Case 2:11-cv-00084 Document 338-32 Filed in TXSD on 02/11/15 Page 1 of 4 TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES COMMISSIONER Anne Heiligenstein January 7, 2011 Cal Salls, Executive Director of Daystar Residential, Inc 3926 Bahler Manvel, TX 77578 Operation #516827 Daystar Residential Inc. Dear Mr. Salls: Re: Intent to Revoke Permit for Operation #516827, Daystar Residential, Inc. REGULAR AND CERTIFIED MAIL, RETURN RECEIPT REQUESTED # 7010 0290 0001 7435 5774 On 12/29/1995, the Department of Family and Protective Services (DFPS) issued Daystar Residential, Inc. (Daystar) permit #516827 to operate a Residential Treatment Center located at 4103 Bedynek, MANVEL, TX 77578. This letter shall serve as notice that DFPS intends to revoke that permit. Texas Human Resources Code §42.072(a) authorizes DFPS to take adverse action against an operation that does not comply with the minimum standards, rules, Chapter 42 of the Texas Human Resources Code, or the specific terms of the permit. 40 Texas Administrative Code (TAC) §745.8605 provides specific situations for when DFPS may take remedial action against an operation. 40 TAC §745.8607 sets forth the factors that DFPS assesses when deciding what type of remedial action to take against an operation. DFPS recently placed Daystar on probation based in part on a single serious deficiency, a sexual abuse finding. On 11/5/10, DFPS discussed with you the reasons and conditions of the probation, which was documented in a letter dated 11/8/10. This letter is attached and incorporated by reference. In addition to the grounds provided in that letter, a child died on 11/5/10 during a restraint at Daystar. The ensuing investigation of the incident resulted in one child abuse finding and two child neglect findings against two individuals who were working under the auspices of your operation during the implementation of this restraint. In addition to Child-Care Licensing 701 W 51ST ST, AUSTIN, TX 78751 1 of 4 P002174 Cause No. 2:11-cv-00084 Case 2:11-cv-00084 Document 338-32 Filed in TXSD on 02/11/15 Page 2 of 4 Cal Salls, Executive Director of Daystar Residential, Inc January 7, 2011 Page 2 the child abuse and neglect findings, Daystar was cited for several deficiencies related to this child's death, including: failing to use the minimal amount of necessary force when implementing the restraint; failing to release the child from the restraint immediately during an emergency health situation; failing to monitor the child for signs of physical distress, ample respiration, and circulation; using a restraint that interferes with the child's ability to vocalize his distress during the restraint; inadequate determination that a restraint was warranted; failing to make de-escalation attempts prior to initiating the restraint; failing to implement a restraint that minimized the risk of harm to the child; and obstructing the child's airway. The investigation findings letter for this restraint was issued on 1/7/11, which is attached and incorporated by reference into this letter. DFPS evaluates the criteria listed in 40 TAC §745.8607 when determining what kind of remedial action to impose on a noncompliant operation. Daystar has previously been placed on corrective action, and DFPS now intends to revoke the operation's permit pursuant to one or more of the 40 TAC §745.8607 criteria, specifically (1) the severity of the deficiencies; (2) the repetition of several deficiencies; (5) the operation's failure to demonstrate responsibility for compliance with minimum standards, rules and laws throughout the operation; (7) the operation's poor compliance history; and (8) the degree and/or immediacy of danger or threat of danger that the operation poses to the health or safety of children. DFPS has determined that Daystar poses a risk to the health and/or safety of children. Please refer to 40 TAC §745.751 for a listing of factors that DFPS considers when determining whether an operation poses an immediate threat to the health and/or safety of children. DFPS has determined that the operation poses an immediate risk based on the severity and circumstances of the two child abuse findings and two child neglect findings, including the sexual abuse finding, and the recent physical abuse and two neglectful supervision findings that resulted in the death of a child in care; the seriousness of the injuries suffered by these victims; the repetition of deficiencies related to restraints; and the operation's overall compliance history. Therefore, Daystar must discontinue operating pending the outcome of a due process hearing, if the operation has not yet done so. Texas Human Resources Code §42.072(e) and 40 TAC §§745.8875 and 745.8877 require that Daystar cease operating unless a district court in Travis County or the county in which the operation is located grants an injunction allowing Daystar to operate pending the appeal. Within five (5) days of receipt of this letter, you must send a copy of this letter by certified mail to the parents or managing conservator of each child currently enrolled in the operation, if any. Copies of the certified receipts must be provided to DFPS within five days after you receive them. You must also notify anyone seeking to enroll a child in the operation of this action. You have the right to request an administrative review on behalf of Daystar. This request must be made within 15 calendar days of receipt of this letter. The purpose of the administrative review is for you to have an opportunity to discuss the revocation with a designated member of Child-Care Licensing 701 W 51ST ST, AUSTIN, TX 78751 2 of 4 Case 2:11-cv-00084 Document 338-32 Filed in TXSD on 02/11/15 Page 3 of 4 Cal Salls, Executive Director of Daystar Residential, Inc January 7, 2011 Page 3 the DFPS staff and to provide additional information concerning the disputed issue. To request a review, you may write Larry Spiars, P. O. Box 149030, MC E-550, Austin, TX 78714-9030. If you make a timely request for an administrative review, you or your representative may inspect a redacted copy of the investigation records, related materials, and any video or audio recordings prior to the review. If you do not make a request for an administrative review within 15 calendar days of receipt of this letter, then any right Daystar has to an administrative review will be waived. At which time DFPS will issue you a notice letter explaining Daystar's remaining due process rights. For additional information concerning administrative reviews, please refer to 40 TAC §§745.8809 8817. Daystar will be prohibited from applying for another child-care permit for a period of five (5) years after this revocation takes effect. Each controlling person with Daystar will be designated as controlling and will receive a letter offering an administrative review on that designation. A person's designation as a controlling person will be sustained when the revocation and the due process for a designated controlling person are final. A sustained controlling person cannot have a permit to operate a residential child-care operation, be a controlling person, or be employed in any capacity in a residential operation for a five-year period. This notice must be posted in a prominent place (or places) near each public entrance as soon as you receive it. Sincerely, DARLA SHAW Director of Residential Licensing (512) 438-3243 Enclosure(s): (1) Letter of 11/8/10 from Peggy Aldredge placing Daystar on Probation (2) Letter of 1/7/11 from Sherrece Haywood notifying Daystar of the findings of the restraint investigation cc: Sasha Rasco, Asst. Commissioner of Licensing Peggy Aldredge, RC Manager Child-Care Licensing 701 W 51ST ST, AUSTIN, TX 78751 3 of 4 Case 2:11-cv-00084 Document 338-32 Filed in TXSD on 02/11/15 Page 4 of 4 Cal Salls, Executive Director of Daystar Residential, Inc January 7, 2011 Page 4 Heather Shiels, Director of Residential Contracts Child-Care Licensing 701 W 51ST ST, AUSTIN, TX 78751 4 of 4 Case 2:11-cv-00084 Document 338-33 Filed in TXSD on 02/11/15 Page 1 of 4 TEXAS DEPARTMENT OF FAl\ULY AND PROTECTIVE SERVICES C O MMISSIO NER Anne Heiligenstein January 7, 2011 Cal Salls 3926 Bahler Manvel, TX 77578 Operation #516827 Daystar Residential Inc. Investigation# 1372096 Dear Mr. Salls: Your operation, Days tar Residential Inc. located at 4103 Bedynek, MANVEL, TX 77578, was recently investigated because the Department received a report concerning possible deficiency or deficiencies of the Minimum Standard Rules or the law. This was a self-report made on 11/05/2010 in compliance with the minimum standards. Specifically, the report states the following that led to this investigation: Allegations of a child death. The applicable laws, administrative rules or Minimum Standard rules have been evaluated and findings are below: Child-Care Licensing 1425 E 40TH ST, HOUSTON, TX 77022 1 of 4 P002175 Cause No. 2:11-cv-00084 Case 2:11-cv-00084 Document 338-33 Filed in TXSD on 02/11/15 Page 2 of 4 Cal Salls January 7, 2011 Page 2 Inspection Start Date Standard/Rule Description Specifics Deficient? Comply By TA Given The operation staff failed to use the minimal 748.2551 {c)(2) amount of EBI Implementation-Caregiver necessary force must use the minimal when amount of reasonable and implementing the necessary physical force emergency behavior intervention. y 01/07/2011 N 748.2553(2)(A) EBI Release-Child released from personal restraint immediately in emergency health situation and treatment obtained immediately Operation staff failed to release a child from a personal restraint immediately when an emergency health situation arose. y 01/07/2011 N 748.2601 (a) Personal Restraint Monitor-Qualified caregiver monitors child for signs of physical distress & ensures ample respiration, circulation, well-being The operation staff failed to monitor a child for signs of physical distress and failed to ensure ample respiration and circulation. y 01/07/2011 N 748.2605(a)(4) Personal Restraints Prohibited-Restraints that The operation staff implemeted a restraint which y 1 N 2 of 4 Case 2:11-cv-00084 Document 338-33 Filed in TXSD on 02/11/15 Page 3 of 4 Cal Salls January 7, 2011 Page 3 Caregiver did not adequately determine there was an 748.2455(a)(2) emergency Emergency Behavior Intervention-Basis for EBI situation which is an emergency situation warranted the or to administer medication use of emergency behavior intervention. y 01/07/2011 N 748.2551 (a) EBI Implementation-Must be an appropriate response to the behavior demonstrated, and de-escalation must have failed The operation staff did not adequately make de-escalation attempts prior to initiating an emergency behavior intervention. y 01/07/2011 N 748.2551 (c)(1) EBI Implementation-Caregiver must minimize risk of physical discomfort, harm, or pain to the child The operation staff failed to implement a restraint that minimized the risk of harm to the child. y 01/07/2011 N 748.2605(a)(2) Personal Restraints Prohibited-Restraints that airway Restraints that obstruct the child's airway are prohibited. The operation staff implemented a restra1 a was prohibited. y 01/07/2011 N 3 of 4 Case 2:11-cv-00084 Document 338-33 Filed in TXSD on 02/11/15 Page 4 of 4 Cal Salls January 7, 2011 Page4 748.1101 (b )(4) Children's rights-Adhere to the child's rights to be free of abuse, neglect, and 11/06/2010 exploitation as defined in Texas Family Code 261.401 This standard was found to be deficient because the child was abused and neglected. y 01/07/2011 N If an inspection was conducted as part of this investigation, you received an inspection report form. Failure to maintain compliance on an ongoing basis may result in remedial actions. If you disagree with the actions or decisions of the licensing staff, you may request an administrative review within 15 days of the receipt of this letter by writing Peggy Aldredge, 1425 E 40th St, Houston, TX 77022 (713) 696-8073. If you have any other questions or need additional information, please contact me. Licensing (713 )696-80 74 cc: Burnett MaGee, RCCL; Alicia Courtney, RC Supervisor; Melanie Trevino, Contracts 4 of 4