Oregon kids at 'elevated risk' of harm inside day cares

By Brad Schmidt / The Oregonian/OregonLive

A 4-year-old with autism walks out the front door of a day care center and into the parking lot of a nearby fast-food restaurant, only to be rescued by a drive-thru customer.

A 3 ½-year-old falls from a climbing structure designed for older children. The boy dangles off the ground, tangled in a lanyard that his caretaker improperly allowed him to play with.

A 3-year-old is removed from classmates and placed outside in an apparent act of discipline. The boy stands isolated on a dark February night, with temperatures hovering only a few degrees above freezing.

Each of these day-care horror stories stems from Iris Valley Learning Center, which amassed one of the worst health and safety records in Oregon over a decade based on sheer volume of state rule violations.

The state Office of Child Care tagged Iris Valley with 102 violations from 2007 through 2016. Eight children broke bones while attending the Keizer day care, the largest number of fractures at any provider during that period, according to state records. Inspectors found grimy toys, dirty carpets, a filthy kitchen and too few teachers.

And yet, until lurching to action this spring, Oregon’s child care office allowed the center to keep serving young children. The only consequence for a mountain of violations in the past decade: a total of $325 in fines.

Oregon’s slow response to shut down Iris Valley Learning Center exemplifies the hidden fissures lurking within an oversight system responsible for keeping kids safe.

Problems within the state agency that provides oversight of childcare facilities have mounted for years with little action, according to an internal state audit from 2016. The report, the contents of which have remained private until now, depicts a regulatory environment chock-full of ineffective safeguards and bureaucratic failures that jeopardize child safety.

Oregon’s oversight system “functions outside the zone of safe operations” and poses an “elevated risk for major incidents of child harm,” warned the report, obtained by The Oregonian/OregonLive through a public records request.

The audit uncovered troubling inconsistencies in Oregon’s response to known problems, faulting questionable decision-making by regulators and inadequate rules benefiting bad day-care providers. It said the state should consider lowering the bar to suspend or close flawed facilities.

And it said regulators should act with the “highest” urgency in adopting these changes.

Office of Child Care officials responded by hiring two additional employees and the state named a new director. But officials initially rebuffed recommendations to strengthen key rules. Nearly 18 months later, the agency still has not fully implemented 17 of 25 audit recommendations, records show.

Officials have not changed a single regulation to crack down on bad providers, as the audit recommended. And they waited until April to form a committee to pursue legislative changes, meaning nothing will happen until 2018 at the earliest.

“We’re taking action,” said Dawn Woods, director of the Office of Child Care since November 2015. “We’re taking this seriously.”

In the case of Iris Valley, Oregon regulators shut down the day care this spring, marking just the second time in 14 years that they’ve revoked the license of a large center.

Iris Valley was certified to care for up to 117 children at any given time, making it one of Oregon’s biggest providers. But size wasn’t why the facility racked up so many state rule violations.

Of the dozens of facilities larger than Iris Valley, none came close to its prodigious record of problems. In fact, only one facility in the past decade recorded more violations, and that smaller center closed seven years ago when regulators refused to renew its annual license, according to officials.

Despite Iris Valley’s poor performance, Oregon funneled more than $425,000 to the center in 2016 alone to subsidize care for low-income families.

Connie Williams, Iris Valley’s owner, said the state’s forced shutdown of her facility was “completely unexpected.”

Williams acknowledged problems but also pointed to faithful customers who happily kept kids in care. “That tells you that we weren’t all bad,” she said.

Adrienne Swider only remembers the bad.

She enrolled her two boys at Iris Valley Learning Center in 2008, unaware of its troubles. The following year, Swider’s son, who has autism, wandered out the front door before a stranger at the next-door Arby’s found him.

Swider pulled her kids out of the facility, fearful for their safety and relieved her oldest was unharmed.

Told of Iris Valley’s ballooning list of violations during the past decade, Swider said she could not believe how much state regulators tolerated.

“Shame on them,” she said. “How dare they?”

Damning audit

The Office of Child Care oversees some 4,200 day cares in Oregon, including about 1,200 large commercial centers and about 3,000 registered or certified in-home providers. Their combined capacity reaches almost 106,000 kids, or nearly half of all children statewide too young for kindergarten.

The oversight bureaucracy rarely receives public attention. But it badly needs repair.

Leaders from Oregon’s Early Learning Division, which oversees the state childcare agency, asked for an audit in 2015 after becoming concerned about “chronically-stressed” operations in the legal and compliance unit. The group in question was responsible for fining, suspending and shutting down rule-breakers.

The Department of Education, which houses the Early Learning Division, finished the audit in January 2016. State officials appointed a new leader in partial response to a finding of “impaired trust” within the childcare office, according to the audit. The former top official, Kelli Walker, told The Oregonian/OregonLive that her position was reclassified within the agency and she was not informed about the reason for her reassignment.

Among the positives from the audit, employees of the “significantly understaffed” legal team were highly skilled, dedicated and collaborative, according to the audit. Sanctions against providers rarely were challenged or overturned, indicating that the team didn’t overstep its authority. During four months of observation in 2015, the auditor didn’t find any major failure leading to child harm, in part because of the “expertise and diligence” of regulators.

But the audit’s praise was overshadowed by the risks of harm that it identified.

The auditor spot-checked files for 41 facilities that received at least one complaint or had been investigated by police or child protective services. The review asked three questions: Did the state make the right call on whether rules were broken? Were records correct and complete? And did the facility’s history of complaints suggest regulators could have acted faster or more aggressively?

One out of every five investigations fell short on at least one of those questions.

The audit cautioned that those results do not mean investigators make mistakes 20 percent of the time; that rate was based on a small sample of cases focused on particularly bad facilities. But the report labeled Oregon’s failure rate “concerning” and said Oregon should strive for mistakes in no more than 1 in 100 cases.

Woods, the childcare director, said the agency has instituted new checks to ensure more consistent decisions.

“We need more quality assurance in our work,” she said.

The audit also found several other “breakdowns” in decision-making.

Agency officials marked some allegations as “unable to substantiate” simply because the provider denied them, according to the audit. That happened even with allegations supported by visible evidence such as bruising, bite marks or dislocated elbows.

Rather than continue this “ineffectual” system of proof, the audit recommended, the agency should consider letting investigators label an allegation “likely” to be true.

The Office of Child Care wasn’t interested in that recommendation. Woods, in a January 2017 document sent to the auditor, said the change would require new legislation that her agency did not plan on pursuing.

The audit also called for “stronger responses” when providers don’t keep enough caregivers on duty to protect children from harm. One day care, for example, racked up five violations for short staffing, according to the audit. Later, the state found unsupervised children at the facility engaged in inappropriate sexual behavior.

If a child gets hurt at a day care with a documented pattern of inadequate staffing, the audit warned, the parents could sue the state for failing to take action.

The Office of Child Care declined to make changes. “Management does not plan to implement a stronger response,” Woods wrote in her answer to the auditor.

The audit also recommended that regulators consider shutting down facilities more quickly.

One day care was cited by the state for a worker slapping a child, for not attending to a developmentally challenged child left in soiled clothes, and for not stopping children engaged in sexual behavior, according to the audit. The violations happened over the course of 2 ½ years.

At a different facility, during a six-month period, one child left the building and wandered next to a busy street, the report found. Another child received second-degree burns in a separate incident.

At a third facility, one child needed stitches, another suffered a “dislocated elbow caused by staff,” and the business later violated staffing requirements, according to the audit. Those problems occurred in less than three months.

Each of the three facilities ultimately closed down, although the audit doesn’t disclose why.

“Management should consider suspending or closing facilities for a lower threshold of problems than has previously been the case,” the audit recommended.

The Office of Child Care disagreed.

“Current court rulings do not support this option,” Woods wrote.

Serious concerns

Iris Valley is a case study of the kinds of flaws the audit uncovered in Oregon’s oversight system.

The Keizer day care racked up six violations in 2006, its first year of operation. It got worse after that.

In 2007, the number of violations hit 16. It climbed to 20 the next. In 2011, violations ballooned to 23, or nearly two per month on average.

“That’s terrible,” said Swider, the mother whose son was found in a parking lot in 2009. “That’s that many kids that have had a traumatic experience in somebody else’s care.”

Richard Riggs, the Office of Child Care’s legal administrator since this year, acknowledged that some of the facility’s past violations were “very serious.” But he declined to pass judgment on the state’s treatment of Iris Valley over the past 11 years because neither he nor Woods were in their leadership roles at the time.

“Saying whether we stand by those past decisions, it’s not really a fair question to us,” he said. “Because those decisions were made without us.”

The violations the state documented at Iris Valley ran the gamut.

The driver of a day-care van refused to pick up a child from school. A staff member called a child a brat. A staff member failed to follow mandatory reporting requirements concerning child welfare. A child got lost during a field trip to the zoo.

There were problems with inaccurate records. Employees kept Tylenol within reach of children. A single teacher was left to watch 13 four-year-olds, violating staffing requirements.

And then there were the allegations that weren’t proven.

An employee allegedly hit a child with a belt on the knee. The facility denied it. An employee allegedly threatened to withhold food. The facility denied it. An employee allegedly told children they’d be sent to an orphanage if their parents didn’t pick them up on time. The facility denied it.

This February, an employee allegedly placed a child outside, at night, as discipline. The facility denied it. The director provided a statement to authorities saying the boy was upset and had been taken outside to calm down. The teacher remained just on the other side of an ajar door, Iris Valley said.

At first, state regulators didn’t substantiate the February incident. But after receiving additional information, regulators decided the complaint was valid.

The Office of Child Care decided to shut down Iris Valley one month later.

In a sternly worded letter, regulators said the facility had amassed a serious history of non-compliance dating to 2006.

“Each instance of non-compliance is an independent basis” for closing a facility, the letter read. “These violations, individually and together, raise serious concerns” about the center’s ability and willingness to follow rules and keep kids safe.

Iris Valley had a total enrollment of about 330 children and stayed open from 5 a.m. to midnight, providing care for families with challenging work schedules.

Williams, Iris Valley’s owner, initially insisted in an interview that regulators cited Iris Valley for “little things.”

After being read a list of items that would appear in this story, she said: “I would not call any of that little. But I believe each one of them could be easily explained.”

Williams took issue with the state’s decision to shut her down rather than imposing other types of penalties.

“They can charge you fines,” Williams said. “They can put you on probation. They have steps.”

Regulators didn’t say what led to their sudden switch in approach toward Iris Valley, which came two months after The Oregonian/OregonLive requested a list of complaints at facilities statewide.

That data show Iris Valley had far more total complaints, including unsubstantiated and invalid allegations, than any other facility. Woods said answering the newsroom’s request was the first time her agency compiled a sortable list of facilities and their number of complaints.

She said The Oregonian/OregonLive’s inquiry played no factor in the decision to shut down Iris Valley.

Instead, Woods said, her agency looked at Iris Valley’s “holistic picture.” Woods also said regulators in February and March received “concerning information from a partner agency that led to” closing Iris Valley. She declined to elaborate, citing confidentiality provisions tied to abuse and neglect allegations.

Woods said the Office of Child Care works with troubled providers to help them comply with state rules. In Iris Valley’s case, she said, regulators decided the center could not make the changes needed to comply with licensing requirements.

Although Iris Valley became just the second center shut down through a license revocation, regulators in the past also have shuttered at least two other facilities by refusing to renew annual licenses. Officials could not say how frequently that happens.

“We do not take it lightly,” Woods said of closing large childcare centers. “It was an incredible hardship on families” at Iris Valley.

Woods defended the agency’s timing. She said there previously wasn’t a reason to close Iris Valley, which had 39 more rule violations from 2007 through 2016 than the next-highest facility still operating in the state.

“I think we acted when we felt we should,” she said. “I’m not saying we’re an organization that isn’t looking to continuously improve.”

Pursuing action, in 2018

State regulators have abruptly welcomed fixes to their oversight system.

The Office of Child Care initially told the auditor it would “decline to implement” recommendations to close facilities sooner, crack down on staffing violations and better evaluate the likelihood of violations.

But now, agency officials say they’re taking steps to address such concerns.

David Mandell, acting director of the Early Learning Division, said regulators have not shifted their stance. He said the agency’s past statements rejecting the auditor’s recommendations were simply “an internal conversation document.”

As part of their effort to show progress, state regulators are now pointing to a plan that will assign every type of rule violation a risk value to help highlight problem facilities. Regulators believe the changes will create clear guidelines for when to intervene, Woods said.

Officials have been working on the effort since 2013. They don’t expect to fully implement changes until 2018 at the earliest.

In April, the Office of Child Care also created a workgroup tasked with developing recommendations for the Legislature. Mandell said moving any faster would have produced “poorly written legislation.”

“I know that that may seem frustrating from the outside,” he said. “But that’s just the reality of what it takes to work through thoughtfully some of these questions, to build understanding and support with legislators.”

Officials are hopeful that they’ll beef up rules to enable stronger action against bad day cares. But they would not guarantee success.

— Brad Schmidt