Texas 2009 - 81st Regular

Texas Senate Bill SCR45 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R4124 SKB-D
2	2	By: Ellis S.C.R. No. 45
3	3
4	4
5	5	CONCURRENT RESOLUTION
6	6	WHEREAS, Certain current and former residents of Texas state
7	7	schools allege that:
8	8	(1) there are 11 state schools and two state centers in
9	9	Texas that serve as residential treatment facilities for persons
10	10	with developmental disabilities and are operated by the Department
11	11	of Aging and Disability Services, including Abilene State School,
12	12	Austin State School, Brenham State School, Corpus Christi State
13	13	School, Denton State School, El Paso State Center, Lubbock State
14	14	School, Lufkin State School, Mexia State School, Richmond State
15	15	School, Rio Grande State Center, San Angelo State School, and San
16	16	Antonio State School;
17	17	(2) individuals with developmental disabilities in a
18	18	state institution have a constitutional right to due process as
19	19	provided by the Fourteenth Amendment to the United States
20	20	Constitution, which includes the right to reasonably safe
21	21	conditions of confinement, freedom from unreasonable bodily
22	22	restraints, reasonable protection from harm, and adequate food,
23	23	shelter, clothing, and medical care;
24	24	(3) on March 17, 2005, March 11, 2008, and August 20,
25	25	2008, the Department of Justice notified Governor Rick Perry of its
26	26	intent to conduct investigations of these state schools and centers
27	27	under the Civil Rights of Institutionalized Persons Act (42 U.S.C.
28	28	Section 1997 et seq.);
29	29	(4) the Department of Justice issued its findings in
30	30	the Lubbock State School investigation on December 11, 2006, and
31	31	its findings concerning the other state schools and centers on or
32	32	about December 1, 2008;
33	33	(5) the Department of Justice concluded that numerous
34	34	conditions and practices at these state schools and centers violate
35	35	the constitutional and federal statutory rights of their residents
36	36	and substantially depart from generally accepted professional
37	37	standards of care in that they fail to:
38	38	(A) provide adequate health care, including
39	39	nursing services, psychiatric services, general medical care,
40	40	physical therapy, and physical and nutritional management;
41	41	(B) protect residents from harm;
42	42	(C) provide adequate behavioral services,
43	43	freedom from unnecessary or inappropriate restraint, and
44	44	habilitation; and
45	45	(D) provide services to qualified individuals
46	46	with disabilities in the most integrated setting appropriate to
47	47	their needs;
48	48	(6) these state schools and centers fail to:
49	49	(A) provide basic oversight of resident care and
50	50	treatment critical to ensuring the reasonable safety of their
51	51	residents;
52	52	(B) identify risks to prevent foreseeable harm to
53	53	their residents; and
54	54	(C) respond appropriately once harm to a resident
55	55	has occurred;
56	56	(7) in 2006 and 2007, the Centers for Medicare and
57	57	Medicaid Services identified significant care and safety
58	58	deficiencies at more than two-thirds of the state schools and
59	59	centers, including instances of immediate jeopardy, which placed
60	60	certain facilities in danger of losing Medicaid certification and
61	61	funding because the facility's noncompliance with one or more
62	62	requirements or conditions of participation in Medicaid had caused
63	63	or was likely to cause serious injury, harm, impairment, or death to
64	64	an individual receiving care in the facility;
65	65	(8) residents of state schools and centers have
66	66	suffered significant injuries from inadequate supervision,
67	67	neglect, possible abuse, and improper use of restraints as a result
68	68	of inadequate oversight and deficient risk and incident management
69	69	practices;
70	70	(9) the staff of state schools and centers has failed
71	71	to carefully monitor residents' risk for choking, failed to respond
72	72	appropriately once the staff discovered an apparent choking
73	73	episode, and failed on several occasions to identify and monitor
74	74	residents after serious pica incidents, which is the craving or
75	75	ingestion of nonfood items and can expose a resident to a
76	76	substantial risk of choking and dying;
77	77	(10) many residents at state schools and centers
78	78	suffer significant, preventable injuries resulting from seizures
79	79	and falls and are not referred to physicians in a timely manner
80	80	following these injuries, which only prolongs the residents' pain
81	81	and suffering, and in at least one case in June 2007 a resident died
82	82	due to blunt force trauma to the head as the result of a fall;
83	83	(11) from January through September 2008, a total of
84	84	10,143 restraints were applied to 751 residents, and residents have
85	85	suffered black eyes, abrasions, scratches, swelling, bruises,
86	86	broken bones, and even death related to use of restraints in state
87	87	schools and centers;
88	88	(12) staffing shortages at state schools and centers,
89	89	due in part to inadequate recruitment, retention, and training,
90	90	have greatly compromised nursing care, and inadequate nursing staff
91	91	has resulted in hospitalization of residents for unexplained weight
92	92	loss, multiple episodes of pneumonia, abdominal distension, and
93	93	broken bones, and some residents have died;
94	94	(13) from January to September 2008, residents of
95	95	state schools and centers were hospitalized on at least 1,409
96	96	occasions, many of these being for preventable conditions such as
97	97	bowel impaction and obstruction, pneumonia and aspiration
98	98	pneumonia, gastroesophageal reflux disease, seizures, and
99	99	fractures due to osteoporosis;
100	100	(14) at least 114 residents died at one state school
101	101	during fiscal year 2008, and 53 of those deaths were related to
102	102	aspiration, pneumonia, respiratory failure, sepsis, bowel
103	103	obstruction, or failure to thrive, all of which are generally
104	104	preventable conditions that result due to lapses in care or failure
105	105	to put medical interventions in place in a timely manner;
106	106	(15) a significant number of residents of state
107	107	schools and centers have been hospitalized for nutritional
108	108	management issues, which are due in part to meal cards that are too
109	109	superficial to assist staff working with residents they do not know
110	110	well and direct care staff who have little knowledge or
111	111	appreciation of the critical importance of meal textures, how
112	112	residents should be positioned during meal times, or how to
113	113	identify and document indicators of possible aspiration, including
114	114	coughing, wheezing, watery eyes, and food refusal;
115	115	(16) the adequacy of pharmacy services at state
116	116	schools and centers is compromised by the fact that many residents
117	117	receive psychotropic medications with a vague diagnosis or no
118	118	diagnosis at all, which is contrary to generally accepted
119	119	professional standards, that once a pharmacist alerts a physician
120	120	to a drug interaction or possible contraindication many facilities
121	121	do not have a method to track whether a physician has responded to
122	122	that alert, and that as a result facility residents may receive
123	123	inappropriate or ineffective medication needlessly;
124	124	(17) psychiatric services at state schools and centers
125	125	frequently fall substantially short of generally accepted
126	126	professional standards of care, and psychiatrists do not adequately
127	127	consider critical factors such as an individual resident's medical
128	128	issues, physical injuries, family and psychiatric history, and
129	129	comprehensive medication regime, which results in incomplete and
130	130	possibly inaccurate assessments;
131	131	(18) the lack of collaboration and communication
132	132	between psychiatrists and psychologists concerning medication,
133	133	psychotherapy, and other non-medication-related treatment options
134	134	severely compromises the quality of care residents at state schools
135	135	and centers receive and is a substantial deviation from accepted
136	136	standards of care, because treatment altered by one specialty could
137	137	destabilize treatment from the other specialty;
138	138	(19) from July through September 2008, residents of
139	139	state schools and centers were reportedly injured at least 4,847
140	140	times as a result of other residents' aggression, which
141	141	demonstrates that violent behavioral events are a daily occurrence
142	142	at many state schools and centers, and these reported incidents do
143	143	not include the number of other violent behavioral events that did
144	144	not result in injuries and therefore were not reported;
145	145	(20) state schools and centers do not meet or comport
146	146	with generally accepted professional standards in the area of
147	147	behavioral assessments and interventions, monitoring and
148	148	evaluation, or professional review of behavioral support plans by
149	149	individuals with expertise in applied behavior analysis and in the
150	150	development and implementation of behavioral supports, and
151	151	psychology department staff of some state schools and centers
152	152	significantly lack expertise in applied behavior analysis;
153	153	(21) existing habilitation programs at state schools
154	154	and centers are insufficient in that they do not focus on basic
155	155	skills of independence, such as dressing oneself or learning to
156	156	cross the street safely, but include repetitious assignments that,
157	157	separated from any practical purpose, engender frustration,
158	158	boredom, and behavioral outbursts;
159	159	(22) the Department of Justice has described the
160	160	quality of skill-acquisition training programs at state schools and
161	161	centers as "often strikingly poor" and has noted that these
162	162	programs fall far short of generally accepted standards of care and
163	163	federal regulations;
164	164	(23) state schools and centers typically fail to
165	165	provide residents with adequate and appropriate training in
166	166	communication skills and services, which can result in a resident's
167	167	inability to convey basic needs and concerns, increase the
168	168	likelihood that the resident will engage in maladaptive behaviors
169	169	as a form of communication, put the resident at risk of bodily
170	170	injury and psychological harm, result in difficulty for staff in
171	171	recognizing and diagnosing health issues, and hinder the
172	172	individual's ability to be integrated into community settings;
173	173	(24) although the volume of the allegations by the
174	174	Centers for Medicare and Medicaid Services varies with each
175	175	facility, the nature and severity of the allegations are
176	176	consistently significant, and the state's own statistics
177	177	demonstrate that these problems are system-wide;
178	178	(25) the Department of Justice has characterized the
179	179	frequency and severity of critical incidents at state schools and
180	180	centers as "disturbingly high" and has noted that these incidences
181	181	are often directly related to insufficient staffing;
182	182	(26) more than 800 employees of state schools and
183	183	centers have been suspended or fired for abusing residents of those
184	184	facilities since fiscal year 2004, and more than 439 employees of
185	185	state schools and centers have been fired during fiscal years 2006
186	186	and 2007 for abuse, neglect, or exploitation of residents;
187	187	(27) state records indicate that there were 450
188	188	confirmed incidents of abuse or neglect in state schools and
189	189	centers in fiscal year 2007, and in July, August, and September of
190	190	2008, state schools and centers opened at least 501 investigations
191	191	into alleged incidents of abuse, neglect, or mistreatment; and
192	192	(28) in the letter from the Department of Justice to
193	193	Governor Rick Perry, the department has given Governor Perry notice
194	194	that the attorney general may institute a lawsuit under the Civil
195	195	Rights of Institutionalized Persons Act (42 U.S.C. Section 1997 et
196	196	seq.) if the department's concerns as addressed in that letter are
197	197	unresolved; now, therefore, be it
198	198	RESOLVED by the Legislature of the State of Texas, That
199	199	current and former residents of Texas state schools and centers who
200	200	have been injured as a result of their residency in those
201	201	facilities, and the guardians or family members of those current
202	202	and former residents, are granted permission to sue the State of
203	203	Texas and Department of Aging and Disability Services subject to
204	204	Chapter 107, Civil Practice and Remedies Code; and, be it further
205	205	RESOLVED, That the commissioner of aging and disability
206	206	services and the attorney general be served process as provided by
207	207	Section 107.002(a)(3), Civil Practice and Remedies Code.