Facts: Our client BP, rehired our firm to represent her on a secondary matter stemming from her original matter she hired us for back in June of 2021. In the summer of 2021, BP’s daycare was shut down by HHSC for a variety of deficiencies. Due to the shutdown, BP was not allowed to operate the daycare in any capacity. In the winter of 2022, HHSC accused BP of operating her daycare in direct violation of her prior adverse action. An HHSC investigator reported that she saw BP and several children exit BP’s daycare one morning and enter BP’s van. When the investigator approached, BP allegedly became hostile. Moments later, several more children were dropped off at the daycare and entered BP’s van. Over the course of HHSC’s investigation, the investigator reported that several parents and one child reported that the daycare was still operational. BP received a second notice of adverse action. The firm requested an administrative review of HHSC’s finding.
Outcome: Prior to the administrative review, Bertolino LLP, submitted several parent statements contradicting and more specifically, correcting the parents’ prior statements to HHSC investigators. Further, the firm provided additional statements from BP’s neighbors around the daycare stating that they had not seen any children inside the daycare and that they believed the daycare to be closed. Lastly, the firm provided evidence that the daycare had not even had any electricity since January of 2021. Statements from BP’s electrician noted that he did not fix the issue until April of 2022 and when he entered the daycare to remedy the issue, the daycare was uninhabitable due to the absence of power for so many months. In addition to the evidence presented and argued during the review, the firm also noted that a majority of the witnesses that HHSC spoke to during their investigation spoke primarily Spanish. Further, one of the children that HHSC noted in their report as stating that the daycare was operational was five years old, nonverbal and who primarily understood Spanish not English. Therefore, the firm argued that their statements were not only misinterpreted but were not provided with full context in that children were allowed to be around the daycare, just not inside the daycare. This very specific detail was lost in translation by many witnesses and used to HHSC’s advantage. In closing the firm argued that the one incident where HHSC saw children coming out of the daycare was isolated in nature and that BP was merely transporting children to and from school. After the review, HHSC overruled their original finding and the matter was dismissed.
