center requests that this part of sanction A be modified to permit Ms. Cupo to administer the Center until a new director is hired and is familiar enough with the Center to keep it operating.

The third component of sanction A requires that Ms. Cupo "not have any involvement, influence, or role in the day to day operation" of the Center. Order at 15. Much like the first part of sanction A, left intact, the third component of sanction A would leave the Center with no administration. The intent of the Order is to protect children. The consequence of no administration of the Center, which is the practical effect of the third part of sanction A, is to leave the children unprotected. There will be no person to hire staff, schedule care, schedule staff, maintain the physical plant, maintain compliance with state and local requirements and pay bills, salaries and other expenses. Aff. Para. 10 and 12. When the benefit to the children of prohibiting Ms. Cupo from performing any administrative duties related to the operation of the Center, as stated in the third part of sanction A, is balanced against the undisputed fact that the Center will cease to operate effectively as a result, undoubtedly, the children will suffer and the Order's purpose to benefit the children will be defeated. Currently, there is no person experienced in performing those administrative duties to maintain the day-to-day operations of the Center. Aff. Para. 12. There is no other person known to Ms. Cupo who is experienced in performing all of the necessary administrative tasks. Aff. Para. 15. By removing Ms. Cupo from the day-to-day operations of the Center there will be no one to perform those functions. The Center will close as a result. Aff. Para. 17.

Therefore, this part of sanction A should be rescinded. In the alternative, this part of sanction A should be modified to permit Ms. Cupo to continue to administer the Center until a director is hired and familiar enough with the Center to assume all administrative responsibilities.

The fifth part of sanction A requires that the Center hire a new director. The Center will not be able to hire an experienced, competent director when the OCCS intends to revoke the Center's license. There is no showing in the record and it defies all logic that an individual who is competent in all aspects of being "responsible for the day to day administration and business operations, as well as overseeing programming and curriculum and supervision staff of the licensee" (Order at 15) will take the position of Director with the pending notice of action to revoke the Center's license.

First, the Center has only 14 days left to appeal the notice of revocation. There is no definitive time frame within which to address the appeal. While the Center believes it will be successful in its appeal, it is folly to believe any person competent to administer the Center would take the position without knowing whether the license will be revoked.

Second, the Center simply cannot comply with this portion of the sanction. This gives cause for OCCS to revoke the Center's license. The Order requires the Center to submit a name and resume of a new director by August 22 (two weeks from the date of the Order). The regulations require a request for reconsideration to be filed within one week of the Order. 102 CMR 1.08 (1) (a). The regulations require the OCCS to address the Request within fifteen (15) business days of the Request. 102 CMR 1.08 (1) (b). Assuming OCCS takes the full 15 days to consider the Request, a ruling on this Request will be issued on September 9. This is 18 days after the Center is required to submit a name and resume of a new director to OCCS. Undoubtedly, sanctions are intended as an interim, temporary measure because, unlike license revocation, there is no right of appeal on sanctions. For sanctions, there is only the right to file for reconsideration. Id. Given the time frames embodied in the regulations for reconsideration the Center could be found in default of this sanction well before OCCS takes action on the reconsideration, thereby creating a violation of the Order which would trigger license revocation . The OCCS has a self-fulfilling approach.

Therefore, the OCCS should either rescind this sanction or withdraw its intention to revoke the Center's license.

Moreover, even assuming a lapse of proper application of the pertinent policies, Ms. Cupo's actions do not rise to a level that would require a new director. Assuming that procedures were not followed, a consultant is more than adequate to address the concerns of the OCCS.

Therefore, this sanction should be rescinded.

B. The Center Must Hire A Consultant

Sanction B requires the Center to hire a consultant experienced in the administration of group child care centers, in the training of staff regarding issues of recognizing signs of sexual abuse in children and in the training of staff. Order at 16. Ms. Cupo is in the process of hiring a consultant. However, sanction B should be modified so that the term of the consultant's services, as well as the number of hours that the consultant provides services, be determined by the consultant. Assuming that the appeal process may last eight to twelve weeks, and that the consultant is required to bill the Center for fifteen hours of consulting services per week, and further assuming that a consultant may cost $100 per hour, the Center may be required to spend in the vicinity of $15,000. In addition to legal and other fees that the Center is now forced to incur, these expenses would effectively put the Center out of business, creating great hardship for parents and children. Therefore, Ms. Cupo requests that OCCS allow the consultant, who must be approved by OCCS, to determine the necessary amount of consultation services.

C. Karen Crumbley Shall Not Have Any Direct Contact with Child Care Children

Sanction C requires Karen Crumbly not to have any direct contact with child care children. Order at 20. Karen Crumbley has been employed at the Center for eight years. She holds an Associates Degree from Wachusett Community College's Child Study Program. She is certified by OCCS as a teacher for infants, toddlers, and pre-schoolers. She has had no complaints filed against her in the present matter nor has she ever had any complaints filed against her. She is wrongly being deprived of her ability to work at the Center. Her reputation has been harmed and her ability to obtain employment elsewhere has been damaged by this sanction. Sanction C has the effect of depriving Ms. Crumbley of a property right without due process of law. Ms. Crumbley did not withhold information pertinent to the investigation of allegations of abuse at the Center. She spoke to a child for whom she had acted as baby-sitter for approximately three years and with whom she had developed a relationship outside of the Center. Ms. Crumbley informed the Leominster police of her conversation the very next day. As the investigation was a "joint investigation" involving the Leominster police, the Department of Social Services ("DSS"), and OCCS, it was reasonable for Ms. Crumbley to assume, and indeed she was entitled to assume, that information provided to one investigator was shared with others. In this case, the DSS investigator was present when Ms. Crumbley informed the police detective of her information. As a practical matter, and as a matter of pure logic, OCCS, because it had access to the "joint investigation" material had actual, if not constructive, knowledge of the situation. OCCS knew from both the police report and the DSS 51B investigation that Ms. Crumbley had spoken with the police. Yet, OCCS made no attempt to interview Ms. Crumbley.

This sanction should be rescinded.

D. The Kindergarten and Limited School Age Child Care Enrollment Shall Remain at Zero

The Center voluntarily closed the kindergarten and limited school age child care room. The OCCS issued sanction D which requires this room to remain closed. Order at 20. There are fifteen children whose parents hope to have them begin kindergarten next month and remain in the after-school program until pick-up time. Since the alleged perpetrator of abuse is no longer employed at the Center, there is no greater risk to children in this room than in any other room. The kindergarten teacher is an experienced, certified teacher who has not been accused of any wrongdoing. She has been the kindergarten teacher at the Center for three years. The room should be re-opened because this sanction does not give adequate time for the parents to make alternative plans for their children. At no time since June was there any indication that this room would not open in September. This sanction places an undue burden on the children and parents who were expecting to begin kindergarten here in September.

The sanction should be rescinded.

E. Enrollment Shall Be Frozen at Current Levels

By ordering the Center to freeze enrollment at its current level and by prohibiting the Center from replacing any children who leave, sanction E places a debilitating financial burden on the Center. Order at 21. It is not speculative to assume that given the current proceedings additional children will leave the Center. As a result, incoming funds to the Center will further decrease. This reduction of incoming funds, coupled with the added financial burden of hiring a new director and a consultant puts the Center in an unfair position.

In order for the Center to comply with the sanctions that it hire a new director and a consultant, the Center must be allowed to maintain an enrollment level that provides sufficient funds to support the costs of complying with the sanctions. The effect of the sanction is to reduce those funds.

This sanction E should be rescinded.

In the alternative, the Center should be permitted to maintain the current enrollment level by replacing any child who leaves the Center.

STAY

The effectiveness of those portions of sanction A, sanction B, sanction C, sanction D and sanction E should be stayed pending the ultimate resolution of the Order.

Like a preliminary injunction, a stay functions to preserve the status quo until the merits of a matter can be adjudicated fully. See American Bd. Of Pharmacy and Neurology Inc. v. Johnson Powell, 129 F 3d 1. (1st Cir. 1997); Chiara v. Dizoglio, 59 F. Supp. 2nd (D. MA. 1999).

In determining whether a stay should issue, the court evaluates: (1) the moving party's claim that it would suffer irreparable harm if the stay or injunction is denied; (2) the injury the party opposing the stay will suffer if the stay is granted; (3) the moving party's likelihood of success on the merits; and (4) the risk of harm to the public interest. See, Brookline v. Goldstein, 388 Mass 443, 447 (1983), citing, Commonwealth v. County of Suffolk, 383 Mass 286 (1981), Packaging Indus. Group, inc. v. Cheney, 380 Mass. 609 (1980).

A. Because it is a Clear Statutory Violation, a Legal Challenge by the Center to the Imposition of the Sanctions as Noticed Has a Strong Likelihood of Success

Any action by OCCS to suspend or revoke a license is subject to the requirements of G.L. c. 30A ("State Administrative Procedures Act"). The State Administrative Procedures Act has long been held to provide broad, remedial measures in providing comprehensively for procedural due process in administrative proceedings. Milligan v. Board of Registration in Pharmacy, 348 Mass. 491, 500 (1965). When constitutionally protected property interests are at stake, a hearing before the agency seeking to deprive or terminate that property right must be conducted in accordance with the provisions of the G.L. c. 30A. Madera v. Secretary of Executive Office of Communities and Development, 418 Mass. 452 (1994). By mandating such adjudicative hearings, G.L. c. 30A ensures the protection of the due process rights of individuals, corporations and other entities regulated by the Commonwealth or its administrative agencies, such as OCCS. For the reasons stated above, if the sanctions to which the Request are directed remain in effect or are not stayed, the Center's license effectively will be revoked without notice, hearing and due process in violation of G.L. c. 30A.

B. Imposition of the Noticed Sanctions, without Being Rescinded or Modified in the Manner Set Forth in the Center's Request, before Final Adjudication of this Matter will Cause Irreparable Harm to the Center, the Children, their Families, and the Staff by Putting the Center Out of Business

When the loss from economic harm threatens the very existence of a business, that business suffers irreparable harm. See Tri-Nel Management Inc. v. Board of Health Barnstable, 433 Mass. 217 (2001); Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 399 Mass. 640 (1987).

The Center has been in operation for approximately 13 year, employs 16 people and has been providing care for over 90 children. Aff. Para. 3, 5, and 13. However, the operation of the Center will cease, if the sanctions as noticed are imposed.
Id. 17.

Ms. Cupo is the only person on the Center's staff who is experienced in performing the administrative duties necessary for the operation of the center. Aff. Para. 12. Without appropriate administration of the Center, the children will be left unprotected because there will be no person to hire staff, accept children for care, schedule care, schedule staff, maintain the physical plants, comply with state and local requirements and pay bills, salaries and expenses. Id. Para. 10 and 11. The Center cannot continue to operate if Ms. Cupo is not allowed to provide the administrative work necessary to keep the Center open and functioning. Id. at 16.

Moreover, the financial strain on the Center of having to hire and pay a consultant as required by the Order in addition to legal and other fees that the Center is now forced to incur, would force the center to close, creating great hardship on the children and parents who rely on the Center.

C. The Risk of Harm to the Center if the Sanctions are Not Stayed Far Outweighs any Harm That May be Caused by the Staying of the Sanctions and Imposes No Harm to the Public Interest

"[It is] the policy of the Commonwealth to assure every child a fair and full opportunity to reach his full potential by providing and encouraging services which strengthen family life and support families in their essential function of nurture of a child's physical, social, educational, moral and spiritual development." G. L. c. 28A § 1. The staying of the imposition of the sanctions enumerated above does not conflict with or violate this policy, nor would it cause any harm to OCCS or the children attending the center. Instead, a stay would allow the continued operation of a facility that has long sought to provide an atmosphere in which the values noted in the statute were taught and encouraged.

There does not exist any real or perceived danger to the children who are presently attending the Center. More importantly, the OCCS also does not perceive a present danger to those children attending the shelter. Where it finds that a licensee's failure to comply with its regulations results in an emergency situation, which endangers the life, health or safety of the children at the facility, OCCS has the authority to suspend a license without a prior hearing. 102 CMR 1.07(5). But, OCCS has taken no such action against the Center.

In failing to take such action, OCCS acknowledges that there is no present danger to the children and that the procedures and changes that have already been instituted alleviate OCCS's present concern about the safety of the children. The best interests of the children are the primary concern. In order for the Center to ensure the safety and the best interests of the children, and not cause undue harm to them or their parents, is necessary that the Center be allowed to continue to operate.

CONCLUSION

For the reasons stated above, the OCCS should rescind or modify the sanctions identified in this Report and grant the stay of their effectiveness pending the outcome of its appeal of the Order.

Respectfully submitted,
Piccolo Mondo Learning Center, Inc.
By its attorney, ________________________ Richard E. Connolly, Esq.
BBO # 543927
Ferriter, Scobbo & Rodophele, P.C.
75 State Street, Suite 750
Boston, MA 02109
(617) 737-1800

Dated: August 16, 2002

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