State schools have room to improve

By Matt Phinney (Contact)Saturday, June 27, 2009

(Link to article)

Supporters of state-supported living centers say a new law providing more oversight to the 13 facilities will go even further to protect the thousands of residents who live in them, while at least one advocacy group says a need continues for sweeping change to the state system.
This month, Gov. Rick Perry signed a bill that includes random drug-testing for employees, harsher penalties for abuse and neglect of residents and more surveillance at the facilities, which previously have been known as state schools. Some of the measures already have been in place in the state-operated facilities, said Cecilia Fedorov, media officer with the Texas Department of Aging and Disability Services.
That agency oversees the state facilities and regulates private immediate-care facilities for people with mental retardation as well as contracts with providers for community-based services, she said.
Among other things, the new legislation allows for enhanced training on how to recognize possible abuse or neglect, and what the reporting requirements are, as well as the ramifications of not reporting or preventing abuse and neglect.
“I think (the law) is just added benefits,” Fedorov said. “We already have a lot of safeguards in place, and this will allow us to screen even further. The top priorities at all times is the health and quality of life for our residents. This allows us to strengthen that.”
In addition to the law, 1,190 new employee positions will be open statewide for the centers.
That number hasn’t been broken up by individual facilities, Fedorov said.
About 4,600 people live in the 13 state facilities, according to The Associated Press, which is more than six times the national average.
The San Angelo State School, in Carlsbad, had 276 clients as of March 31, and had 760 employees as of April.
Perry declared state school reform a legislative emergency during the most recent session after state lawmakers reached a $112 million settlement with the Department of Justice, which documented widespread mistreatment of residents and alleged their civil rights were violated.
The agreement developed from a series of federal investigations that found that at least 53 deaths statewide in the system from September 2007 to September 2008 were from preventable conditions, indicating lapses in proper care.
After that report came out, there was talk of downsizing, consolidating and even closing some state-supported living facilities, said state Rep. Drew Darby, R-San Angelo, a member of the state’s Human Services Committee.
The talk eventually turned from downsizing to providing more resources to help the facilities protect their residents, led in part by families of residents at the facilities, Darby said.
“I think right-thinking people started working to come up with solutions that addressed the concerns of the Department of Justice and those in the community who believe there needs to be more resources,” Darby said, “while being sensitive to the many hundreds of parents and professionals that believe state-support living institutions are the best place for their loved ones.”
However, Jeff Garrison-Tate with the advocacy group Community Now! said there is no need for 13 state facilities and calls for complete reform of the system. The group works to ensure that people with disabilities who reside in state institutions get a chance to live in community settings.
His daughter has been on a waiting list for years, hoping to enter a community service center, which includes group homes and foster care.
Garrison-Tate said many residents at the state facilities do not have guardians and do not want to be in such large settings.
He said there is a waiting list of 88,000 people wanting to live in community service centers.
“I believe that everyone who wants to leave should have the opportunity to do so per federal law,” he said. “And whenever every one of those folks that wants out gets out, we need a long-range strategic plan to determine if we need these facilities in Texas. I believe we would not need that many.”
A report released this month indicated 27 people were fired or suspended at the San Angelo facility during the 2008 fiscal year. One of the 27 firings or suspensions was considered a Class I violation, physical or sexual abuse that may cause serious physical injury. Thirteen were Class II, which are nonserious physical injuries or exploitation, three were for emotional or verbal abuse and 10 were for neglect.
Fedorov said the number of people disciplined show the agency’s strict employee code of conduct is working to protect the residents.
The new law is a good start, Darby said, but the key for the state is to continue to provide the facilities with the resources to protect the residents.
Garrison-Tate disagrees. He said that while there are many good employees at the institutions, “There is a culture of abuse and neglect in these facilities that goes beyond any amount of money that we dump into these places,” he said.
“History shows we put money into this, and it doesn’t work.”
Garrison-Tate said the law includes worthwhile provisions, such as creating an independent ombudsman position and increasing penalties. However, he doubts that adding cameras in common areas will make a significant difference because most abuse takes place in bedrooms or bathrooms, where cameras cannot be installed.
Fedorov called the cameras “another layer of security. The more eyes you have looking at the situation, the less likely you are going to have abuse or neglect,” she said, adding that the cameras won’t be added quickly because the process must go out for bids, and some construction work will be required to install the systems.
Fedorov also said the state has increased by thousands the number of slots available for people who receive community-based services, she said.
Fedorov described the hiring process as “pretty intense,” including a lengthy orientation, security and background checks and training.
The employee turnover is high during the first six months of employment, which is a probationary period, she said.
The turnover rate is lower after the second year of employment, she said.
Many people who last more than two years make a career out of working at the facility, she said.
PROVISIONS OF SENATE BILL 643
Following is a list of provisions in a new law designed to protect residents at the state’s 13 state-supported living centers.
Establishes the Office of Independent Ombudsman and a new assistant commissioner who will oversee all state-supported living center operations.
Enhances abuse and neglect investigations by notifying and including the Health and Human Services’ Office of the Inspector General in criminal investigations.
Creates a hotline number that is linked to the SSLC Ombudsman’s office to report allegations of misconduct.
Requires video surveillance cameras in all common areas to prevent, deter and detect abuse and neglect.
Requires FBI fingerprint background checks and random drug-testing on employees.
Increases penalties for employees who abuse or neglect residents, or fail to report abuse or neglect.
Requires the Department of Aging and Disability Services to contract with an independent patient safety organization to conduct mortality assessments to determine if deaths could have been prevented.
Helps ensure that the facilities are in compliance with the recent U.S. Department of Justice settlement agreement.
Renames the state schools to SSLCs to more accurately depict the residential care services provided to residents.
Designates the Mexia State School as the forensic SSLC to house high-risk, court-committed residents.
Source:Source: Governor’s office

Head of agency in charge of Texas state schools plans to retire

link to article
By JIM VERTUNO Associated Press Writer © 2009 The Associated Press
June 25, 2009, 4:39PM
AUSTIN, Texas —

The head of the Texas agency in charge of the state's troubled institutions for the mentally disabled announced Thursday she is retiring, effective Aug. 31.
Department of Aging and Disability Services Commissioner Adelaide "Addie" Horn has led the agency since February 2006.
The institutions were the target of a federal civil rights review following allegations of abuse and neglect of the mentally disabled. State lawmakers reached a five-year, $112 million settlement with the U.S. Justice Department that requires the state to improve living conditions and medical care.
State lawmakers recently passed new security measures at the 13 state supported living centers after a 2008 report outlined widespread mistreatment of residents. Dozens of people have died under questionable circumstances and hundreds of employees have been disciplined for mistreating residents.
Texas has about 4,600 residents living at the large institutions.
In a statement, Horn said, "It has been my privilege, and one that I have never taken for granted, to have served individuals who are aging and have disabilities."
Horn was director of long-term care services at the state Health and Human Services Commission before being name first deputy commissioner of DADS. She was put in charge of the agency on Feb. 1, 2006.
Health and Human Services Commissioner Albert Hawkins' praised Horn's "strong leadership on behalf of individuals who need her agency's services, no matter the setting or disability."
But some advocates for the disabled sharply criticized her tenure.
"Commissioner Horn is ultimately responsible for the operations of state institutions in Texas and has failed miserably in this regard. Her retirement ends an era of arrogance and gross negligence in the management of the safety and civil rights of our most vulnerable Texans," said Jeff Garrison-Tate of the advocacy group Community Now!, which has called for Texas to close the large institutions.
Spurred by the reports of abuse and neglect, lawmakers and Gov. Rick Perry moved to improve security and oversight at the institutions. Earlier this month, Perry signing into law a bill that requires video surveillance in common areas. It also gives new powers to the state Office of Inspector General to help local prosecutors pursue cases of abuse, neglect or exploitation. Staff would be subject to drug tests and criminal background checks.
"Commissioner Horn has been a tireless advocate for Texans with disabilities," said Sen. Jane Nelson, R-Flower Mound, chair of the Senate Health and Human Services Committee that drafted many of the changes.
"We are grateful for her service on behalf of the State of Texas and, in particular, our most vulnerable citizens," Nelson said.

Failing Darla

Texas Monthly July (link here)


When you live here long enough, you become inured to certain things that might otherwise drive you crazy, like the fact that we rank, among all states, near or at the bottom of too many lists: dead last in health insurance coverage, forty-ninth for children living in poverty, well below average in the incarceration of nonviolent teenagers, and so on. So when the Legislature gets infatuated with a nonpressing issue—this session it was voter ID—instead of trying to improve dire situations that have persisted for decades, the public response isn’t outrage but a collective shrug. It’s our way to embrace the bright side of the Texas myth (independence, individualism) while ignoring the dark side, which leaves the less fortunate to fend for themselves. Some of these evils have been with us for so long that we’ve come to believe they’re intractable, even though other states have proved they aren’t. And when outsiders say we’re backward in our nonapproach to social ills—what else would you expect from Texas?—the historic response is to circle the wagons in collective defensiveness.
Those were the kinds of thoughts running through my mind this spring when I happened to meet Darla Deese, who is fifty and “developmentally disabled” (the polite term for “mentally retarded”), at the precise moment, after decades of abuse and neglect, that the Legislature had budgeted $507 million for care of people like her. “It’s going to create a lot of opportunities for people . . . to stay in their homes or a community setting,” state representative John Zerwas, of Richmond, jubilantly told the Houston Chronicle. If only that were true. Of the 66,000 developmentally disabled Texans who have been waiting up to eight years for services in their communities—some trapped in institutions, some with families stressed to the max—a mere 7,000 will have their needs met. It is a measure of how bad things are (we rank forty-eighth in funding for the developmentally disabled) that some who fought for the increased appropriation and accompanying reforms are grateful for what they got.
In truth, most people do not care about the fate of the mentally retarded. Adults with developmental difficulties are children in grown-ups’ bodies, which means that they are expensive and time-consuming to care for. In Texas, they and their families have two choices: institutions, which, at best, serve as human warehouses, or community services, which are available to only a lucky few. “I believe waiting lists are immoral,” says state senator Judith Zaffirini, of Laredo, who has done more than any other legislator for the developmentally disabled. In general, the strategy of our state government has been to lurch from crisis to crisis—or lawsuit to lawsuit—while maintaining a dysfunctional system that is outdated, underfunded, and incomprehensibly bureaucratized.
The $507 million came about in response to a 2008 civil rights investigation of Texas’s thirteen state schools by the U.S. Department of Justice. The findings read like something out of a fifties horror movie: residents put in straitjackets, overly and improperly medicated with psychotropic drugs, and worse. “More than 800 employees across all 13 facilities have been suspended or fired for abusing facility residents since fiscal year 2004,” the report notes. “Over 200 of the facilities’ employees reportedly were fired in fiscal year 2007 alone for abuse, neglect or exploitation of residents . . .” Injurious falls went unnoticed, claims of rape unprosecuted. “The mortality rate for some of the facilities raises serious concerns regarding the quality of care that facility residents receive. In recent years, one of the facilities averaged two resident deaths per month.” It’s worth noting that the now infamous “fight club” scandal at the Corpus Christi State School, in which employees pitted residents against one another, occurred months after the feds released their report. In other words, at least one school investigated and found wanting was in no hurry to clean up its act.
This fact would come as no surprise to Darla and her sister and lifelong advocate, Esther Hobbs, who is sixty. The women now share a sun-drenched house in the Montrose section of Houston, where Esther runs a public relations business. New people sometimes make Darla nervous; she shook her head and was reluctant to make eye contact when Esther introduced us. Until a few years ago, she slept with one eye open and often threw her hands up in the air, as if warding off an attacker. “We don’t know what she’s been through,” Esther said of Darla’s 31 years in the state’s care.
Darla’s story is typical of many developmentally disabled Texans’. She was born in Beaumont, into a strict Southern Baptist family of modest means. Her father was a car salesman, her mother a homemaker. A beautiful girl with blue eyes and blond ringlets, she was the last of four children. Her mother had had a medical emergency when she was pregnant that resulted in a loss of oxygen to Darla’s brain. But her oldest sister was more than willing to take her on. “Darla was like my baby doll,” Esther told me. “From the time she was born she was my responsibility.” Even so, this was the late fifties and early sixties, when there was much shame and little hope associated with mental retardation. The family’s doctor urged that Darla be institutionalized, and her parents agreed. “I came home one day and she was gone,” Esther told me. “They didn’t talk about things then.” Darla had been sent to the Mexia State School. She was five.
Her decline there was as predictable as her interminable loneliness. She lost the ability to speak in anything but single words and almost always seemed afraid. When Esther came to visit with her parents, Darla leaped into her arms and wept wretchedly whenever it was time for her family to leave. Then, less than a year into Darla’s stay, her parents got a middle-of-the-night call from a state school worker. “I’ll probably lose my job over this,” she told them, “but your daughter doesn’t belong here.”
For the next year Darla lived at home and attended special-education classes at a Beaumont public school. Esther left home at eighteen and not long after discovered that her parents had moved her sister to the new state school, in Richmond, just south of Houston. Darla would spend the next thirty years there. Initially she lived in a dayroom with thirty or so girls, sleeping in a cubicle and sharing hard wooden chairs. “They had nothing to write on, nothing to read,” Esther said. Darla came home every other Sunday, on holidays, and on her birthday, but she was more like a wild animal, Esther remembers, than a human being. Often she had cuts and bruises; when Esther asked staff what had happened, they always said that Darla had fallen down. Who really knew? The turnover among her direct care staff was high; most worked for minimum wage and had little or no training. Around age twelve, with her parents’ assent, Darla had a hysterectomy; there was sexual activity at the school, they were told, and no one wanted her to get pregnant.
In 1991, when Darla was 32, she was moved to another part of the school. At that point, her female caretakers were replaced by men; even more worrisome to Esther was the fact that some prison inmates purported to be mentally retarded had been shipped to state schools in an effort to ease prison overcrowding. On visits Esther sometimes found her sister’s face smeared with makeup or bruised. Darla developed a fear of trees, which led Esther to suspect that she was being raped in the woods on school property. After Darla’s caseworker reported that she had been sexually abused, Esther complained repeatedly to the state school staff and to the Fort Bend County Sheriff’s Department, but to no avail. (This outcome is unsurprising in cases involving the developmentally disabled: Claims by them or on their behalf are routinely seen as lacking credibility, even though the Justice Department’s Office for Victims of Crime estimates that nearly 83 percent of developmentally disabled women will be sexually abused in their lifetime.) About a year later, Esther was called by a caseworker who reported that Darla had a human bite mark on her back. Esther went to the school looking for her, and she found her huddled in a corner, inconsolable and “beaten beyond recognition.” “She was the saddest person in the whole wide world,” Esther told me.
By the mid-nineties, Esther could no longer live with the situation; she persuaded her mother to allow her to become Darla’s guardian. By then, her own health was suffering—her skin itched as if it were on fire—and when her doctor diagnosed stress and asked about the possible causes, Esther told him about Darla. She remembers his response as if it were yesterday: “Everyone in the medical profession knows what they do to those kids. You need to go get your sister right now.” She did. “It was two years before she would let me hug her,” Esther told me.
If this were a movie, Darla’s life would have taken a dramatic turn for the better. That’s not what happened. She joined the proverbial waiting list to take advantage of government funds and services, but it was eight years before she got any. In the meantime, Esther put together a patchwork of private day care programs, some of which kept Darla no safer than she had been at the state school (a large bruise on Darla’s inner thigh was diagnosed as, yes, evidence of repeated sexual assault). For several years, out of desperation, Esther ran her own school, but she had to close when grants dried up.
It doesn’t have to be this way. Zaffirini and other advocates believe that $1 billion is needed to solve some of Texas’s worst problems, like inadequate training and low staff pay at state schools. More important, though, is the way money is allocated: Too much of it goes only to large, outdated, expensive institutions instead of smaller, cheaper-to-operate community-based programs, which many developmentally disabled people and their families prefer. (The Mexia State School, for instance, is the largest employer in town, a problem for any politician who wants to improve care but remain in office.) Overall, says Zaffirini, it will take a change in the popular will to create a system—from home care to institutions, with many alternatives along the way—that can help the developmentally disabled live decently and safely, earning money and contributing to society.
Until then, the waste of human potential, and human life, continues.

‘Zero tolerance’ not enforced

(Link) Many with allegations against them remain on job at state schools

By TERRI LANGFORD HOUSTON CHRONICLE
June 22, 2009, 10:47PM
At least 302 state employees who care for the mentally disabled in Texas institutions have abuse or neglect allegations against them and remain on the job despite a “zero tolerance” abuse policy put in place two years ago, a state agency official confirmed Monday.
These latest numbers come a week after the Texas Department of Aging and Disability Services (DADS) released figures showing 268 employees who work in the state’s 13 residential facilities were fired or suspended for abuse or neglect in the year ending Aug. 31.
Two years ago, agency commissioner Addie Horn established a “zero-tolerance” policy when it came to abuse or neglect that resulted in physical harm.
“Our commissioner does not tolerate or accept any abuse or neglect and she wanted to be every clear,” said agency spokeswoman Cecilia Fedorov.
All cases not equal
But Fedorov conceded that all abuse cases are not equal.
She explained that those 302 workers still on the payroll — including 39 staffers who have more than one abuse or neglect case confirmed against them — were involved in incidents that did not result in “any measure of physical harm.”
For example, a worker failed to have enough staffers to oversee 10 disabled adults. As a result, state abuse investigators confirmed 10 cases of neglect against the staffer.
Most of the cases against these current employees were neglect cases. All of the 302 were disciplined in some fashion, Fedorov said.
“It could have been a letter of reprimand, suspension or a demotion,” she said.
A breakdown of the disciplinary actions and exactly how many of the cases involved neglect were not immediately available.
Lawmakers and state officials have renewed their focus on abuse and neglect at the state’s 13 facilities, after receiving a scathing 2008 Justice Department report .
On June 12, Gov. Rick Perry approved new protections and millions more dollars in funding. Those new safeguards, part of the $48 million package approved by Perry, include video surveillance in common areas, an effort to eliminate problems such as the fights between residents at Corpus Christi State School that police say staffers organized.
terri.langford@chron.com

Keep spotlight on state schools

opinion from the San Antonio Express News (link)

In 1974, the families of residents of Texas state schools for the mentally disabled filed a lawsuit against what was then known as the Texas Department of Mental Health-Mental Retardation over poor conditions at the schools.
Eventually the class action lawsuit represented 2,000 of the 7,000 residents in state schools, and required 17 years of internal reforms and legislative fixes before it was finally resolved.
In 2004, the newly created Texas Department of Aging and Disability Services assumed operation of the state schools.
Four years later, DADS was once again under scrutiny for deplorable conditions and poor treatment in the schools.
First, a Department of Justice investigation uncovered widespread abuses and lapses in care that violated the residents' constitutional and statutory rights.
Then videos emerged of fights between residents organized by staff at the Corpus Christi State School.
Now Gov. Rick Perry has signed into law a measure that will once again overhaul the state schools.
The legislation adds 1,160 new positions, tougher background checks on employees, more monitors and video surveillance in common areas at the 13 facilities in the system.
Perhaps the most important component in the new reforms is the creation of an Office of Independent Ombudsman to respond to resident complaints and investigate reports of abuse or neglect.
An ombudsman with real authority is the best internal guarantee that substandard practices don't return.
Ultimately, however, elected officials are responsible for the state schools.
The governor and lawmakers must make sure that a system that is supposed to care for the state's vulnerable, disabled citizens doesn't once again end up failing them.
It shouldn't require a class action lawsuit or a federal government inquiry to guarantee decent care in the state school system.

Give disabled choice of home

Link to article

By MICHAEL VOLKMAN

First published in print: Friday, May 15, 2009
If you are a taxpayer in these hard times, then you will want to pay attention to this.
Medicaid, a health insurance program for people with low incomes administered jointly by the federal government and the states, is enormously expensive. For several decades now, Americans with disabilities have been pushing very hard to change an injustice within Medicaid that ruins people's lives and wastes your money.
The Medicaid statute requires all states to cover long-term care provided by institutions such as nursing homes, but does not require any state to support people to live in the community in their own homes.
New York is one of the few states that offer optional community-based services. However, the care available varies from county to county. For example, New York City and other urban areas can provide 24-hour coverage, while some rural counties only can afford to provide six or eight hours a week.
Twenty-seven states provide no community-based assistance, so people like me living in those states are taken from their families and shut away. Many other states restrict services and have long waiting lists to get them.
There are people who could live independently with just a few hours of aide service each day for less than $100, and others who need more hours but still could live independently. Instead, they are forced into nursing homes at a cost of hundreds of dollars more for each person for each day.
Disability advocates managed to get Congress to introduce bills in each house that would end this institutional bias and give consumers real choices with the full range of options for living in the community. These bills, now known as the Community Choice Act (HR1670 and S683), were first introduced 12 years ago. They do not move through the committees and get to a floor vote. They just sit there.
This year we thought we might finally get some progress. As senators, both President Barack Obama and Vice President Joe Biden were co-sponsors of the bill. During their campaign for the White House, they pledged that they would call for passage.
The Obama administration has made reforming health care a priority. It would make sense to include the Community Choice Act as part of this process.
The disability rights organization leading the charge on this is American Disabled For Attended Programs Today. At a recent series of meetings and rallies in Washington, ADAPT members encountered a very unexpected and very disappointing roadblock.
A small contingent of ADAPT leaders met with Nancy-Ann DeParle, the administration's health care reform czar. After that meeting, those who met with her quoted her as saying that the Community Choice Act would not be part of the health care reform and that we would just have to live with the institutional bias.
ADAPT responded by having several hundred people, mostly in wheelchairs, chain themselves to the front fence at the White House. Ninety-one people were arrested. Many veterans of these protests don't mind. One of their often-used rally chants is, "I'd rather go to jail than die in a nursing home."
Now the White House has changed the disabilities issues page on its Web site. Gone is mention of the President's intention to enforce the Community Choice Act. The new paragraph merely states that, "the President believes that more can be done to encourage states to shift more of their services away from institutions and into the community, which is both cost effective and humane."
Encouraging states to take the lead doesn't mean they will. If they wanted to, they could have done it years ago.
Is this really how the President feels about this issue?
Did he just give us lip service during the campaign?
Does he realize how many billions of dollars are being wasted every year to pay for a "service" that hundreds of thousands of Americans neither want nor need?
Congress has to act now. This is not just about money. This is also about freedom.
We can't keep wasting money this way. We can't keep wasting lives. And we can't waste another day.
Michael Volkman is a Capital Region resident and an advocate for people with disabilities. His e-mail address is mvolkman@nycap.rr.com.

Truce in Mexia school battle

District, state feuded over care of kids with mental disabilities.
By Corrie MacLagganAMERICAN-STATESMAN STAFF Wednesday, June 17, 2009
Texas lawmakers seem to have found a resolution to a fight between a school district and state officials over the education of youths with mental disabilities.
The dispute centered on who was responsible for supervising dozens of residents of a state institution in Mexia who attend classes through the local school district. Mexia is about 40 miles east of Waco.
The superintendent of the Mexia Independent School District says that the students — many of whom live at the institution because they have been accused of crimes but were deemed not competent to stand trial — can be violent and pose a danger to teachers and students.
Superintendent Jason Ceyanes told lawmakers that the institution should provide staff to supervise the students, something the state did until this past school year. State officials countered that he was trying to avoid teaching the students and said that a written agreement between the school district and the state didn't require such supervision.
A provision in a new state law makes it clear that it's the school district's responsibility to supervise the students. And the Legislature provided money — $5,100 per student per year — for the district to hire behavior specialists to work with the alleged offenders.
The provision is part of a law that improves security and oversight of the 13 institutions previously known as state schools that are now called state supported living centers.
The legislation, signed into law by Gov. Rick Perry last week, came in response to an investigation by the U.S. Department of Justice that reported that the facilities failed to provide adequate care.
The provision satisfied the school district enough for it to drop its lawsuit against state officials.
"We're pleased," Ceyanes said. "Not only did this legislation provide us with the clarification we were seeking, but it also included funding to help us ... keep everyone safe."
Ceyanes said that the specialists will work with students to identify behavior issues and create a plan for addressing them.
"This is not just a person sitting in a room telling kids to be quiet if they start talking out of turn," Ceyanes said. "If you see a kid jump up and get upset, there are strategies to de-escalate that behavior before they actually hit someone."
Laura Albrecht, a spokeswoman for the Department of Aging and Disability Services, said that adding behavior specialists "will certainly be a plus for the students."
State Rep. Byron Cook, R-Corsicana, inserted the provision into the bill after sitting down with state and district officials.
"I'm confident this can work," Cook said. "I think there is a new spirit of cooperation."
The Mexia school district educates 88 residents of the Mexia State Supported Living Center, including 69 alleged offenders, Albrecht said. Both groups attend classes taught by Mexia district teachers, some on the living center's campus and others on a district campus.
The number of alleged offenders at the Mexia living center is likely to grow because under the new law, the center will be the home of certain alleged offenders from across the state.
cmaclaggan@statesman.com; 445-3548

Sentence raises questions about prosecution of mentally disabled

Rights groups shocked by the hundred-year prison term given to 18 year-old offender with an IQ of 47 and severe disabilities

By Emily Ramshaw The Dallas Morning News When an 18-year-old with profound mental disabilities performed sexual acts on a 6-year-old neighbor, the small town of Paris, Texas, was unforgiving. But Aaron Hart's punishment - 100 years in prison for a single incident - has stunned veteran disability rights advocates, who believed counseling, probation or even placement in a group home would have sufficed for a first-time offender with the mental maturity of a second-grader. "Aaron is 18, never committed a felony, had no violent record. He couldn't understand the seriousness of what he did," said his father, Robert Hart. "I never dreamed they would think about sending him to prison. When they said 100 years - it was terror, pure terror to me." The sentence raises serious questions about how people with profound disabilities are prosecuted in Texas, at a time when both state lawmakers and the U.S. Supreme Court are considering the appropriate punishment for people who are young, mentally disabled or both. Repeat child molesters and rapists routinely receive lesser sentences than Hart's. Also at issue is Hart's trial. His defense attorney hardly questioned his client's competency to stand trial, his appellate lawyer said. And though both the judge and jurors say they would've preferred not to send Hart to prison, state care facilities and group homes for disabled offenders were never presented as an option. "It's not just abnormal. It's absurd," said Daniel Benson, a Texas Tech law professor and author of textbooks on criminal offenders with mental illness. "I wouldn't think a sentence would go above a few years in a situation like this. That's not helpful to society or the offender." Lamar County and District Attorney Gary Young said that while he sympathizes with Hart's "mental health challenges," he stands by his decision to prosecute Hart on five different counts related to the incident. It's common for prosecutors to pursue several different charges in a case involving one incident, not knowing which charge the jury will support. "I hope people will remember he committed a violent sexual crime against a little boy," Young said. David Pearson, Hart's appellate attorney, said he's never seen a worse miscarriage of justice. Pearson blames Hart's trial attorney, who had the burden of explaining Hart's disability to the judge and jury. That attorney, appointed by the court because Hart's family couldn't afford counsel, did not ask for special accommodations, such as a liaison who could help the defendant understand what was happening in court. Nor did he try to call witnesses who could testify to Hart's mental condition, Pearson said. And he didn't get a second opinion after a court-appointed doctor found Hart competent to stand trial. That meant Hart no longer qualified for prison diversion options, like group homes and institutional settings for disabled offenders. The original trial attorney, Ben Massar, did not return repeated phone calls to his office. Faced with a five-count guilty plea signed in wobbly block letters, a jury sentenced Hart to three 30-year prison terms and two five-year terms - one for each class of offense. Lamar County Judge Eric Clifford, who made the decision to stack the sentences into one 100-year prison term, said neither he nor the jury loved the idea of prison for Hart, but they felt they had no other option. "In the state of Texas, there isn't a whole lot you can do with somebody like him," said Clifford, who rejected Hart's first request for a new trial. No alternatives offered Jurors tell a different story. They say that during their deliberations, they repeatedly sent notes to the judge asking if there were alternatives to prison, which they said the judge didn't answer clearly. They said they were sure Hart would serve a concurrent sentence and were flabbergasted when Clifford stacked the sentences. Lawmakers are working out the final kinks on a bill that would require law enforcement officials who take someone with obvious mental disabilities into custody to let a court magistrate know within 72 hours. The court magistrate would have to order a local mental health or mental retardation expert to assess the individual immediately and would allow that assessment to be considered during the trial's punishment phase. Hart, who has an IQ of 47, was diagnosed with mental retardation as a child and placed in a special school curriculum. He never learned to read or write. His speech is unsteady. His disabilities made him a target of bullies, his father said, who stole his bikes and his shoes. But his parents never considered putting him in an institution or a group home. They loved having him at home, and despite the teasing, they said, he was gentle, courteous and well-behaved. After graduation, Hart, who doesn't have the capacity to work, was a constant presence in the neighborhood. He made friends with some younger boys, playing video games and doing household chores to make money. His parents say until the September incident, he never once acted out sexually or gave any inkling that he was a threat to children. On the eve of his arrest, he was excited about a fair coming into town and asked a neighbor if he could mow her lawn to make a few dollars. She found him in the back shed fondling her 6-year-old stepson. When the police showed up, they read Hart his rights and he confessed to what he'd done. As they transported him to jail, he asked repeatedly whether he'd get paid for mowing the lawn. Young, the prosecutor, said that once a psychologist found Hart competent to stand trial, it was obvious the 18-year-old "knew right from wrong." He said choosing diversion over prison was not an option. Under the law, those convicted of serious felonies like sexual assault of a child are not eligible for diversion programs. "Mr. Hart is not severely mentally retarded to the point he doesn't understand what's taking place around him," said Allan Hubbard, victim's advocate for the district attorney. Hart's family flatly disagrees. "I've been around this kid since the day he was born, and I know better than anyone what he's capable of understanding," his father said. Pearson, the appellate attorney, and disability rights groups say the trial was riddled with errors from start to finish. Hart was read his Miranda rights, but not a special version designed for people with disabilities, and he confessed to five felony counts without an attorney present. Pearson said the court-appointed doctor who evaluated Hart did the bare minimum to determine competency; he didn't talk to any of Hart's teachers, and ran tests geared toward mental illness, not mental retardation. Meanwhile, Hart's defense attorney never presented his own evidence or expert witnesses to testify about Hart's mental capacity, assuming, Pearson said, that Hart would only get probation. Pearson said Massar was ruled an ineffective counsel in a 2007 case the 6th Court of Appeals in Texarkana overturned. That court is expected to hear Hart's appeal later this year. Officials with the district attorney's office say police carefully read Hart his Miranda rights, and that he told officers he understood. They say the doctor who evaluated Hart has years of experience in his field. And they note the defense asked for no special accommodations during the trial. Young says he took Hart's mental condition into account after sentencing, flagging him for the "Mentally Retarded Offender Program," a special Texas prison unit that houses 930 inmates with mental disabilities. Hart arrived there this month. Hart's father, Robert, said that while his son may look like a man, mentally, he's as young as his victim. He said the one silver lining in this case is that his son doesn't understand how dire his situation is. "He keeps saying he'll be out soon, he'll be home with us," he said. "It's the hardest thing I've ever had to hear."

268 punished for abusing disabled in Texas

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By JEFF CARLTON – 9 minutes ago

DALLAS (AP) — Nearly 270 employees were fired or suspended for abusing or neglecting residents of large, state-run institutions for the mentally disabled in Texas, according to records obtained by The Associated Press.

The revelations Friday come a day after Gov. Rick Perry signed legislation aimed at improving security and oversight at the 13 institutions, known as state schools. They are home to about 4,600 residents and more than 12,000 full-time employees.

Documents obtained by the AP through an open records request show that 11 of the 268 firings or suspensions were considered serious because they involved physical or sexual abuse that caused or may have caused serious physical injury. Employees may also be fired for a violation as mild as neglecting to protect a resident with mobility problems from stumbling into a wall.

"I think what the number of firings and suspensions say is we do not tolerate abuse or neglect in our state schools," said Cecilia Fedorov, a spokeswoman with the Department of Aging and Disability Services, which oversees the schools.

It was not clear Friday whether any of those fired were prosecuted.

The Department of Family and Protective Services, which investigates allegations of abuse, notifies law enforcement officials about any deaths, alleged sexual assaults, serious physical injuries or incidents involving children. But the agency does not track what happens once police or sheriff's deputies get involved, spokesman Patrick Crimmins said.

The Coalition of Texans with Disabilities said Perry's legislation doesn't go far enough to protect state school residents.

"Why is it that residents in state schools are somehow valued less than other citizens?" asked Dennis Borel, the coalition's executive director. "This speaks to me of a widespread, systemic problem, and personally I don't believe this can be fixed."

Defenders of the state schools include the Parent Association for the Retarded of Texas. Susan Payne, the organization's vice president, said her 47-year-old sister, Dianne, has been well served in the 37 years she has lived in state schools.

"The medical care is unbelievable. She is alive because of the schools," Payne said. "These numbers and these reports make the places sound like hellholes, and that is just not what we see."

Perry declared state school reform a legislative emergency during the most recent session. State lawmakers reached a five-year, $112 million settlement with the Justice Department that documented widespread mistreatment of residents and alleged their civil rights were violated. The state will spend $24 million in each of the next two fiscal years to meet the terms of the settlement, which call for each school to have an independent monitor.

Lawmakers also have provided funding for hiring nearly 3,000 additional employees.

The agreement resulted from a series of federal investigations that found that at least 53 deaths from September 2007 to September 2008 were from conditions the Department of Justice considered preventable, such as pneumonia, bowel obstructions or sepsis, indicating lapses in proper care.

Nearly 1,100 employees have been suspended or fired in the last five years for mistreating, neglecting or abusing residents, according to state records. The 2008 figures are the most in any of those five years.

Copyright © 2009 The Associated Press. All rights reserved.

Perry signs bill overhauling state schools

(link)

hmmm. Look at all that money...

AN OVERHAUL FOR STATE SCHOOLS

Gov. Rick Perry approved new protections and more money for state schools residents.

$48 million: Cost of emergency package to generally improve the schools

$418 million: Cost of community living options for residents

$112 million: Cost of improvements required by the Justice Department.

By JANET ELLIOTT and TERRI LANGFORD Copyright 2009 Houston Chronicle Austin Bureau

June 11, 2009, 9:03PM

ov. Rick Perry signed legislation Thursday meant to overhaul Texas’ troubled state schools, where dozens of individuals with mental disabilities have died preventable deaths or been the victims of abuse over the last several years.

“Our current system had some serious shortcomings. They were exposed,” said Perry, who had declared improvements for the state schools an emergency issue for lawmakers this past session.

As families and supporters of the 13-facility system watched, Perry printed his signature with his left hand. His right arm was in a sling because of a broken collarbone suffered in a bicycle fall Tuesday night.

The $48 million bill is the Legislature’s response to a federal investigation that found deadly lapses in health care and widespread abuse and neglect. It also renames the state school system. They will now be called “state-supported living centers” to reflect that the vast majority of residents are adults.

New protections include video surveillance in common areas, an effort to eliminate problems such as the fights between residents at Corpus Christi State School that police say staffers organized.

Employees will face enhanced criminal background checks, random drug testing and receive more on-the-job training. An Office of Independent Ombudsman will protect client rights. The law also creates state investigations of abuse and neglect complaints involving residents living in privately run facilities.

Community living options

Perry previously signed off on a settlement reached with the U.S. Department of Justice in its investigation of abuse and neglect at the facilities. That $112 million pact will add 1,160 new employees, many of whom will be direct care workers, as well as people who will monitor conditions at the facilities.

The settlement and the reform legislation together represent new spending of about $150 million over the next two years. Additionally, the state is spending $418 million in the next two years to create community living options, such as group homes or home-assisted care, for Texans with physical and mental disabilities.

About 8,000 people, including some now living in state schools, are expected to be able to live in less restrictive settings.

“Whether these Texans live in a state facility or in therapeutic community settings, we are obligated by basic human decency to provide them with a safe setting in which to live, learn and grow,” Perry said.

The governor praised conscientious state school employees, who “deal with daily challenges that most of us couldn’t imagine.” But he said that “bad actors” will be prosecuted; the new law increases penalties for employees who harm residents or fail to report abuse or neglect.

Recent problems

In December, the Justice Department announced that 53 of the 114 deaths of state school residents over a one-year period could have been prevented. The department also determined that restraints were used too often — some 10,143 times on 751 residents during the first nine months of 2008 alone.

Also documented: Some 200 staff members were fired in one 12-month period. Also, despite plans to move more residents out of the state schools, only 164 residents were placed in a community-based care facility in a 12-month period.

In March, video images allegedly showed Corpus Christi State School staff members forcing mentally disabled residents into fights for entertainment.

But critics who claim the state school system is outmoded say the settlement is deja vu all over again.

“We’re back,” complained Beth Mitchell, managing attorney for Advocacy Inc., a nonprofit group that works to protect the legal rights of disabled Texans. “It’s all the same stuff.”

Mitchell was referring to a series of pacts that ended a 1974 lawsuit that charged — like the recent Justice Department report did — that conditions within the system were not acceptable.

Monitors were called, better reporting of abuse was requested, she said, and now it seems the state is back where it was in the 1990s, when the suit was settled for the third time.

Critic says law is vague

Mitchell said the new pact is too vague in pinpointing exact timetables and plans for moving residents into the community. Also, the settlement is light on what type of qualifications the monitors should possess.

“There are no benchmarks or standards for what the monitors are supposed to follow to make sure the state schools have adequate treatment,” Mitchell said.

Mitchell also pointed to the fact that it does nothing to remedy the retention problems state schools have with its direct care staff, who guide residents in their daily activities.

In the past two years, 376 state school workers were fired for abuse and neglect, and 70 percent of those workers were entry-level aides, whose starting salary is about $20,000 a year.

Lawmakers did not approve a proposed pay raise for these staffers.

janet.elliott@chron.com

terri.langford@chron.com

State schools get $112 million

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Web Posted: 06/08/2009 12:00 CDT
By Terri Langford - Houston Chronicle
It's been a tough several months for the $500 million state school system for the mentally disabled.
First, the Texas Department of Aging and Disability Services (DADS), the operator of the residential facilities, found itself a federal target when it was named in December in a scathing U.S. Department of Justice report on the condition of state schools.
Investigators found that 53 of the 114 deaths of state school residents over a one-year period could have been prevented. They also determined that restraints were used too often — 10,143 times on 751 residents during the first nine months of 2008 alone.
Also documented: Some 200 staff members were fired in one 12-month period. And, despite plans to move more residents out of the state schools, only 164 residents were placed in a community-based care facility in a 12-month period.
But just as Texas officials began dealing with the Justice fallout, they were hit in March with disturbing video images that showed Corpus Christi State School staff members forcing mentally disabled residents into fights for their own entertainment.
Finally some good news out of the 81st Texas Legislature: a $112 million plan to improve conditions at the 11 schools and two centers.
“It allows DADS to continue with a clear action plan,” explained Cecilia Fedorov, a DADS spokeswoman.
The pact adds 1,160 new positions, most of whom will be direct care workers, and calls for people who will monitor conditions at the facilities.
“I hope it works,” said State Sen. Carlos Uresti, D-San Antonio, who sits on the Senate's Health and Human Services Committee. “Obviously, I think we can do more outside of the settlement.”
For Uresti, the most important component of the plan is the monitors.
“If things don't improve, those monitors will recognize that,” he said.
But critics, who claim the state school system is outmoded, say the Justice agreement is deja vu.
“We're back,” complained Beth Mitchell, managing attorney for Advocacy Inc., a nonprofit group that works to protect the legal rights of disabled Texans. “It's all the same stuff.”
Mitchell was referring to a series of pacts that ended a decades-old lawsuit that charged — like the recent Justice Department report did — that conditions within the system were not acceptable.
Monitors were called, and better reporting of abuse was requested, she said. And now, it seems the state is right back where it was in the 1990s, when the 1974 lawsuit filed on behalf of John Lelsz Jr., a severely disabled state school resident, was settled for the third time.
Mitchell said this federal-state pact is too vague when it comes to pinpointing exact timetables and plans to move residents into the community. Also, while there is a provision for more monitors, the settlement is a little light on what type of qualifications those people should possess.
“There are no benchmarks or standards for what the monitors are supposed to follow to make sure the state schools have adequate treatment,” Mitchell said.
DADS officials still were not sure how the new settlement will be different from the series of reforms made in the 1980s and 1990s as a result of the landmark Lelsz lawsuit.
“I'm not familiar with that particular lawsuit,” Fedorov said.
Mitchell also pointed to the fact that it does nothing to remedy the retention problems state schools have with the direct care staff, who escort and guide residents in their daily activities.
In the past two years, 376 state school workers were fired for abuse and neglect; and 70 percent of those workers were entry-level aides, whose starting salary is about $20,000 a year.
Lawmakers did not approve a proposed pay raise for these staffers. About half of all state school employees turn over each year.
But parents of state school residents, like Nancy Ward, who live in fear that the institutions will be closed, support the new pact.
“I am hoping that will help,” said Ward, who helps run the Parent Association for the Retarded of Texas and has watched the legal machinations for decades. Her 47-year-old daughter Dianne Ward, entered the state school system when she was 10 years old. Today Diane lives at Denton State School.
“For one thing, the work won't be as hard,” she said, if more workers are added. “A lot of them work two jobs.”

Advocates pleased with disability services gains in Legislature

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06:56 AM CDT on Thursday, June 4, 2009
By EMILY RAMSHAW / The Dallas Morning News eramshaw@dallasnews.com
AUSTIN – Faced with dangerous conditions inside Texas' institutions for the mentally disabled and a massive waiting list for community-based care, lawmakers didn't pick sides – they improved both.
They did it under pressure: from the U.S. Justice Department, from Gov. Rick Perry's office, from the national news media. And they owe much of their success to behind-the-scenes maneuvers by the Senate's key budget writer. But in the session that ended this week, the Legislature made landmark progress without playing favorites, gingerly balancing the competing interests of state school parents and advocates for independent living.
"The state has recognized that we need to provide resources for both types of care," said Rep. Drew Darby, a San Angelo Republican who started the session fearing that some of his colleagues might try to shutter the state school in his district. "We've had a blending of those needs this session – and a system we can all be proud of."
Advocates for the disabled say the progress made this session is staggering.
Lawmakers passed an emergency safety bill that creates an independent ombudsman to investigate injuries and deaths at state schools; requires fingerprinting, background checks and random drug testing of all state school employees; and installs security cameras in all facilities.
They agreed to a five-year, $112 million settlement with the Justice Department to hire more than 1,000 new state school workers, dramatically improve health care, and install independent monitors to oversee conditions at the facilities.
They gave approval for the family of a young man who was nearly beaten to death by a state school employee to sue the state; his mother had been trying for years.
And they provided an extra $200 million in state funds to provide community-based care for nearly 8,000 people stuck on long waiting lists – an unprecedented expenditure.
"It's a historic, monumental investment in the system," said Amy Mizcles, director of governmental affairs for the Arc of Texas. "They really worked on the entire system."
Investigation
The improvements follow a four-year federal investigation that found widespread civil rights violations across Texas' 13 state institutions for the mentally disabled, and years of media reports about abuse and neglect in the facilities. One of the most staggering came even as lawmakers were meeting – video of late-night "fight clubs" that employees at the Corpus Christi State School forced upon residents. The footage aired on Good Morning America and other national news programs.
The changes are largely the work of six key players.
Rep. Patrick Rose, D-Dripping Springs, and Sen. Jane Nelson, R-Flower Mound, served as the clearinghouses for reform ideas, refereeing the bitter debate over whether the state schools were even worth saving. Advocates for community-based care argued that the state schools were dangerous and inefficient; state school families said community care was inadequate and under-regulated.
Meanwhile, Perry chief of staff Jay Kimbrough used his experience reforming the Texas Youth Commission to devise a safety plan for the state schools. Sens. Judith Zaffirini, D-Laredo, and Eliot Shapleigh, D-El Paso, filed individual bills on almost every state school and community care problem – ensuring something would get through. And Sen. Steve Ogden, R-Bryan, the Senate's key budget writer, pulled the trigger, allocating hundreds of millions of dollars to improve care in the state schools and the community.
"I knew the state schools were in trouble, and I just started thinking, 'There has to be a solution to this,' " Ogden said. "I consider it to be one of the more significant things this budget has accomplished."
Schools stay open
The legislation doesn't close or consolidate any of the state schools. It's a relief to state school parents, who feared that's where lawmakers were headed and lobbied vigorously to keep all of them open.
That's a disappointment to many disability rights advocates, who testified on horrific abuse inside the facilities with the knowledge that their efforts to close the facilities – not reform them – might backfire.
"It's not some sort of philosophical turf battle; it's proven that what's best for people with disabilities is to live in the community," said Robert Stack, president and CEO of Community Options Inc., which operates group homes and foster care placements in Texas and other states. "The state schools really can't be fixed."
Nor do the measures provide a vision for the future of disability services in Texas. Efforts to create a strategic plan for Texas' state schools, which have watched their census decline as community care has expanded, passed the Senate but fell short in the House.
Any hard numbers capping the state school population were stripped out, over objections from lawmakers who fear the loss of jobs if facilities in their districts close.
"There's still so much fragmentation and confusion, so many significant problems, in the system," said Colleen Horton, public policy director for the University of Texas' Center for Disability Studies. "We're not stepping back to look at where we want to be in the future."