81R4124 SKB-D
By: Ellis S.C.R. No. 45
CONCURRENT RESOLUTION
WHEREAS, Certain current and former residents of Texas state
schools allege that:
(1) there are 11 state schools and two state centers in
Texas that serve as residential treatment facilities for persons
with developmental disabilities and are operated by the Department
of Aging and Disability Services, including Abilene State School,
Austin State School, Brenham State School, Corpus Christi State
School, Denton State School, El Paso State Center, Lubbock State
School, Lufkin State School, Mexia State School, Richmond State
School, Rio Grande State Center, San Angelo State School, and San
Antonio State School;
(2) individuals with developmental disabilities in a
state institution have a constitutional right to due process as
provided by the Fourteenth Amendment to the United States
Constitution, which includes the right to reasonably safe
conditions of confinement, freedom from unreasonable bodily
restraints, reasonable protection from harm, and adequate food,
shelter, clothing, and medical care;
(3) on March 17, 2005, March 11, 2008, and August 20,
2008, the Department of Justice notified Governor Rick Perry of its
intent to conduct investigations of these state schools and centers
under the Civil Rights of Institutionalized Persons Act (42 U.S.C.
Section 1997 et seq.);
(4) the Department of Justice issued its findings in
the Lubbock State School investigation on December 11, 2006, and
its findings concerning the other state schools and centers on or
about December 1, 2008;
(5) the Department of Justice concluded that numerous
conditions and practices at these state schools and centers violate
the constitutional and federal statutory rights of their residents
and substantially depart from generally accepted professional
standards of care in that they fail to:
(A) provide adequate health care, including
nursing services, psychiatric services, general medical care,
physical therapy, and physical and nutritional management;
(B) protect residents from harm;
(C) provide adequate behavioral services,
freedom from unnecessary or inappropriate restraint, and
habilitation; and
(D) provide services to qualified individuals
with disabilities in the most integrated setting appropriate to
their needs;
(6) these state schools and centers fail to:
(A) provide basic oversight of resident care and
treatment critical to ensuring the reasonable safety of their
residents;
(B) identify risks to prevent foreseeable harm to
their residents; and
(C) respond appropriately once harm to a resident
has occurred;
(7) in 2006 and 2007, the Centers for Medicare and
Medicaid Services identified significant care and safety
deficiencies at more than two-thirds of the state schools and
centers, including instances of immediate jeopardy, which placed
certain facilities in danger of losing Medicaid certification and
funding because the facility's noncompliance with one or more
requirements or conditions of participation in Medicaid had caused
or was likely to cause serious injury, harm, impairment, or death to
an individual receiving care in the facility;
(8) residents of state schools and centers have
suffered significant injuries from inadequate supervision,
neglect, possible abuse, and improper use of restraints as a result
of inadequate oversight and deficient risk and incident management
practices;
(9) the staff of state schools and centers has failed
to carefully monitor residents' risk for choking, failed to respond
appropriately once the staff discovered an apparent choking
episode, and failed on several occasions to identify and monitor
residents after serious pica incidents, which is the craving or
ingestion of nonfood items and can expose a resident to a
substantial risk of choking and dying;
(10) many residents at state schools and centers
suffer significant, preventable injuries resulting from seizures
and falls and are not referred to physicians in a timely manner
following these injuries, which only prolongs the residents' pain
and suffering, and in at least one case in June 2007 a resident died
due to blunt force trauma to the head as the result of a fall;
(11) from January through September 2008, a total of
10,143 restraints were applied to 751 residents, and residents have
suffered black eyes, abrasions, scratches, swelling, bruises,
broken bones, and even death related to use of restraints in state
schools and centers;
(12) staffing shortages at state schools and centers,
due in part to inadequate recruitment, retention, and training,
have greatly compromised nursing care, and inadequate nursing staff
has resulted in hospitalization of residents for unexplained weight
loss, multiple episodes of pneumonia, abdominal distension, and
broken bones, and some residents have died;
(13) from January to September 2008, residents of
state schools and centers were hospitalized on at least 1,409
occasions, many of these being for preventable conditions such as
bowel impaction and obstruction, pneumonia and aspiration
pneumonia, gastroesophageal reflux disease, seizures, and
fractures due to osteoporosis;
(14) at least 114 residents died at one state school
during fiscal year 2008, and 53 of those deaths were related to
aspiration, pneumonia, respiratory failure, sepsis, bowel
obstruction, or failure to thrive, all of which are generally
preventable conditions that result due to lapses in care or failure
to put medical interventions in place in a timely manner;
(15) a significant number of residents of state
schools and centers have been hospitalized for nutritional
management issues, which are due in part to meal cards that are too
superficial to assist staff working with residents they do not know
well and direct care staff who have little knowledge or
appreciation of the critical importance of meal textures, how
residents should be positioned during meal times, or how to
identify and document indicators of possible aspiration, including
coughing, wheezing, watery eyes, and food refusal;
(16) the adequacy of pharmacy services at state
schools and centers is compromised by the fact that many residents
receive psychotropic medications with a vague diagnosis or no
diagnosis at all, which is contrary to generally accepted
professional standards, that once a pharmacist alerts a physician
to a drug interaction or possible contraindication many facilities
do not have a method to track whether a physician has responded to
that alert, and that as a result facility residents may receive
inappropriate or ineffective medication needlessly;
(17) psychiatric services at state schools and centers
frequently fall substantially short of generally accepted
professional standards of care, and psychiatrists do not adequately
consider critical factors such as an individual resident's medical
issues, physical injuries, family and psychiatric history, and
comprehensive medication regime, which results in incomplete and
possibly inaccurate assessments;
(18) the lack of collaboration and communication
between psychiatrists and psychologists concerning medication,
psychotherapy, and other non-medication-related treatment options
severely compromises the quality of care residents at state schools
and centers receive and is a substantial deviation from accepted
standards of care, because treatment altered by one specialty could
destabilize treatment from the other specialty;
(19) from July through September 2008, residents of
state schools and centers were reportedly injured at least 4,847
times as a result of other residents' aggression, which
demonstrates that violent behavioral events are a daily occurrence
at many state schools and centers, and these reported incidents do
not include the number of other violent behavioral events that did
not result in injuries and therefore were not reported;
(20) state schools and centers do not meet or comport
with generally accepted professional standards in the area of
behavioral assessments and interventions, monitoring and
evaluation, or professional review of behavioral support plans by
individuals with expertise in applied behavior analysis and in the
development and implementation of behavioral supports, and
psychology department staff of some state schools and centers
significantly lack expertise in applied behavior analysis;
(21) existing habilitation programs at state schools
and centers are insufficient in that they do not focus on basic
skills of independence, such as dressing oneself or learning to
cross the street safely, but include repetitious assignments that,
separated from any practical purpose, engender frustration,
boredom, and behavioral outbursts;
(22) the Department of Justice has described the
quality of skill-acquisition training programs at state schools and
centers as "often strikingly poor" and has noted that these
programs fall far short of generally accepted standards of care and
federal regulations;
(23) state schools and centers typically fail to
provide residents with adequate and appropriate training in
communication skills and services, which can result in a resident's
inability to convey basic needs and concerns, increase the
likelihood that the resident will engage in maladaptive behaviors
as a form of communication, put the resident at risk of bodily
injury and psychological harm, result in difficulty for staff in
recognizing and diagnosing health issues, and hinder the
individual's ability to be integrated into community settings;
(24) although the volume of the allegations by the
Centers for Medicare and Medicaid Services varies with each
facility, the nature and severity of the allegations are
consistently significant, and the state's own statistics
demonstrate that these problems are system-wide;
(25) the Department of Justice has characterized the
frequency and severity of critical incidents at state schools and
centers as "disturbingly high" and has noted that these incidences
are often directly related to insufficient staffing;
(26) more than 800 employees of state schools and
centers have been suspended or fired for abusing residents of those
facilities since fiscal year 2004, and more than 439 employees of
state schools and centers have been fired during fiscal years 2006
and 2007 for abuse, neglect, or exploitation of residents;
(27) state records indicate that there were 450
confirmed incidents of abuse or neglect in state schools and
centers in fiscal year 2007, and in July, August, and September of
2008, state schools and centers opened at least 501 investigations
into alleged incidents of abuse, neglect, or mistreatment; and
(28) in the letter from the Department of Justice to
Governor Rick Perry, the department has given Governor Perry notice
that the attorney general may institute a lawsuit under the Civil
Rights of Institutionalized Persons Act (42 U.S.C. Section 1997 et
seq.) if the department's concerns as addressed in that letter are
unresolved; now, therefore, be it
RESOLVED by the Legislature of the State of Texas, That
current and former residents of Texas state schools and centers who
have been injured as a result of their residency in those
facilities, and the guardians or family members of those current
and former residents, are granted permission to sue the State of
Texas and Department of Aging and Disability Services subject to
Chapter 107, Civil Practice and Remedies Code; and, be it further
RESOLVED, That the commissioner of aging and disability
services and the attorney general be served process as provided by
Section 107.002(a)(3), Civil Practice and Remedies Code.