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Torts—Adult Protective Services Act Exhaustion of Administrative Remedies

Bailey-Null v Value Options, __ Az. Adv. Rep. __, 1 CA-CV 08-0156 (Ct. App. Div. I, April 7, 2009)(Justice Swann)


The Behavioral Health Division of the Arizona Department of Health Services [BHD] contracted with defendant Value Options to provide services to residents of Maricopa County pursuant to ARS 36-3410. Plaintiff was admitted to defendant's psychiatric recovery center where she claims she was the victim of assault and battery as well as medical malpractice and violation of the American with Disabilities act and Adult Protective Services act. She filed a grievance with Value Options which the defendant found to be unsubstantiated. Her appeal to BHD was also denied.

Thereafter the plaintiff requested an administrative hearing where an administrative law judge found her claims to be valid but also found it difficult to formulate a remedy other than confirming violations in the defendant's file. This decision was certified as final and a motion for rehearing was denied. She had 30 days to appeal this decision to the Maricopa County Superior Court but instead filed a civil lawsuit. Defendants moved to dismiss arguing the damages claimed in the civil lawsuit exceeded the relief she sought in the administrative hearing and taking the position her remedy was an appeal of the administrative decision not a separate civil lawsuit.

The Court of Appeals found that although the plaintiff had failed to exhaust her administrative remedies she did not have to bring this suit since the Adult Protective Services Act (ARS 46-455 (O)) specifically states an action under this statute “is not limited by any other civil remedy or criminal action or any other provision of law. Civil remedies provided under this title are supplemental and not mutually exclusive.”

Further, ARS 36-506 and the administrative regulations provide a client has “all rights afforded by applicable law, including the right to sue and be sued . . . and the right to the same civil rights as all other Arizona citizens.

Similarly the Arizonans with Disabilities Act (ARS 41-1492) provides that citizens may bring a civil action for “preventive or mandatory relief” and the regulations under the Act specifically allow a person to “file a complaint on the basis of disability” whether or not an administrative claim has been brought.

Finally, assault and battery are common law torts which fall within the general jurisdiction of the courts and medical malpractice claims while statutory (ARS 12-561) by definition may be brought in superior court.
As such the BHD did not have original jurisdiction over the claims set forth in plaintiff's complaint and the plaintiff was not required to exhaust administrative remedies before filing suit.

If you or a loved one has been seriously injured by Value Options, META Services, the Arizona Behavioral Health Dept or others you may have the right to sue for damages. Call us we may be able to help.

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