U.S. official critical of state's living center agreement

Link here to Corrie Maclaggan's Austin American Statesman article

The U.S. Department of Justice's civil rights chief said Friday that an agreement with Texas on fixing state institutions for people with mental disabilities "falls short" on moving people out of the facilities.

"There are just so many people who are being warehoused in these institutions, and I think that's a tragedy," Thomas Perez , assistant attorney general for civil rights , said in an interview in Austin. He was in town to speak at a National Conference of State Legislatures redistricting law seminar.

Last June, the Justice Department and Texas entered into an agreement to improve health care and speed up investigations of abuse and neglect at the 13 facilities now known as state supported living centers. It was the culmination of a federal investigation that began in 2005 at the Lubbock facility after reports of abuse and neglect and later expanded to the other institutions.

Perez, an appointee of President Barack Obama, took office in October — months after the Texas deal was signed. It's not clear whether his objections — which signal a departure from what the Obama administration said at the time the deal was announced — could affect Texas. He said he inherited the agreement and needs "to respect that on a certain level." But now, he said, he'd like to implement far more aggressive agreements with states.

"The paradigm prior to our arrival was: 'Let's just make sure that the facilities are safe,'" he said. "The new paradigm is: 'Question No. 1 — What is your plan for moving eligible people into communities? Step two ... What is your plan for ensuring that the facilities are safe?"

Texas' philosophy, one state official said, "may be a little different."

"In Texas, we support choice," said Stephanie Goodman, a spokeswoman for the Health and Human Services Commission , referring to the options of living in institutions or smaller group homes or enrolling in state programs that help people with disabilities live at home.

Still, the state is committed to ensuring that the population of the institutions continues to decline, said Cecilia Fedorov , a spokeswoman of the Department of Aging and Disability Services. About 4,300 now live in the institutions, down from 5,428 in 2000.

Texas allows people who want to leave state supported living centers to skip over a waiting list for home-based programs, and last year the Legislature expanded the number of spots in home-based programs available to living center residents.

"We need to be doing everything we can to make successful transitions for people who wish to move," Fedorov said.

Perez said that an ideal agreement would have specific numbers of people that the state should move out and timelines of when that should happen.

The Texas agreement requires the state to identify people who want to move out of the institutions, help them make that transition, and make sure their needs are met in their new setting, Fedorov said. But there are no specific numbers on how many people should move out.

Without those specifics, said state Rep. Elliott Naishtat , D-Austin, a member of the House Committee on Human Services, "what we're dealing with is wishful thinking at best."

At the time the agreement was signed, U.S. Attorney General Eric Holder praised it.

"The Justice Department is committed to protecting the fundamental rights of all our citizens," Holder said in a June 2009 press release. "This agreement reflects that principle by protecting the civil rights of some of Texas's most vulnerable residents."

In the 1990s, Texas closed two state institutions as part of a lawsuit settlement. Later, the state considered closing more, but after heated hearings, decided not to.

Susan Payne of College Station, whose sister, Diane Ward , lives at Denton State Supported Living Center, said she finds it "very offensive" that Perez would say people are being "warehoused."

"Family members of people who live at the state supported living centers are very, very aware of the options in the community, and the families have chosen this as the best setting," Payne said.

But Perez said that moving people out of institutions is long overdue.

"It's a heck of a lot easier to have everybody in one setting," he said. "But ease should never trump what is right, and what is constitutional."

cmaclaggan@statesman.com; 445-3548

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

Supreme Court lets nursing home ruling stand: Facilities fair game for civil rights suits - McKnight's Long Term Care News

Supreme Court lets nursing home ruling stand: Facilities fair game for civil rights suits - McKnight's Long Term Care News

A federal appeals court decision in a case involving a skilled nursing facility—a decision once described as “shocking” by the American Health Care Association—has been allowed to stand by the U.S. Supreme Court.

In the case of John J. Kane Regional Centers-Glen Hazel v. Grammer (see McKnight's, 7/7/09), the U.S. Court of Appeals for the Third Circuit ruled that the Federal Nursing Home Reform Amendments (FNHRA) guarantee a nursing home resident's civil rights. As such, a private civil rights lawsuit can be brought against a facility on behalf of a resident in the event of inadequate care and wrongful death. At the time of the decision, an AHCA legal representative decried the ruling, noting that the FNHRA had never been used to allow such a private right of action since their passage in 1987, reports the Bureau of National Affairs.

On Monday, despite a petition from AHCA, the American Association of Homes and Services for the Aging and at least 14 individual states, the nation's highest court denied a review of the Third Circuit ruling. The decision likely will cause both private and state run nursing homes to rethink patient and consumer rights.

The FNHRA were passed in order to provide more oversight of the quality of care and residents rights standards for nursing homes that participate in Medicare and Medicaid

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?’”

Death at Lubbock State School center of Texas statewide controversy

January 27, 3:41 PMDallas Disability ExaminerSteve Carter

Michael Nicholson was killed June 6th, 2009 by his caretakers at the Lubbock State School.
To date, only one arrest has been made. No trial or conviction has been set.

In a heinous act, of abuse of power caretakers at Lubbock State School killed MIchael Nicholson by strangulation. According to a Youtube video (see below) the violent strangulation of Michael occurred because of a dispute over clothes. It seems that Michael did not want to wear the type of clothes issued by the state school, preferring to select his own.

A common theme occurs all to often in homes for the aged and in institutions serving the disabled persons. The theme is about the loss of liberty afforded people simply because they have a disability or are of a certain age. Institutions decide a person cannot make decisons most of us take for granted such as what clothes to wear, when to entertain guests, and whether or not to have a plant in our room.

Certainly most of these do not erupt into the violent abuse that cost Michael Nicholson his life. Yet, the rules are abusive and are made without logic and enforced variably.

Prosecutors and law enforcement personnel do not take crimes against people with disabilities seriously because they "do not make good witnesses". Community Now! is an advocacy organization pushing for better enforcement of acts of abuse against those in institutions.

James "J.T." Templeton

KAYE BENEKE

James 'J.T.' Templeton

Longtime advocate for those with disabilities died Monday.

By Christina Rosales

AMERICAN-STATESMAN STAFF

Updated: 12:31 a.m. Friday, Jan. 29, 2010

Published: 9:56 p.m. Thursday, Jan. 28, 2010

James "J.T." Templeton, born with cerebral palsy and housed for 30 years in a Texas mental institution, wished for an ordinary life. But his advocacy for those with disabilities made his life extraordinary, his friends said.

Templeton died Monday . He was 59.

"Working with him helped develop and open my eyes to the civil rights struggle that people with disabilities are fighting," said Spencer Duran , a project specialist with the Accessible Housing Austin advocacy group.

Templeton moved out of the Austin State School in 1986, following a landmark federal lawsuit filed in 1974 against what was then the Texas Department of Mental Health and Mental Retardation. In the 1990s, he was part of a group that sued the City of Austin to make parks and facilities more accessible. He joined protesters who took over former Gov. Ann Richards' office in September 1991 to urge lawmakers to spend money for state schools on community-based initiatives for the disabled instead.

His close friend Stephanie Thomas said Templeton spoke to numerous lawmakers, including a U.S. Senate committee, and became a "voice for those with disabilities."

Templeton had numerous health problems, including respiratory infections. His partner of 14 years and fellow activist, Karen Greebon , died in 2005.

"He taught me a lot about how people with speech disabilities are not paid attention to," Thomas said. "Anyone can have opinions about how they want to live. They might not write a doctoral thesis about it, but they can make decisions for themselves."

Thomas said Templeton had a fierce activist spirit but a gentle soul. Duran said Templeton was the voice of reason and experience in pushing for affordable housing on Accessible Housing Austin's board of directors.

"People with disabilities are thought of as a barrier to affordability," Duran said. "They have been excluded in the development process."

Thomas said Templeton shared his story of being dependent on and discouraged by workers at the Austin State School who told him he could not make it in the "real world" so lawmakers could see how their decisions affect real people.

"His advocacy for himself and other people and getting out of the state school was an uphill battle," Thomas said. "He looked toward what he wanted to do and kept working for it."

crosales@statesman.com; 445-3766

Find this article at:

http://www.statesman.com/news/local/james-j-t-templeton-201020.html

Hate Crimes Request

January 23, 2010

Tom Perez

United States Department of Justice

Criminal Investigation Division

P.O. Box 66018

Washington D.C. 20035-6018

Dear Mr. Perez,

On behalf of Community Now! a Texas statewide advocacy group with a mission to support people with disabilities to live in their communities please accept this sincere and critical request to investigate numerous former Texas state employees who committed horrific acts of violence against residents of several state institutions for people with intellectual disabilities. Upon investigation and if warranted, we sincerely request that those individuals found guilty of criminal acts be charged by the DOJ with Hate Crimes against people with disabilities. It was recently reported in the Texas Tribune (note enclosed article) that since 2000, 75 former employees were fired because of confirmed Class 1 Abuse. This level of abuse is the most heinous and includes sexual and physical assault, murder and gross neglect. Of those 75 individuals, only two were incarcerated for their crimes.

It appears that in Texas there is no justice for sadists who commit violent crimes against our most vulnerable and at risk citizens. The Department of Aging and Disability Services (DADS), the agency who operates these facilities points to Adult Protective Services, (APS) the agency that investigates abuse and neglect at these facilities. APS points to local law enforcement and local law enforcement points to the County Prosecutors, and the Prosecutors do little to nothing with these cases. And with everyone pointing fingers at everyone else, people in these facilities are abused without accountability thus sending a clear message to other facility staff that you can get away with murder.

Even with state institution reform legislation passed in the previous Texas Legislative Session (SB 643), it appears that the Ombudsman position with increased oversight authority of these facilities has not been appointed by Governor Perry and even with a network of Ombudsman, there is limited authority by the Texas Attorney General to investigate and prosecute state employees with confirmed Class 1 Abuse if the County Prosecutor is not willing to do so.

As you most likely know, Texas entered into a settlement for numerous civil rights violations investigated by the DOJ CRIPPA division. Currently, the conditions of these facilities are being monitored by the DOJ. Hopefully something will come of this monitoring to ensure the safety of those who live in these facilities. Further, the hope is that the DOJ will ensure Olmstead is honored by closely monitoring the right of residents to leave the facility to live in the community upon their request.

Let me be clear, I am not asking for any further investigation from the DOJ regarding CRIPPA. On behalf of Community Now! we strongly request the immediate investigation and charges of Hate Crimes against those perpetrators of these despicable crimes. I was provided your name by the leadership at the Regional Office of Civil Rights. If you are not the right person to make the decision to investigate these crimes, I implore you to forward this letter to the individual charged with leading Hate Crime investigations at the DOJ with all haste. And if this is not within the authority of the DOJ, please provide me with the contact information of the appropriate person and agency to contact.

I look forward to your prompt response and immediate action to our requests. Thank you for your time and consideration.

Sincerely,

David Wittie, President

CC;

Governor Rick Perry

Lt. Governor David Dewhurst

United States Senator Kay Bailey Hutchison

United States Senator John Cornyn

United States Representative Lloyd Doggett

State Senator Steve Ogden

State Senator Jane Nelson

State Representative Patrick Rose

State Representative Abel Herrera

---

Hideously Ironic...

So does anyone have any insight as to how the prosecutors do nothing to people who rape and kill those with disabilities, but this man got 100 years?

Teen with 47 IQ gets 100 years in sex abuse case

Case stems from charges involving the fondling of a 6-year-old neighbor (Link)

updated 6:06 p.m. CT, Wed., June 10, 2009

PARIS, Texas - A teenager who has profound mental disabilities was sentenced to 100 years in prison after pleading guilty to charges in a sex abuse case involving his 6-year-old neighbor.

Aaron Hart, 18, of Paris, was arrested and charged after a neighbor found him fondling her stepson in September. The teen pleaded guilty to five counts, including aggravated sexual assault and indecency by contact, and a jury decided his punishment.

Lamar County Judge Eric Clifford decided to stack the sentences against Hart after jurors settled on two five-year terms and three 30-year terms, The Dallas Morning News reported Wednesday. The judge said neither he nor jurors liked the idea of prison for Hart but they felt there was no other option

"In the state of Texas, there isn't a whole lot you can do with somebody like him," Clifford said.

Diagnosed as mentally disabled
Hart has an IQ of 47 and was diagnosed as mentally disabled as a child. He never learned to read or write and speaks unsteadily.

Despite being a target of bullies, he was courteous, well-behaved and earned money by doing chores for neighbors, supporters said. His parents say he'd never acted out sexually.

"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."

Jurors said they sent the judge notes during deliberations in February, asking about alternatives to prison, but didn't get a clear answer. They believed the judge would order concurrent sentences, jurors said.

District Attorney Gary Young said he sympathized with Hart's situation but stands by his decision to prosecute on five counts. Prosecutors commonly pursue several charges for a single incident to see which the jury will support.

Diversion program not an option
Young said a diversion program was not an option since the law doesn't allow that for serious felonies.

"I hope people will remember he committed a violent sexual crime against a little boy," he said.

Hart's appellate attorney, David Pearson, said the court-appointed doctor did the bare minimum to assess competency and ran tests geared for mental illness, not mental retardation.

He said an appeal will be filed.