           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tullis’s Little Lamb Daycare,            :
                         Petitioner      :
                                         :
                     v.                  :   No. 164 C.D. 2018
                                         :   Argued: February 11, 2019
Department of Human Services,            :
                      Respondent         :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE P. KEVIN BROBSON, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                         FILED: March 6, 2019


      Tullis’s Little Lamb Daycare (Daycare) petitions for review of the January 10,
2018 Order of the Department of Human Services (Department), Bureau of Hearings
and Appeals (Bureau), which adopted the recommendation of an administrative law
judge (ALJ) denying Daycare’s appeal.        The ALJ concluded the Department
correctly revoked Daycare’s first provisional certificate of compliance (Provisional
Certificate) to operate a child care center based upon: multiple violations of
Department regulations observed during various inspections, including some that
were repeat violations; Daycare’s failure to submit acceptable plans of correction
and follow those that were submitted; and Daycare’s gross negligence. Upon
review, we affirm.
I.     Background
       Daycare is a child care center in Johnstown, Pennsylvania, which operated for
12 years under a full certificate of compliance.1 (Findings of Fact (FOF) ¶¶ 1-2, 10.)
In May 2016, as Daycare’s annual certificate of compliance was expiring, the
Department performed a renewal inspection, which found numerous violations of
Department regulations. (Id. ¶ 13; Exhibit (Ex.) C-1.) Although Daycare submitted
a Plan of Correction (POC) for the May inspection, which was accepted by the
Department, the Department issued Daycare the Provisional Certificate, which was
valid for the six-month period from August 1, 2016, to February 1, 2017, instead of
another full certificate of compliance, which is valid for one year.2 (FOF ¶¶ 22, 25;
Ex. C-3.) During the course of the next six months, the Department performed five
more inspections, which revealed repeat violations, as well as new violations of
Department regulations. As a result, the Department advised Daycare by letter dated
January 4, 2017, that its Provisional Certificate was being revoked for failure to
comply with Department regulations, in addition to failure to comply with
acceptable POCs that were filed, failure to submit acceptable POCs for some
inspections, and gross incompetence and negligence. (Ex. C-0.)

       A.      ALJ Hearing
       Daycare appealed the Department decision, and a hearing was scheduled
before an ALJ. At the two-day hearing, Certification Supervisor and Certification

       1
          “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 Human Services Code,
Act of June 13, 1967, P.L. 31, as amended, 62 P.S. § 1001.
        2
          A provisional certificate of compliance is issued when there has been substantial but not
complete compliance with the applicable regulations. (FOF ¶ 8.)



                                                 2
Representative testified on behalf of the Department, while Daycare’s Director
testified in Daycare’s defense.
       Certification Supervisor testified in pertinent part as follows.3                         He
accompanied another certification representative who was completing her training
on a renewal inspection at Daycare on May 18, 2016. (Hr’g Tr. at 13, 57.) During
the inspection,4 he noted that two staff members lacked clearances, which are
important to ensure that no one with criminal histories are endangering the children.
(Id. at 32-33.) Although Department regulations5 require at least half the staff to be
qualified as directors, group supervisors, or assistant group supervisors, seven of the
eight staff members at Daycare qualified only as aides. (Id. at 36-37.) In addition,
a staff member left another staff member alone in a room to supervise five children,
one of whom was under a year old. As a result, Daycare violated regulations
establishing a maximum staff:child ratio and requiring constant supervision. (Id. at
38-39, 46.) Certification Supervisor also observed heaters in the infant/toddler room
that pulled away from the wall, creating a pinch/crush hazard, sharp edges on the
covers to two poles, and screws protruding from a wall. (Id. at 42.) There was also
peeling paint on baseboards in the infant/toddler room and on the wall by the kitchen
door in the preschool/school age room. (Id. at 43.) Certification Supervisor
witnessed numerous pieces of equipment and toys in disrepair, including a bouncy


       3
           Certification Supervisor’s testimony appears on pages 10 through 108 of the transcript.
       4
           The Department cited 43 violations in its May 18, 2016 Licensing Inspection Summary
(LIS), but at the hearing, counsel for the Department advised it was only proceeding on 13 of those
violations. (ALJ Opinion (Op.) at 31.) The ALJ did not find the Department carried its burden as
to all of those violations. Because the other violations are not at issue, we limit our discussion to
only those violations that were sustained by the ALJ.
         5
           For ease of reading and because the parties do not dispute which regulations are at issue,
we omit the Pennsylvania Code citation for each specific regulation violated, opting instead to
refer to the subject matter of the regulations, generally.


                                                 3
seat with a hole in it, a swing that was not stable, a table that was cracked and had
rough edges, a swing and playhouse outside that was cracked and created a
pinch/crush hazard, a bench missing its seat and was sharp and rusty, a plastic rocker
with sharp edges, and a swing set with exposed bolts. (Id. at 44.) During the
inspection, a staff member was unaware a child went to the bathroom alone. (Id. at
47.)   A review of the records revealed a lack of:               documentation to support
tuberculosis screenings for two staff members; a current health assessment for one
staff member, and an initial health report for another; and evidence of mandatory
reporter training, written references, and verification of child care experience for
some staff. (Id. at 49-54.) On cross-examination, Certification Supervisor agreed
that Daycare submitted an acceptable POC to address the deficiencies. (Id. at 71-
72.) On redirect examination, he explained that an acceptable POC is just a proposed
remedial plan; whether Daycare actually corrected the deficiencies would be verified
during a subsequent inspection. (Id. at 98-100.)
       Certification Representative testified as follows.6               She performed the
subsequent inspections of Daycare beginning with an onsite inspection on July 19,
2016,7 the purpose of which was to verify correction of the deficiencies found during
the earlier visit. (Id. at 113.) During this inspection, Certification Representative
found repeat violations related to lack of clearances, insufficient staff present who
were qualified as directors, group supervisors, or assistant group supervisors,
staff:child ratios, lack of supervision, and lack of verification of child care
experience.     (Id. at 115, 117-18, 120-21, 126-27.)             In addition, Certification

       6
          Certification Representative’s testimony appears on pages 112 through 209 of the
transcript.
        7
          According to the LIS, 25 violations were cited during the July 19, 2016 inspection. The
Department proceeded at the hearing on 10 of those violations, 2 of which the ALJ found were not
properly cited. As before, we limit our discussion to the substantiated violations.


                                               4
Representative cited Daycare for unsupervised aides and peeling paint on a water
pipe cover in the infant room. (Id. at 119, 122.)
       On August 30, 2016, Certification Representative performed an allocated
unannounced inspection of Daycare and cited Daycare with nine violations.8 Several
of the violations were considered repeat violations, such as lack of clearances 9 and
insufficient staff present qualified as directors, group supervisors, or assistant group
supervisors. (Id. at 155-56.) Certification Representative also cited Daycare for a
number of staff members who were lacking qualifications for the positions they were
performing, including one staff member who identified herself as an assistant group
supervisor despite a lack of qualifications for the position. (Id. at 155-57.) Daycare
also was cited for having no staff trained in first aid, unsupervised aides, no
individual records for two staff members, and issues with documentation involving
other staff members. (Id. at 157-60.) Finally, Certification Representative cited
Daycare after she observed staff leave four children, ages 3 to 5 years old, alone.
(Id. at 158.) During this inspection, Certification Representative met with Daycare’s
Owner and Director to discuss the violations. (Id. at 160.) Following the August
inspection, Daycare did not submit a POC, which prompted Certification
Representative to send two notices – one in September and one in November 2016
– requesting POCs. (Exs. C-5, C-6.) None were submitted.



       8
          Certification Representative explained that they are to perform at least 10 unannounced
visits of facilities per year of their choosing. These are considered allocated inspections. (Hr’g
Tr. at 154.)
        9
          Certification Representative testified that at least part of this offense was considered a
repeat because it involved missing clearances for the same staff members as before. However,
there were also different staff members discovered without the appropriate clearances in the
August 2016 unannounced inspection. (Hr’g Tr. at 154-55.)



                                                 5
       Certification Representative performed another unannounced monitoring
inspection on November 8, 2016.10, 11 (Hr’g Tr. at 172.) Upon a review of Daycare’s
records, Certification Representative discovered the file for one staff person was
missing a full FBI clearance and a signed disclosure statement. (Id.) Certification
Representative also witnessed a staff member who was supervising two infants and
one toddler leave the infants alone while she took the toddler to the restroom. (Id.
at 174.) She also observed one staff member leave another staff member alone with
seven children, including a young toddler, which violated the staff:child ratio. (Id.
at 175.) In addition, Daycare was cited for lacking health assessments for two staff
members. (Id. at 176-77.)
       Lastly, on December 19, 2016, Certification Representative conducted both a
complaint inspection and an unannounced monitoring inspection at Daycare.12
During the inspection, Certification Representative witnessed a staff member leave
nine children – two young toddlers, five preschool-aged children, and two school-
aged children – alone on three occasions while the staff member left Daycare to get
other children off the bus. (Id. at 196-98.) She also observed a staff member leave
an infant sleeping in a bouncy seat and another crawling on the floor while she
changed the diaper of a third infant in a part of the room where she could not see the


       10
           In the interim, Certification Representative testified that she conducted an unannounced
monitoring inspection on September 6, 2016, at which one violation was cited. (Hr’g Tr. at 169.)
Because the ALJ found the citation was not supported by the evidence, we need not consider it.
        11
           The Department proceeded at the hearing on only 5 of the 13 violations cited in the LIS
for the November inspection, all 5 of which were sustained by the ALJ. Accordingly, we limit our
discussion to those violations.
        12
           A separate LIS was issued for each of these inspections. The LIS for the complaint
inspection listed one violation being cited, which was found properly cited by the ALJ. (Ex. C-
10.) The LIS for the unannounced monitoring inspection listed 11 violations, but the Department
pursued only 3 of those violations at the hearing, 2 of which were found to be properly cited by
the ALJ. (Ex. C-11.) Again, we limit our discussion to those violations sustained by the ALJ.


                                                6
two infants. (Id. at 199.) Certification Representative further testified that a young
toddler left a classroom and was headed towards the door of Daycare when a 7- or
8-year-old child went after the toddler and brought him back to the classroom. (Id.)
Daycare was also cited for having no staff designated as responsible in the director’s
absence and for leaving a 4-month-old infant sleeping in a bouncy seat, which did
not comply with the sleeping position recommended by the American Academy of
Pediatrics and required by Department regulations. (Id. at 203, 206.)
       Daycare’s Director testified as follows.13 He is responsible for overseeing
Daycare’s day-to-day operations and supervising its staff. (Id. at 224.) Regarding
the violations related to having at least half the staff qualified as directors, group
supervisors, or assistant group supervisors, he testified that prior inspectors certified
some of those staff members as assistant group supervisors. (Id. at 232-33, 261.)
He further testified that he believed the staff members were qualified for their
positions, but when asked if there was documentation in their files to support this,
he responded “[a]pparently not.” (Id. at 282-84.) As for the violations related to the
lack of verification of child care experience, education, and training, Director
claimed that he was unaware some staff needed verification of experience because
the prior inspectors certified those staff members. (Id. at 252-53.) He admitted the
violation from the July inspection that those staff members lacked verification of
child care experience, education, and training. (Id. at 279.) He also testified that
two staff members had first aid training, but again he was not sure if there was
documentation to that effect. (Id. at 283-84.) Director accepted responsibility for
not maintaining proper documentation, such as clearances and health assessments,


       13
          Director testified on the second day of the hearing. The transcript of the hearing is
consecutively paginated. Director’s testimony appears on pages 222 through 310 of the transcript.


                                               7
stating he should have followed up to acquire new documentation upon its
expiration. (Id. at 230, 252, 297.)
       Director admitted he was not present for any of the incidents where staff
members allegedly left children either completely alone or with just one other staff
member, but found the allegations “hard to believe” and stated he was “not so sure
about the credibility of some of the inspectors” but had to accept the allegations at
“face value.” (Id. at 234-35, 285, 290-91, 294-95.) He further testified that staff
have been counseled that such behavior is not acceptable and additional staff have
been scheduled to avoid such incidents from occurring again. (Id. at 234, 292.) He
disputed that two infants were left alone while a staff member changed another
infant’s diaper, explaining that there is a short wall separating the two spaces, but it
has always been considered the same room. (Id. at 295.) Director also disputed that
the heaters were loose and introduced photographs depicting the heaters in support.14
(Id. at 237-38.) On cross-examination, he acknowledged that he prepared the POC
which stated that heaters had been “repaired,” but stated he meant “inspected” as
there was nothing wrong with them. (Id. at 257-58.) Concerning the allegations of
the premises or equipment being in disrepair, Director testified those items had been
repaired, replaced, removed, or repainted or were in areas that were not used by any
children. (Id. at 242-43, 246-48, 269-71, 277-78.) According to Director, several
of the staff members who were involved in the various citations are no longer
employed at Daycare.          (Id. at 248-52, 281.)        On cross-examination, Director
acknowledged that Daycare has been subject to the same regulations for 12 years,
but stated there were “different interpretations of those rules.” (Id. at 254.)

       14
         The Department objected to the admission of the photographs as they were not disclosed
on the Unified Prehearing Filing. The ALJ reserved ruling on the objection but ultimately admitted
the photographs. (Hr’g Tr. at 238-40; ALJ Op. at 34.)


                                                8
      B.     ALJ Decision
      Based upon the testimony and evidence presented, the ALJ recommended
Daycare’s appeal be denied. In doing so, the ALJ found the Department carried its
burden of proving 10 of the 13 violations it pursued from the May inspection, 8 of
the 10 violations it pursued from the July inspection, all 9 of the violations it pursued
from the August inspection, all 5 of the violations it pursued from the November
inspection, and 3 of the 4 violations it pursued from the December inspections. The
ALJ noted that Director did not dispute that certain required documentation was
lacking and accepted fault for not tracking documentation more carefully. (ALJ
Opinion (Op.) at 32, 37-38, 40-43, 45.) The ALJ found it did not matter that staff
were no longer employed at Daycare or that the required documentation was
subsequently provided because what mattered for purposes of determining a
violation was whether there was compliance at the time of inspection. (Id. at 37.)
To the extent Director claimed one staff member was not working and therefore did
not need verification, the ALJ rejected this testimony as self-serving and vague as to
the time she stopped working in relation to the citation, and instead credited the
testimony of Certification Representative that she saw the staff member’s name on
a work schedule posted on the wall. (Id. at 44.) The ALJ rejected Director’s claim
that prior inspectors certified certain staff as assistant group supervisors, finding
Director’s testimony not credible. (Id. at 32, 38.) The ALJ stated that “[e]ven if
[Director] sincerely believed some of these staff persons [were] qualified . . . he was
put on notice after [the May inspection] that they [were] not.” (Id. at 38.) Thus, the
ALJ concluded “[i]t was unreasonable for him to continue to believe these staff
persons met the criteria for assistant group supervisors at the time of the July 19,
2016 inspection.” (Id.) The ALJ concluded there was evidence to support the



                                           9
citation for failure to designate a staff person to be responsible in the director’s
absence, citing for support Director’s testimony that he forgot that day. (Id. at 46.)
      The ALJ expressly credited the testimony of Certification Supervisor and
Certification Representative. Based upon that credited testimony, the ALJ found
Daycare was out of compliance with staff:child ratios, and as a result, did not provide
adequate supervision, on a number of occasions. (FOF ¶¶ 65-66; ALJ Op. at 33, 39,
45.) The ALJ further noted that although Director did not observe incidents of
children being left alone, leaving the classroom by themselves to use the restroom,
attempting to leave the premises only to be stopped by another child, and being
placed in a non-recommended sleep position, the credited testimony of the
Department’s witnesses supports these violations. (ALJ Op. at 36, 42, 45-47.)
Furthermore, the ALJ found that although a staff person may have been physically
in the same room as two infants when changing a third infant’s diaper, “[a] staff
person may be in the same room as a child, but not supervising them” and it was
supervision that was required. (Id. at 46.) Concerning the heater, the ALJ found it
was loose from the wall and noted that Director’s testimony that the covers were not
loose “directly contradicts [with] what [Director] wrote in his POC.” (Id. at 34.) As
for the photographs Director introduced, the ALJ found that photos were taken head-
on rather than from the side; thus, they were given “very little weight.” (Id.) The
ALJ also found Director’s testimony about the wall heaters as inconsistent with
Certification Supervisor’s credited testimony that he found crayons behind the metal
covers. (Id.) Related to the violation that the premises was not in good repair or had
peeling paint, the ALJ found that although the areas were not used by any children,
they were considered licensed space, which could have been used, and the
regulations require the premises to be in good condition regardless of whether



                                          10
children access those areas. (Id. at 35, 39.) Whether the items were out of
compliance for several years without being cited or were repaired is immaterial, the
ALJ found. (Id. at 35.) The ALJ similarly sustained the violation involving
equipment that was in disrepair, noting that Director “did not dispute [Certification
Supervisor]’s testimony about this violation and testified only that whatever was
cited was subsequently corrected, replaced, or repaired.” (Id. at 35-36.)
      The ALJ noted that just one violation is enough to revoke a license, but here:

      the ALJ found violations of twelve different regulations listed in the
      May 18, 2016 [Licensing Inspection Summary (LIS)] were properly
      cited; violations of eight different regulations listed in the July 19, 2016
      LIS were properly cited; violations of nine different regulations listed
      in the August 30, 2016 LIS were properly cited; violations of five
      different regulations in the November 8, 2016 LIS were properly cited;
      and violations of three different regulations listed in the December 19,
      2016 LISs were properly cited.

(Id. at 47 (emphasis in original).)
      The ALJ also found that Daycare failed to submit acceptable POCs to correct
the noncompliant items cited. While Daycare did submit acceptable POCs for the
May, July, and September inspections, it did not submit any for the August,
November, or December inspections. (Id. at 48.)
      The ALJ further found that Daycare did not comply with the POCs that were
accepted. For instance, the ALJ noted that Daycare was cited in May for staff health
assessments and indicated in its POC that staff would comply in the future, but
Daycare was cited again for the same violation in November. (Id. at 49.) The ALJ
found Daycare was cited in May and July for violations related to staff qualifications
and submitted POCs stating it would comply moving forward, but was cited again
in August. (Id.) The ALJ similarly found Daycare submitted POCs to address



                                          11
violations related to supervision of aides and clearances, but did not comply, as
evidenced by Daycare being cited again for the same violations. (Id.) Finally, the
ALJ found that Daycare “repeatedly failed to comply with its POCs with regards to”
violations related to staff:child ratios and supervision of children. (Id. at 50.) Based
upon Daycare’s failure to comply with the acceptable POCs, the ALJ found
Department revocation of the Provisional Certificate proper.
      In addition, the ALJ found Daycare was grossly negligent in its operations,
noting that “[i]n this adjudication, the ALJ has found multiple violations of multiple
regulations,” many of which were cited two to five times each. (Id. at 51 (emphasis
in original).) The ALJ stated it was “not only the number of properly cited
violations” that was troubling, “but also the fact that several of them relate to the
same issue” – namely Daycare’s failure to properly supervise children, which was
“[o]ne of the basic functions of a child day care center.” (Id.) The ALJ continued
that “[e]ven more egregious is the fact that [Daycare] committed these violations
after it submitted multiple plans of correction indicating it would always remain
in ratio and properly supervise children.” (Id. (emphasis in original).) According to
the ALJ, “[t]here is a clear pattern of [Daycare] failing to properly supervise children
and adhere to mandatory ratios, even after it pledged to do so,” and “[t]his pattern
. . . constitutes gross negligence.” (Id.) Furthermore, the ALJ found “that several of
the violations pertain to ‘high risk’ issues, including supervision, staff:child ratio,
and compliance with the [Child Protective Services Law (CPSL), 23 Pa. C.S.
§§ 6301-6386].” (ALJ Op. at 51.)
      In conclusion, the ALJ rejected various arguments Daycare made in its
defense. As for Daycare’s argument that it was in a high-crime area, the ALJ stated
this did not excuse its compliance with the regulations. (Id. at 52.) The ALJ also



                                          12
rejected Daycare’s argument that the violations were relatively minor or de minimis
and that Daycare was in substantial compliance. (Id.) Nor did the ALJ find that the
Department was required to issue a second provisional license, as Daycare
contended. (Id.)
       Based upon the findings, the ALJ recommended Daycare’s appeal be denied.
(Id. at 53.) By Order dated January 10, 2018, the Bureau adopted the ALJ’s
recommendation in its entirety. Daycare challenges this Order in its Petition for
Review.


II.    Discussion
       On appeal,15 Daycare argues the Department erred in revoking its Provisional
Certificate. It maintains some of the regulatory violations are incorrect and not
supported by substantial evidence. It further argues it substantially complied with
the regulations, and some infractions were minor. Daycare contends the Department
should have exercised its discretion and issued a second provisional license, instead
of revoking Daycare’s first one.16 It asks the Court to reverse the Order.
       The Department responds that there is substantial evidence to support its
revocation of the Provisional Certificate including Daycare’s 37 violations of


       15
            On appeal, our “review is limited to determining whether constitutional rights were
violated, whether the adjudication is in accordance with the law, and whether necessary findings
of fact are supported by substantial evidence.” Nancy Hadlock’s Family Child Care Home v. Dep’t
of Pub. Welfare, 103 A.3d 851, 857 n.12 (Pa. Cmwlth. 2014).
         16
            Daycare also contends that Certification Representative “has a personal animus towards
[Daycare’s] continued operation.” (Daycare’s Brief at 10.) The heading of Daycare’s argument
section in its brief alleges the revocation of Daycare’s Provisional Certificate “was motivated by
racial discrimination.” (Id. at 9.) Daycare does not develop the argument further. Nor does the
Court see where Daycare asserted discrimination previously. Therefore, because the argument is
neither developed nor properly preserved, we will not address this argument. B.E. v. Dep’t of Pub.
Welfare, 654 A.2d 290, 292 (Pa. Cmwlth. 1995).


                                               13
regulations, failure to submit acceptable POCs as required, failure to comply with
acceptable POCs, and gross negligence in operating the facility. The Department
notes that the Court cannot reverse the ALJ’s findings of fact or credibility
determinations.   It argues Daycare was not eligible for a second provisional
certificate because it was not in substantial compliance with the regulations. Further,
the Department argues 37 violations are not de minimis, and even if they were
corrected, they could still serve as a basis for revocation. The Department asks the
Court to affirm the Order.
      Pursuant to Section 1026(b)(1), (4) of the Human Services Code (Code),
“[t]he [D]epartment . . . shall revoke a license for . . . [v]iolation of or non-
compliance with the provisions of this act or of regulations pursuant thereto[,]” or
for “[gr]oss . . . negligence.” 62 P.S. § 1026(b)(1), (4). This Court has previously
held that even one violation of the Department’s regulations is sufficient to justify
revocation of a license. Nancy Hadlock’s Family Child Care Home v. Dep’t of Pub.
Welfare, 103 A.3d 851, 857 (Pa. Cmwlth. 2014); Altagracia De Pena Family Day
Care v. Dep’t of Pub. Welfare, 943 A.2d 353, 356 (Pa. Cmwlth. 2007). Here,
Daycare admitted to several of the violations. For instance, Director admitted to a
violation from the July inspection involving staff lacking verification of child care
experience, education, and training. (Hr’g Tr. at 279.) In addition, Director admitted
that he did not follow up to ensure staff had the proper clearances, the importance of
which, Certification Supervisor explained, was to ensure that no staff with criminal
histories were employed, which would endanger the children. (Id. at 34, 229.)
      There is substantial evidence to support the ALJ’s findings related to the other
violations based upon the credited testimony of Certification Supervisor and
Certification Representative, who personally observed the violations. We note that



                                          14
for a majority of the violations, especially those dealing with the adequacy of the
children’s supervision, Director testified he was not present and, therefore, had no
personal knowledge of the incidents. As a result, there was no evidence rebutting
the testimony of the Department’s witnesses. While the ALJ was free to reject this
unrebutted evidence, the ALJ did not, and it was within the ALJ’s province to do so.
Nancy Hadlock’s Family Child Care Home, 103 A.3d at 858.
       Moreover, while Director disputed some of the allegations, such as the lack
of properly qualified staff and whether the heater was loose from the wall, “the
relevant inquiry is whether substantial evidence supports the ALJ’s determination,
not whether the record supports a contrary finding.” Id. at 857 n.13. Director
testified that prior inspectors certified certain staff as assistant group supervisors, but
the ALJ did not credit that testimony. (Hr’g Tr. at 232-33; ALJ Op. at 38.) Nor did
the ALJ credit Director’s testimony that the wall heater was not loose. (ALJ Op. at
34.)        Again, the testimony of Certification Supervisor and Certification
Representative, which the ALJ found credible, provides substantial evidence to
support the ALJ’s findings.
       Furthermore, it is irrelevant that Daycare subsequently took remedial steps to
address some of the problems.17 Altagracia De Pena Family Day Care, 943 A.2d at
356 (“Corrective action taken after a regulatory violation is irrelevant for purposes
of determining whether a violation occurred.”). As the ALJ found, the appropriate
standard is whether there was a violation at the time of the inspection. Again, the
credited testimony of the Certification Supervisor and Certification Representative
establishes there was.


       17
           As discussed below, several of the violations went unaddressed, despite the
representations Daycare made in its POCs that they have been remedied.


                                            15
       The ALJ carefully reviewed the evidence presented and prepared a thorough,
well-drafted opinion detailing the factual findings and explaining the
recommendation.        Daycare essentially asks this Court to disregard the ALJ’s
findings, including those related to credibility, but it is well established that “we may
not review the credibility determinations of a fact-finder.” Nancy Hadlock’s Family
Child Care Home, 103 A.3d at 858 (citation omitted). Because there was substantial
evidence to support the findings of the violations, we hold the Department was
justified in revoking Daycare’s Provisional Certificate.
       We note that the Department was also justified in revoking Daycare’s
Provisional Certificate for not submitting POCs or complying with the ones it did
submit. The Department’s regulations provide that the Department may revoke a
certificate of compliance if the legal entity fails to submit an acceptable POC or fails
to comply with an acceptable POC. 55 Pa. Code § 20.71(a)(3)-(4). Here, the
Department’s witnesses testified that Daycare did not submit POCs and presented
evidence that Daycare did not comply with the POCs that it did submit. Given the
detailed discussion of the evidence above, and the number of repeat violations found
in the various LIS reports, there was evidence that Daycare did not comply with the
acceptable POCs that it submitted. Further, Director presented no evidence that it
did submit the missing POCs. These also provide reasons to revoke the Provisional
Certificate. Miller Home, Inc. v. Dep’t of Pub. Welfare, 556 A.2d 1, 3 (Pa. Cmwlth.
1989).18
       Finally, Daycare also argues that it should have been issued a second
provisional certificate because it was in substantial compliance with the regulations

       18
          Because we find substantial evidence to support the ALJ’s findings concerning violations
of the regulations and that Daycare did not submit POCs or comply with the POCs it did submit,
we need not reach the issue of whether Daycare engaged in gross negligence.


                                               16
and a second provisional certification would have given it more time to come into
compliance with the regulations. First and foremost, “there is no legal entitlement
to a provisional certificate.” KC Equities v. Dep’t of Pub. Welfare, 95 A.3d 918, 931
(Pa. Cmwlth. 2014). “[A]ny provisional license beyond the first is discretionary.”
Miller Home, Inc., 556 A.2d at 3 n.12. Second, Section 1008(a) of the Code and
regulations provide for a provisional license only when there has been substantial
compliance with all the applicable statutes, ordinances and regulations. 62 P.S.
§ 1008(a); 55 Pa. Code § 20.54(a). There is nothing in the Code or regulations that
suggests provisional certificates should be issued to afford a means or grace period
for a daycare to come into substantial compliance with the regulations. By their very
terms, the Code and regulations provide that provisional certificates can only be
issued when there already is substantial compliance. Based upon the number of
violations found, several of which were cited multiple times, we cannot hold that the
ALJ erred in refusing to find Daycare was in substantial compliance. Lil Shining
Stars, Inc. v. Dep’t of Human Servs., 140 A.3d 83, 97 (Pa. Cmwlth. 2016);
Burroughs v. Dep’t of Pub. Welfare, 606 A.2d 606, 608 (Pa. Cmwlth. 1992).
       Burroughs is illustrative of what does not constitute substantial compliance.
There, the petitioner, who operated two daycares, challenged a refusal to issue a
certificate of compliance and a cease and desist letter after multiple inspections
revealed numerous violations at both facilities. During the first inspection of 1
daycare, there were 10 violations found. Burroughs, 606 A.2d at 607 n.1. At a
subsequent inspection, there were at least 6 violations,19 followed by 10 violations
at the last inspection. Id. at 607 nn.1-2. At the second daycare, the hearing officer

       19
          There was a second inspection in the interim, but the hearing officer made no specific
findings as to how many violations were found during this inspection. Burroughs, 606 A.2d at
607.


                                              17
found 14, 12, 6, and 18 violations, respectively, during 4 inspections. Id. at 607 n.3.
On appeal, the petitioner argued she was entitled to a provisional certificate, as a
matter of law, because the petitioner substantially complied with the regulations.
We rejected the petitioner’s argument, noting that “[t]he record before us indicates
that the latest inspections of [the petitioner’s] two facilities . . . revealed that the
number of regulatory violations has either increased or remained constant since the
time of the first inspection.” Id. at 608. We additionally noted that “the record . . .
indicates that at least one of those violations, that of maintaining proper staff[:]child
ratios, was noted at seven of the eight inspections, including each of the two latest
inspections. . . .” Id.
       Similar to the appellant in Burroughs, Daycare, here, has not demonstrated
substantial compliance with the Department’s regulations. This is evidenced by the
number of violations cited at each of the inspections and sustained by the ALJ: 12
in May; 8 in July; 9 in August; 5 in November; and 3 in December. Although the
number of violations may have started to decrease, like Burroughs, a number of the
violations were cited multiple times, including four times for violating the regulation
related to compliance with the CPSL; three times for violating the regulation related
to staff qualifications; two times for violating the regulation related to assistant group
supervisor qualifications; three times for violating the regulation related to
staff:child ratios; five times for violating the regulation related to supervision of
children; two times for violating the regulation related to staff health assessments;
and three times for violating the regulation related to staff clearances. (ALJ Op. at
51.) The repeat violations do not show Daycare was in substantial compliance;
rather, they demonstrate Daycare continued to be noncompliant with Department
regulations despite being on notice from prior inspections that those areas were an



                                           18
issue and submitting two POCs incorrectly stating these issues had been addressed.
Thus, we cannot find that the Department abused its discretion in refusing to issue a
second provisional certificate when Daycare remained out of compliance with a
number of regulations.


III.   Conclusion
       In summary, there is substantial evidence to support the ALJ’s findings that
Daycare violated a number of Department regulations, some of which Daycare
admitted to violating. In addition, the record demonstrates that Daycare did not
comply with the POCs it did submit and failed to submit other POCs, as required.
These violations are sufficient to revoke Daycare’s Provisional Certificate.
Furthermore, because Daycare did not establish that it was in substantial compliance
with the Department’s regulations, the Department did not abuse its discretion in
refusing to issue a second provisional certificate. Accordingly, the January 10, 2018
Order is affirmed.



                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                         19
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tullis’s Little Lamb Daycare,            :
                         Petitioner      :
                                         :
                   v.                    :   No. 164 C.D. 2018
                                         :
Department of Human Services,            :
                      Respondent         :

                                      ORDER


      NOW, March 6, 2019, the Order of the Department of Human Services,
Bureau of Hearings and Appeals, dated January 10, 2018, is AFFIRMED.



                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge
