In determining whether to take disciplinary action against a licensee or to renew a license, the Department may consider the licensee's past history from other licensing periods, and is required to consider a pattern of violations of applicable child welfare statutes or rules as evidence that a licensee is unable to meet the physical, emotional, social, educational, or psychological needs of children. See A.A.C. R6-5-7490.B.

This letter constitutes notice under A.R.S. § 8-506.01, and A.A.C. R6-5-7421, that the Department is denying the application for renewal of ABR's child welfare agency license. This denial is effective on September 15, 1998, (20 days after the postmark date of this letter) unless ABR timely appeals the denial pursuant to the process described below. (See A.A.C. R6-5-7422).

Adverse action taken: Denial of application for renewal of child welfare agency license.

Effective date: September 15, 1998.

The reasons supporting the action taken, with citations to statutes and rules justifying the action. The Department is denying ABR's application for renewal of its license for the following reasons:

I. VIOLATIONS RELATING TO NICHOLAUS CONTRERAZ

ABR violated licensing rules and standards (A.A.C. R6-5-7420A.1.) pertaining to its treatment of Nicholaus Contreraz, specifically:

On numerous occasions, described more fully in Exhibit 1 to this Notice, ABR physically abused Nicholaus Contreraz, forced him into uncomfortable physical positions for periods of time inappropriate to his health, and verbally abused, ridiculed and humiliated him by forcing him to carry a bucket with his vomit and clothes on which he had defecated, by periodically forcing his head into the bucket to smell the vomit and defecation, by forcing him to eat meals while seated on the toilet, by verbally humiliating him rather than responding to his complaints and inability to perform physical exercises, by dragging or carrying him in a wheel barrow when he collapsed from exhaustion and illness, by ignoring his cries for help and his medical symptoms including his loss of appetite, and accusing him of faking illness, forcing him to eat alone, and laughing at him when he vomited, by forcing him to do physical exercises, by forcibly moving him when he was too ill and weak to perform the exercises alone, by depriving him of access to and an opportunity for toileting and by ignoring his suicide threats;

On numerous occasions, described more fully in Exhibit 1 to this Notice, ABR failed to provide health services to evaluate, diagnose, treat or provide consultation to Nicholaus Contreraz for his medical conditions and ignored his symptoms and complaints of hyperventilation, breathing difficulties, frequent vomiting, diarrhea and uncontrolled defecation, falling and collapsing while exercising, phlegm, coughing, fever, chills, aches and pains, shortness of breath, weight loss, respiratory distress, fatigue and exhaustion and completely ignored his repeated suicide threats and expressed death wishes. Further, Nicholaus' medical conditions and complaints are either inadequately documented in or completely missing from his medical records contrary to and in violation of the provisions of A.A.C. R6-5- 743S, and 7428.A.13 & B. Instead, the medical records at ABR indicate a healthy child and completely ignore the symptoms and appearance of Nicholaus in the last weeks of his life. No consideration was given to Nicholaus' physical symptoms as indicators of the need for medical treatment. Instead, he was repeatedly cleared for strenuous physical activities and at one time was given a paper bag to treat his breathing difficulties. Despite his medical symptoms, complaints and his discernible deterioration, Nicholaus was not seen by a medical physician for the last eight days of his life;

Location of the unusual incident;

1. Name and address of any child involved in or observing the incident;

2. Name of the agency if different from the facility;

3. Name, title, and address of any staff involved in or observing the incident;

4. Name and address of any other person involved in or observing the incident;

5. Date of the incident;

6. Time of the incident;

7. Description of the incident; and

8. Licensee's response to the incident. "

On numerous occasions, more fully described in Exhibit 1 to this Notice, ABR failed to make records of unusual incidents relating to Nicholaus Contreraz including approximately 70 blunt force injuries to his body consisting of abrasions and contusions on his chest, abdomen, back, shoulder, chin, knees, arm and head which were inflicted from "assisted exercise" and "restrictive behavior management" incidents. Forced barrel rolls, forced push ups, forced jumping jacks, and various incidents in which Nicholaus collapsed or repeatedly fell during exercises, incidents in which he was injured or injured himself and in which he defecated on himself or vomited are not reported in ABR's records of unusual incidents.

The maltreatment of Nicholaus Contreraz, as described in this Notice and in Exhibit 1, was never reported to the Department as required by this rule and by ABR's own child abuse reporting policy as set forth in A.A.C. R6-5-7435.A.I. Further, the Department was never notified of the numerous injuries suffered by Nicholaus, including those for which he received medical treatment. and was never notified of his suicide threats or need for psychiatric intervention.

ABR failed to follow its plans, policies and procedures as they related to Nicholaus Contreraz as described above and in Exhibit 1 to this Notice, including the failure to record and notify appropriate authorities of the maltreatment of Nicholaus, the failure to take precautions to prevent further risk to Nicholaus, the failure to evaluate the retention of staff who committed or allowed maltreatment of Nicholaus (A.A.C. R6-5-7434 and R6-5-7435); the failure to evaluate and diagnose, treat and provide health service consultation for Nicholaus and ignoring his complaints of illness and pain and failure to document his persistent health complaints (A.A.C. R6-5-7452); the failure to comply with its behavior management policies and procedures relating to not threatening or subjecting a child to maltreatment, abuse, neglect, or cruel, unusual or corporal punishment (A.A.C. R6-5-7456); the failure to abide by its policy of not denying, restricting or monitoring the communications of Nicholaus with his parent, social worker or probation officer (A.A.C. R6-5-7448); and other failures as described in Exhibit 1 to this Notice.

These violations pertaining to the care and treatment of Nicholaus Contreraz, and other violations described below, are evidenced by the information set forth in Exhibit 1 to this Notice, which is incorporated herein by reference.

II. VIOLATIONS RELATING TO RESIDENTS OF ABR

In addition to the violations noted above and in Exhibit 1 to this Notice involving Nicholaus Contreraz, a pattern of violations involving other residents at ABR demonstrates that ABR has repeatedly:

1. Violated A.A.C. R6-5-7456.C.2., 3. and 4. (see rule quoted above) by threatening children and allowing them to be subjected to maltreatment, abuse, neglect, or cruel, unusual, or corporal punishment including physical and verbal abuse, ridicule and humiliation and denial of opportunities for toileting:

2. Violation of A.A.C. R6-5-7434.A.,B.,E.,F.,G. and H (see rule quoted above) by failing to record, maintain and/or report unusual incidents including injuries sustained by residents (victim "A" name redacted), (victim "B" name redacted), (victim "C" name redacted), (victim "E" name redacted), (victim "D" name redacted) and (victim "F" name redacted), as described above, and additional incidents of:

1) (victim "H" name redacted) on October 26, 1997;
2) (victim "I" name redacted) on January 17, 1998, March 13, 1998 and May 5, 1998;
3) (victim "J" name redacted) on Janeiro 8 & 10. 1998;
4) (victim "K" name redacted) on April 6. 1998; and,
5) (victim "F" name redacted) in August 1997;

1) (victim "L" name redacted) on May 8, 1998 for a contagious disease and a head injury which resulted in loss of consciousness and hospital admission; and,

2) (victim "M" name redacted) for;

a. a swollen testicle on January 9, 1998, for which (victim "M" name redacted) was taken to a health care facility;
b. chest pains and vomiting blood on January 19, 1998, for which (victim "M" name redacted) was transported to a health care unit;
c. vomiting blood on January 20, 1998, which required emergency medical care;
d. bruised ribs on January 28, 1998, which required emergency medical care;
e. severe cracking of skin on both sides of the inner thighs resulting in bleeding and pain to the touch on February 26, 1998, which required transportation to an urgent care facility;
f. an infected ingrown thumb nail on March 20, 1998, for which (victim "M" name redacted) was taken to an urgent care facility;
g. hospital treatment for difficulty breathing, a swollen throat and numbness in arms on March 21, 1998, for which (victim "M" name redacted) received hospital treatment;
h. a sore on his mouth on March 23, 1998, which necessitated treatment at a health care facility;
i. treatment for Coxsackie Virus on March 24, 1998, for which (victim "M" name redacted) received urgent care treatment at a medical center; and,
j. emergency medical services on May 21, 1998, for lower back pain;

3. Violation of A.A.C. R6-5-7452.A. (see rule quoted above) by failing to comply with mental and health care requirements for children in its care consisting of those incidents described above and by:

4. Violation of A.A.C. R6-5-75116.C.: "A licensee shall cooperate with the Licensing Authority's monitoring functions. Cooperation includes: . . . 2. Providing the Licensing Authority with information or documentation requested. "

As described in Exhibit 2, ABR failed to cooperate with the Licensing Authority by providing information or documentation requested and/or failed to provide such in a timely manner.

Specifically:

The above demonstrate that ABR has violated and is not in compliance with licensing rules and standards and Arizona state statutes; has refused to cooperate with the Licensing Authorities in providing information required by applicable rules and information required to determine compliance with rules cited herein; and, is unable and unwilling to meet the physical, emotional, social, and psychological needs of children in its care (See A.A.C. R6-5-7420.A.);

5. Violation of other rules

The violations described above and as described in Exhibit 1 and Exhibit 2, incorporated herein, justify denial of ABR's license application. The Department, has in addition to and consistent with the mandate in A.A.C. R6-5-7420.B, also considered ABR's past history from other licensing periods and its pattern of violations of applicable child welfare statutes and rules, as cited herein and as described in Exhibits 1 and 2. ABR, by its actions and inactions, has demonstrated that it is unable or unwilling to meet the physical, emotional, social, educational, or psychological needs of children in its care and has willfully violated the provisions of A.R.S. §8-501 et seq. and applicable rules and licensing standards.

Additional violations of the Department's standards of care, licensing rules and standards and Arizona statutes may be described in Exhibits 1 and 2 to this Notice. The Department reserves the right to rely on those described violations as additional bases for the denial of ABR's license application. In addition, allegations and facts may be made known subsequent to the issuance of this Notice. The Department reserves the right to supplement this Notice with additional violations described in an Amended Notice.

Procedures to contest the adverse action

ABR may appeal the Department's decision denying its application for renewal of its license by filing a Notice of Appeal with the Department, to the attention of Wayne Wallace, Manager, Licensing Unit, ACYF, Department of Economic Security, 1789 W. Jefferson, Phoenix, AZ 85007, no later than 20 days after receipt of this letter. (See A.R.S. §8-506.01). A Notice of Appeal shall contain the information listed in A.R.S. §41-1092.03.B. as required by A.A.C. R6-5-7422, consisting of the following:

1. identification of the party;
2. the party's address;
3. the agency involved and the action being appealed; and
4. a concise statement of the reasons for the appeal.

Upon receipt of a Notice of Appeal, the Department will notify the Office of Administrative Hearings (OAH). OAH will schedule and conduct a hearing as prescribed in A.R.S. Title 41, Chapter 6, Article 10. If ABR timely appeals, the denial of ABR's license application is not effective until OAH issues a final decision affirming the denial. (See A.A.C. R6-5-7421.D.2.)

Settlement Conference

If ABR files a timely appeal, ABR may request an informal settlement conference with the Department pursuant to A.R.S § 41-1092.03.A. and A.R.S. §41- 1092.06, as prescribed in A.A.C. R6-5-7421.B.5.

Sincerely,

Wayne Wallace
Manager, Licensing Unit

Justice for Nicholaus