'Fight club' lawsuit against top officials to proceed Judge says 4 top officials won't be dropped; trial set for July.

By Corrie MacLaggan

AMERICAN-STATESMAN STAFF

Published: 9:56 p.m. Tuesday, April 27, 2010

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A judge has denied a request from four state officials who asked to be dropped from a lawsuit over a so-called fight club at a Corpus Christi facility for people with mental disabilities.

The officials — including now-retired Department of Aging and Disability Services Commissioner Addie Horn — had argued that they should be exempt from the suit because of qualified immunity, which protects government employees from being sued unless they knowingly violate the law or are clearly incompetent.

But in the ruling on the pretrial motion, U.S. District Judge Janis Graham Jack wrote that a jury could reasonably find that the officials "failed to exercise professional judgment by providing inadequate security."

The judge also denied the officials' request to dismiss the lawsuit.

State officials are appealing to the 5th U.S. Circuit Court of Appeals. The case is scheduled for trial July 2.

Jack granted a request by a fifth administrator to be dropped from the suit.

Robert Hilliard , a lawyer for three of the five residents suing administrators and on-site staffers, commended the ruling.

"This is the most important part of the case in making sure there is responsibility all the way up the food chain," Hilliard said. Holding top officials accountable, he said, "will prevent in the future the slow erosion of safety measures for the residents."

Lawyers for the residents argue that the officials should have known before the 2008 and 2009 fight club incidents that more security was necessary, in part because of a Department of Justice investigation that began in 2005 that concluded that the 13 Texas facilities fail to protect residents from harm. The Justice Department is still monitoring the facilities, now called state supported living centers, which are home to 4,300 Texans.

But Texas Attorney General Greg Abbott, who is representing the administrators, wrote in court documents that Horn and the others took action to address the issues raised by the Justice Department. For example, he wrote, Horn lobbied the Legislature to increase staffing for the centers and mandated retraining for staff on abuse and neglect.

"It is simply false, conclusory and self-serving for the plaintiffs to even suggest that the defendants 'did nothing' in the face of DOJ's allegations," Abbott wrote. "The evidence overwhelmingly demonstrates that the Defendants responded immediately to the DOJ's concerns."

In addition to Horn, the officials being sued are: Barry Waller , former assistant commissioner (he retired in December); Denise Geredine , former director of state schools (she now works elsewhere in the department); and Iva Benson , superintendent of the Corpus Christi State School (she has the same job, but the title has been renamed "director," and the facility is now known as Corpus Christi State Supported Living Center).

Deputy Commissioner Jon Weizenbaum was dropped from the suit because he did not directly oversee the institutions, Jacks ruled.

The suit was filed last year by the family of one resident; it was later expanded to include five residents. In court documents, residents say they were forced to fight other residents for staffers' amusement. The lawsuit says the residents were "punched, kicked, chased, smothered with pillows, wrestled, humiliated, threatened and terrorized." And it says staff members yelled at residents to "fight him, fight him ... beat him up."

Lawyers said in court documents that the officials failed to provide adequate supervision, security, staffing and monitoring of staff, and that they should have known more security was needed.

In 2007, there were 1,013 allegations of abuse, neglect or exploitation — and 51 confirmed cases — at the 430-bed facility, according to court documents. That year, administrators had seen enough of an increase in horseplay that a facility official sent a warning to staffers that such incidents would not be tolerated.

And state Rep. Abel Herrero, D-Robstown , had been demanding increased security at the facility since 2007, lawyers for the residents say. Herrero, whose district includes the Corpus Christi facility, said Tuesday that the judge's ruling demonstrates that "there is some evidence to show that the fight club incidents at the state school may have been prevented if those with supervisory authority had acted expeditiously, decisively and thoroughly in addressing the systematic deficiencies they knew — or should have known — existed at the time."

Disturbing findings in wake of 'fight club'

By TERRI LANGFORD

Copyright 2010 Houston Chronicle (Link)

March 22, 2010, 10:24PM

Criminal fingerprint checks show at least 36 employees continued to work on the state payroll while caring for the mentally disabled — despite being arrested for felonies ranging from indecent exposure, to aggravated assault, child rape and murder.

Of those 36 with arrests, 17 had felony convictions and the remaining 19 still face trial, according to Texas Department of Aging and Disability Services records released to the Houston Chronicle Monday.

The release of the records, first requested six weeks ago, came on the eve of a House committee meeting Tuesday in which lawmakers will discuss for the first time what improvements have been made regarding care at the facilities in the wake of last year's shocking “fight club” incident in Corpus Christi.

While that's less than one percent of the 11,785 DADS employees who were fingerprinted and work at 13 State-Supported Living Centers, formerly known as state schools, the newest reform shows how pre-employment criminal background screens failed to alert the state to employees with criminal records.

Current pre-employment screening only checks for convictions in Texas. The fingerprint checks linked employees to convictions and arrests outside of Texas. Of the 17 with convictions, 13 have been terminated or resigned. The other four are still in “process” according to the agency, which released the numbers without comment.

“Of course it still matters. That amount of people has control over a handful of residents who are unable to communicate abuse or neglect or ward off that type of aggression,” said Beth Mitchell, senior managing attorney for Advocacy Inc., a group that has fought for better care of the mentally disabled in Texas. “You don't want someone like that corrupting other staff. That's what we saw in Corpus Christi. It only took one staff to corrupt a group of staff in the fight club.”

Cell phone fight videos

The incident, at what has now been renamed Corpus Christi State-Supported Living Center, was discovered by police a year ago when a lost cell phone had videos of mentally disabled residents fighting. Voices of the residents' state caretakers could be heard encouraging the residents to fight one another. Since then, four former DADS workers have been convicted as a result.

The fingerprint checks and another new reform, random drug testing — which snared 23 DADS employees who tested positive for drug use — are the only significant progress seen in the year since the cell phone video surfaced and since DADS entered into a settlement late last year with the U.S. Department of Justice.

A “baseline” report on the Corpus Christi facility, the first of 13 to be conducted on each center as part of that DOJ agreement, shows little has been done since the fight club scandal put Texas' care of the mentally disabled in the spotlight.

While the March 10 monitoring report of Corpus Christi State-Supported Living Center revealed “a number of good practices in place,” it also noted “a number of the areas in which there is a need for improvement.”

For example, in the past year, the state has yet to establish a “zero tolerance” of abuse at Corpus Christi, there are no full-time psychiatrists on staff in the Corpus facility and no standard diagnostic procedure in place for residents with psychiatric problems.

“It's pretty clear from the report that they're really far behind in meeting the criteria of the DOJ settlement,” Mitchell said.

Also, the DADS staff in Corpus has not come up with better ways to monitor the physical and nutritional needs of their residents and are not able to pinpoint those residents who are at-risk of abuse.

“The Facility is at the very beginning stages of implementing the process of screening individuals to determine if they fall into an at-risk category,” the report stated.

Documentation problems

In many areas, the monitors noted the Corpus Christi facility failed to keep proper documentation on residents. Dental care records were missing, as was proof that staff reviewed some residents' medication and allergies. The current forms being used at the Corpus Christi center failed to document residents' vocational strengths, needs or preferences.

A spokeswoman for state Rep. Patrick Rose, D-Dripping Springs, the chair of the House Committee on Human Services, said Rose would not be making any comments about the report until Tuesday's meeting. Calls to other members, including state Rep. Abel Herrero, the committee's vice chair, were not returned.

terri.langford@chron.com

Report: State facility for people with disabilities lacks psychiatrists, trained therapists

Report: State facility for people with disabilities lacks psychiatrists, trained therapists

Posted using ShareThis

By Corrie MacLaggan

AMERICAN-STATESMAN STAFF

Published: 8:54 p.m. Friday, March 19, 2010

Nine months after Texas and the U.S. Department of Justice entered into a settlement to improve health care and more quickly investigate reports of abuse and neglect at state institutions for people with mental disabilities, the facility in Corpus Christi doesn't have staff psychiatrists, has therapists who are ill-equipped to work with people with complex needs and doesn't have a clear zero-tolerance policy for abuse and neglect.

That's according to a new report on the Corpus Christi State Supported Living Center, the first issued by monitors reviewing the 13 institutions as part of the settlement. On Tuesday, the state House Committee on Human Services is set to examine progress at the facilities.

"The state-supported living centers, specifically Corpus Christi, are overwhelmed in meeting their responsibilities for caring for people with intellectual disabilities," said state Rep. Abel Herrero , D-Robstown , who is vice chairman of the committee and whose district includes the Corpus Christi facility.

The report says that the culture appears to be changing for the better at Corpus Christi, where last year staff members were found to have been organizing fights among residents. Staff members seemed to know to report suspected abuse and neglect immediately, and when asked how, they consistently flipped over their badges to show a sticker with instructions. And residents "appeared happily engaged" in activities, the report said.

But it also said that people who might benefit from alternative communication devices don't have access to them, and that residents are over-prescribed psychotropic drugs.

"We agree that there are many areas of concern, many areas in which we need to make changes and improvements," said Cecilia Fedorov , a spokeswoman for the Department of Aging and Disability Services .

The preliminary report about Corpus Christi — reports on the other institutions are expected by summer — isn't evaluating whether the facility is adhering to the settlement terms. That comes later, and the monitors will review each facility every six months until it has been in compliance for a year — a process Fedorov said could take five years or more.

The settlement is the culmination of a Justice Department investigation that began in 2005 at the Lubbock State School after reports of abuse and neglect and later expanded to the other facilities.

In addition to the changes required by the settlement, the Legislature last year mandated video cameras in common areas (they're in place in Corpus Christi but not yet elsewhere); random drug testing of the 12,500 employees (16 have been fired for testing positive, and seven resigned instead of getting tested); and fingerprint background checks for employees and volunteers (these are taking place, officials said).

"Although there are encouraging signs of progress, we still have a long way to go in making the system the best it can be for this vulnerable population," said state Sen. Jane Nelson, R-Flower Mound, chairwoman of the Health and Human Services Committee and author of reform legislation.

In the report on Corpus Christi, the monitors noted that the limited availability of psychiatry services — there are two part-time consulting psychiatrists but no full-time staffers — "appears to have a negative impact on the delivery of services."

Fedorov said that the department is "aggressively recruiting" to find two staff psychiatrists. "We, like everybody who does deal with behavioral health, are competing for very few licensed and qualified psychiatrists," she said.

On the drug issue, the report gave an example of a resident whose behavior deteriorated after his mother's death. He threw temper tantrums, destroyed property and manipulated staff members.

Instead of a behavior management program, "the psychiatrist is prescribing potentially hazardous and dubiously effective drugs to stop the behaviors," the report said.

Beth Mitchell, managing attorney of Advocacy Inc., which advocates for Texans with disabilities, said the communication aid issue raised in the report shows how far behind the centers are in providing adequate care.

"Communication is often the reason people have behavior problems," she said. "If you can't communicate, you act out."

Mitchell also said she's worried about the lack of a clear zero-tolerance policy. "This is a place where people were being beat up, and you don't have zero tolerance?" she said.

Fedorov said that the department does not tolerate abuse and neglect, but that "we need to take steps to make sure that the policy is even more clear to everybody who comes on campus."

As part of a new legislative requirement, Gov. Rick Perry in February appointed an ombudsman for state supported living centers. George Bithos , a dentist and ordained Greek Orthodox deacon, has been visiting campuses since starting the job.

"I have found very dedicated people and people that are open to being looked at," Bithos said. "I've been impressed with the quality of the people, yet I'm aware that there are problems \u2026 that we'll need to take very seriously."

cmaclaggan@statesman.com; 445-3548

The Buck Stops Where?

by Emily Ramshaw
February 24, 2010

The attack ad could write itself: On Gov. Rick Perry’s watch, Texas weathered a sexual abuse scandal at the Texas Youth Commission, fight clubs at state institutions for the disabled and deaths of kids monitored by Child Protective Services.

But three of the biggest messes of Perry’s 10-year tenure — two of which spurred U.S. Justice Department investigations — have been noticeably absent on the campaign trail. While U.S. Sen. Kay Bailey Hutchison, Perry’s chief Republican primary opponent, has hit the airwaves on toll roads, immigration and education, she has largely steered clear of these high-profile social services debacles.

Perry spokesman Mark Miner says the agency crises haven’t been campaign issues because the governor did such an effective job managing them. “With CPS, the state schools, the TYC, those are issues the governor has provided leadership on,” Miner says. “When there were problems, he took immediate action.”

Critics say that’s untrue: Concerns about abuse, neglect and poor living conditions had been raised for years before the scandals erupted. Political consultants say Hutchison’s decision not to target those issues has more to do with what she thinks resonates with typical primary voters — and what doesn’t. “The fight clubs, the problems at the TYC — those are horrific things,” says Hutchison campaign manager Terry Sullivan. “But what we’re really trying to focus on are the issues that affect everyday Texans: eminent domain, land grabs, cronyism.”

The blame game

Years of poor staffing and overwhelming caseloads at Texas Child Protective Services finally came to a head in 2004, when children the state was supposed to be monitoring were killed by abusive parents.

Three years later, reports surfaced that administrators at a West Texas juvenile justice lock-up were sexually abusing boys in their care, and a sweeping inquiry turned up widespread sexual and physical abuse throughout the state's youth prisons.

And in 2009, investigators learned that employees at a Corpus Christi state institution were forcing disabled residents into a fighting ring, revelations that uncovered more abusive conditions at other facilities.

In each of these cases, watchdogs had been making noise for years — well before Perry was in office. They sent letters to the governor's staff, to lawmakers and to agency commissioners, and showed up to testify at public hearings. When the headline-making scandals broke, Perry took action: making urgent legislative priorities of the crises, allocating emergency dollars or dispatching his top troubleshooter to the agency.

So is it fair to pin the scandals on the chief executive? Some say yes: The buck always stops with the governor. Others say no: Nothing he could have done would have prevented these tragedies. Still others say he shares the blame with agency heads, state lawmakers and the rest of Texas' elected officials. Texas Tribune pollster and University of Texas government professorDaron Shaw says the reality is that these issues only work, politically speaking, when the incumbent can be definitively blamed for them. Shaw says voters tend to hold mayors, city council members, even state representatives accountable — but that at higher levels of government, the blame gets spread around. “Texas is so disaggregated that most people don’t hold Perry responsible for something like CPS,” he says.

Some political consultants say quietly that the truth is that primary voters simply aren’t interested in another agency sob story. They don't relate; only a tiny fraction of voters have kids in TYC lock-ups or relatives in state institutions. Other political operatives say that in order to hit Perry on these agency issues, Hutchison would have to have her own solutions. Solutions cost money, and increased spending doesn’t sit well with tight-belted Republican primary voters.

But Democratic consultant Harold Cook says that across the board, voters care about anything involving children — and anything involving government dysfunction. “In any poll, in any demographic, everybody’s going to care deeply about children,” he says. “I know [these issues] would work with general election voters and would undoubtedly work with some subset of primary voters.”

The one big social issue Hutchison has homed in on is Perry’s support for mandatory HPV vaccines for adolescent girls, but that issue is far more politically charged than the TYC or the state schools. Hutchison was silent on the Cameron Todd Willingham death penalty case, which looked to some like a high-profile fumble for Perry but would have jeopardized Hutchison’s already fragile relationship with Texas voters, who overwhelming favor the death penalty.

The social services failings might have worked for Hutchison's camp if they’d been woven into a compelling narrative, Shaw says, one that painted Perry as incompetent. Instead, he says, Hutchison has settled on the “Perry as corrupt” approach, though he says the campaign is struggling with that message, too. “They’ve found their voice some, with this idea of Perry putting insiders in office, making special deals,” Shaw says. “But it’s a bit of a reach. And there’s a sense of, ‘He’s been governor for nine years, and this is the best stuff you can come up with?’”

Abuse of Power

Link to Texas Tribune

by Emily Ramshaw
January 20, 2010

State employees fired for abusing Texas’ most profoundly disabled citizens are rarely prosecuted for their acts — even when they’re heinous.

A Texas Tribune review of a decade’s worth of abuse and neglect firings at state institutions for people with disabilities found that just 16 percent of the most violent or negligent employees were ever charged with crimes. Of those, the overwhelming majority had their charges reduced or dismissed; just three percent served jail time. Among the abusive employees who were never charged? An employee who punched and kicked a mentally disabled man, fracturing his ribs and lacerating his liver. An employee who sexually assaulted an immobile resident while he was giving him a bath. And a worker who used his belt to repeatedly whip a disabled resident across the face and mouth.

Elected officials, who have been under pressure from the U.S. Justice Department to improve conditions at Texas’ 13 state-supported living centers, say the lack of prosecutions is troubling — but that they can't force local district attorneys to do it.

Meanwhile, local authorities say institutional abuse cases are particularly tough to prove. The victims often can’t verbalize what happened to them. The eyewitnesses are unreliable. And just because an act of abuse is a fireable offense doesn’t mean it rises to the level of criminal conduct or even gets reported to prosecutors.

Advocacy groups say the investigation suggests a breakdown between state abuse investigators and local authorities. It also confirms their worst fear: that there’s no equal justice for people with disabilities. Unless an abuse case receives widespread media attention, like last year’s “fight club” at the Corpus Christi State School, it rarely warrants criminal charges. “If you’re the most vulnerable citizen in Texas and you’re beaten mercilessly, your perpetrator is not held accountable,” said Jeff Garrison-Tate, whose non-profit Community Now! advocates for the nearly 4,600 disabled Texans living in state institutions. “This is what perpetuates a culture of abuse in this state.”

Roughly 300 state school employees are fired or suspended every year for abusing or neglecting residents in Texas’ state-supported living centers. Since 2000, about 75 employees have been fired for “Class 1 Abuse” — the most serious physical or sexual abuse. An extensive Texas Tribune search of county and state arrest records, indictments and other court filings revealed just 13 of these fired employees were ever charged with crimes for their acts. Of those, two served jail time. Three had their cases dismissed. And seven received lesser charges or deferred adjudication in a plea deal. One case is still pending.

One employee who was fired for inserting a hairbrush in a resident's anus and fondling another resident's breasts was never charged with a crime. Neither was a worker who beat a resident in the face because she wouldn't be quiet. The woman had to be rushed to the emergency room for stitches. In another un-prosecuted case, a staffer slammed a resident face first into a door; the man sustained a head wound that required staples to close.

The Blame Game

Ask state agencies, local police and district attorneys why there are so few prosecutions and the finger pointing begins.

The Department of Aging and Disability Services oversees the state institutions and is responsible for firing abusive employees. But it doesn’t conduct abuse and neglect investigations — the Department of Family and Protective Services (DFPS) does it for them. Officials with DFPS say whenever they get an allegation of serious physical injury, sexual abuse or death, they contact local law enforcement within the hour. If their investigation concludes a crime may have been committed, they’re required to forward their investigative report to local authorities. But DFPS doesn’t track what happens next. And police departments say they don’t always get the reports from the state. In some cases they have opened their own investigations ahead of DFPS.

District attorneys who responded to the Texas Tribune’s interview request say they don’t always get the message — either from the state investigators or from police detectives. There’s a precedent here: During the Texas Youth Commission’s sweeping abuse scandal three years ago, thousands of un-prosecuted abuse complaints were found sitting in file folders in local police departments.

"We really like to prosecute the bad guys, the employees who pick on people in state institutions. There's no problem there," said Rob Kepple, executive director of the Texas District and County Attorneys Association. If the prosecutors aren't pursuing cases, "I would surmise we're either not getting them, or they don't rise to the level of a criminal offense."

Even when prosecutors do get the case files, they’re not always able to proceed. In some cases, they say, the act the employee was fired for doesn’t qualify as criminal conduct. In other cases, authorities don’t have the evidence or witnesses to prosecute. And occasionally, when a guilty verdict isn’t a sure bet, they don’t have the resources to make the effort. “Trying to determine who’s the guilty party, and being able to prove they were the ones who inflicted the injuries — that’s especially difficult when you have a victim who is incapacitated,” said Lubbock County District Attorney Matt Powell, whose office has prosecuted more of these Class 1 offenders than any other Texas D.A.'s office. Added Taylor County District Attorney James Eidson:"By their nature, these are pretty much circumstantial cases, which is what makes them so difficult."

And despite the fact that these abusive acts are committed by state employees, inside state-operated institutions, and against people who are sometimes wards of the state, Texas' own attorney general doesn't have the authority to step in. Following the 2007 TYC sexual abuse scandal, and revelations that a West Texas district attorney had failed to prosecute an abusive youth prison administrator, the attorney general's office asked lawmakers for more authority to step in. Lawmakers responded by allowing state prosecutors to offer assistance to local prosecutors. But the attorney general's office still can't intervene to force a prosecution.

"The Legislature has not given the Office of the Attorney General authority to prosecute these cases," said Jerry Strickland, a spokesman for Texas Attorney General Greg Abbott. "Only district attorneys have that authority."

But advocates for the disabled say all of these explanations shroud the real reason abusive employees aren’t prosecuted: because their victims can’t demand it. Many are non-verbal or intellectually impaired. Most either don’t have families to advocate for them, or have out-of-town relatives poorly positioned to keep the pressure on local authorities. In short, advocates say, prosecutors know if they don’t make the effort, no one will hold them accountable.

“If someone saw me on the street kicking my dog, I would be in jail,” Garrison-Tate said. “But when a person with a significant disability in our state-operated, taxpayer-funded institutions is beaten, nothing happens to them.”

TOMORROW: Relatives of a disabled man choked and killed in a state school share their struggle for justice.

Keywords:

• Greg Abbott,
• LUBBOCK,
• Disabilities,
• Corpus Christi fight club,
• Family and Protective Services,
• Department of Aging and Disability Services,
• Texas Youth Commission,
• Attorney General's Office