http://www.statesman.com/asection/conte ... ews_2.htmlWhen discipline turns fatal
Texas lacks tough law on prone restraint that's banned in three states
By Jonathan Osborne and Mike Ward
AMERICAN-STATESMAN STAFF
Sunday, May 18, 2003
MASON --The deputy's headlights broke the middle-of-nowhere October
darkness as he rolled down the red-dirt road to a campsite.
He fixed his cruiser's spotlight on the scene: tent silhouettes, a small
fire and -- as Mason County Deputy Harold Low would later describe in
his official report -- 17-year-old Chase Moody chest-down, pinned to the
ground by three camp counselors.
Low handcuffed one arm and flipped the boy over. That's when he saw the
vomit and realized that Chase wasn't breathing.
The Richardson teenager did not make it off the hilltop alive that
night, and he wasn't the first to lose his life this way.
Moody was one of thousands of Texas children and tens of thousands
nationwide who have become part of a booming $60 billion industry that
promises to reform teens who have veered off the path of acceptable
behavior.
Whether they have serious psychological problems, rebellious streaks or
parents who have lost their patience, these children soon find
themselves at the mercy of a system for which there is scant oversight
or accountability and spotty record-keeping.
And there is no easy way for parents to compare the track records of
various programs.
The inability to rein in the widespread use of improper physical
restraints, such as the one the state investigators believe was used on
Chase Moody, is emblematic of efforts to regulate the industry itself.
That night, at the On Track therapeutic wilderness program, Chase Moody
became one more name on a list of what are believed to be hundreds of
youth and adults in this country who have died in the past decade after
being held in a physical restraint in a residential care setting.
Chase Moody also became at least the 44th youth or adult in Texas to die
under similar circumstances since 1988. And in the aftermath of his
death, Chase has become the latest reminder of state lawmakers'
unwillingness to pass tougher laws governing restraint that could
prevent other people from dying this way or even to better track the
body count.
"How many more kids have to die before they do something about it?"
Chase's father, Dallas lawyer Charles Moody, asked.
In 1998, at the request of the Hartford (Conn.) Courant, the Harvard
Center for Risk Analysis estimated that 50 to 150 adults and children
die each year during or shortly after being placed in a restraint. The
analysis was based largely on data from the U.S. Department of Health
and Human Services and New York, the only state that in 1998
investigated all deaths in institutions.
The Courant confirmed 142 restraint-related deaths of adults and
children since 1988. The true death count, according to the Courant,
could be three to 10 times higher because many cases are not reported to
authorities,according to the statistical estimate.
In 1999, a report from the U.S. General Accounting Office pointed out
the government's deficiency. (Read more about the GAO's findings about
the lack of regulation and adequate record-keeping of the use of
restraints at statesman.com/specialreports/restraint/).
Four years later, no one knows the toll, largely because efforts to
track or research such deaths have not taken hold in every state or at
the federal level.
At least two more youths have died this year after being restrained: one
in Colorado, the other in California. Chase Moody was at least the third
youth to die in Texas last year.
Just two days before Chase's death, on Oct. 12, Maria Mendoza stopped
breathing moments after being placed in a restraint by staff members at
Krause Children's Center in Katy, according to a Department of
Protective and Regulatory Services investigation. The Harris County
medical examiner's office ruled that the 14-year-old died of
"mechanical" or traumatic asphyxiation. In simple terms, that means
external pressure or the position of her body prevented her from
breathing.
In February 2002, 15-year-old Latasha Bush died several days after being
restrained by staff at the Daystar Residential Center in Southeast
Texas, a DPRS investigation concluded. Again, the medical examiner
listed mechanical asphyxiation as the cause of death.
Travis County Deputy Medical Examiner Elizabeth Peacock ruled that Chase
Moody died the same way, choking on a last supper of macaroni and green
beans as crushing pressure on his torso forestalled any draws for air.
The Brown Schools, which owned the camp and based its administrative
operations in Austin, have disputed the autopsy with their own expert,
who contends that Chase died from excited delirium, which means he
became so agitated and enraged that his heart stopped. (Read more about
the medical argument of traumatic asphyxia vs. excited delirium at
statesman.com/specialreports/restraint/.)
Regardless, critics say the tragedy could -- and should --have been
prevented. As Charles Moody told the state Senate Health and Human
Services Committee in April, Chase "choked on his own vomit, and nobody
even knew it."
Little enforcement
Prone restraints, such as the one Chase Moody wound up in, are
discouraged in Texas and many other states, and entirely banned in at
least three.
Texas prison officials consider such restraints so dangerous that they
ban guards from employing the techniques on even the most violent
inmates.
Prison rules prohibit pressure from being applied to a convict's neck,
back, chest or stomach and mandate that "the supervisor shall ensure the
offender is continuously monitored to identify breathing difficulties,
loss of consciousness or other medical concerns, and seek immediate
medical treatment if necessary." They also mandate that offenders shall
be placed onto their side or into a sitting position "as soon as
practicable."
"Once they go to the ground, there can be problems," said Larry Todd,
spokesman for the Texas Department of Criminal Justice.
Texas also is one of a handful of states with strong regulations
limiting the use of restraints in therapeutic settings. However,
regulators lack effective means to enforce their own rules. And in
Texas, even watered-down legislation to ban the potentially fatal
restraints has little chance making a difference, even if approved.
The Texas Department of Protective and Regulatory Services, the agency
responsible for regulating the use of restraint in private 24-hour
residential settings for youth, licenses nine therapeutic wilderness
programs and 77 youth residential treatment centers statewide. The
agency's residential child-care licensing division, which receives a
budget of $2.2 million annually, also is responsible for 65 emergency
shelters and the state's thousands of foster and adoptive homes.
The division's 27 inspectors and 12 investigators visit 24-hour care
facilities, which include wilderness programs and residential treatment
centers, every 5 to 12 months and every time a report is received
related to child abuse, neglect or other violations.
The only available records from the DPRS, which run from 1998 to the
present, show that at least six youths have died during or shortly after
being placed in a physical restraint, including an additional death at a
facility owned by the Brown Schools.
Much of the agency's investigations are kept confidential, and the
documentation released to the American-Statesman is far from complete;
often missing are dates of death, ages, circumstances and any supporting
documentation for the findings.
In one instance, a letter summarizing a 2000 restraint-related death at
a Brown Schools center in San Antonio was a terse four paragraphs that
gave few details. More details from that file were in an attached press
release from the Brown Schools.
In it, the Brown Schools called "natural" the death of a 9-year-old
boy who, according to court documents, was held to the ground until he
vomited and stopped breathing.
Independently, the Statesman has verified -- through media reports,
court documents and watchdog groups -- at least 10 more juvenile deaths
that occurred between 1988 and 1998 in other Texas facilities, some of
which were licensed and regulated by the DPRS, including three more
restraint-related deaths at facilities owned by the Brown Schools.
More deaths have been reported by various advocacy and watchdog groups,
but the details of those could not be independently verified.
Previously, some restraint-related deaths were simply ruled natural and
the details never passed on to any agencies. That happened in the case
of 16-year-old Dawn Renay Perry, who died in 1993 after being placed in
a restraint at the Behavior Training Research center in Manvel near
Houston. Last summer, after a review, the Harris County medical examiner
switched the cause of death from natural to accidental. The girl's
mother has since sued the facility's owners.
Current legislation aims to clean up the reporting process, as well as
to standardize the rules on restraint for every facility that uses the
technique.
The bill would outlaw restraints that obstruct a person's airway, impair
breathing or interfere with someone's ability to communicate.
It would restrict, but not prohibit, the use of prone restraints or
restraints that place a person on his or her back. It also would
establish a multi-agency committee to write new regulations governing
the use of restraints and to develop a better system to collect and
analyze data related to it.
But the bill, sponsored by state Sen. Judith Zaffirini, D-Laredo, stops
short of ascribing criminal penalties, something advocates have long
asked for and an oversight parents of the dead are demanding.
"This bill does nothing," said Charles Moody, who would like to see
violators face felony charges. "It's a joke. All it does is create a
focus group to talk about this issue."
Or as Jerry Boswell, president of Texas chapter of the Citizens
Commission on Human Rights, a mental health watchdog group, said, "It
deceives the public into thinking something meaningful has been done,
and it hasn't."
Aaryce Hayes of Advocacy Inc., a federally funded nonprofit group with
the mandate to review potential cases of abuse and neglect involving
people with disabilities, said the bill would at least lay the
foundation for future legislation.
"It's a start," Hayes said. "If it did (have criminal penalties),
we wouldn't be able to get the bill passed, just like the last two
sessions."
Similar restraint bills have died in the House twice before amid
opposition from some medical and psychiatric groups, as well as from
corporate lobbyists, whose ranks once included Gov. Rick Perry's chief
of staff, Mike Toomey, a former lobbyist for the Brown Schools who
worked his way through college in a Waco residential treatment center
for troubled youth.
Zaffirini said she would have preferred criminal penalties but that
because such penalties could send more people to prison, the potential
fiscal impact in budget-cutting season would kill the bill.
"It's been controversial in the past, and I don't quite understand
why," Zaffirini said. "It's confounding."
The Democrat House members' protest over redistricting last week only
lessens the chances of the bill's passage.
A last-resort tool
In the world of therapy, from wilderness camps to private treatment
centers, restraint is supposed to be a last-resort emergency tool for
residents who pose a danger to themselves or others.
Instead, Hayes said, "What we find quite often is, it wasn't an
emergency until staff intervened."
State reports show that in these facilities, the use of restraint is
widespread. Records also show that restraints are used as a form of
punishment, for the convenience of staff or to simply take control of a
situation.
For example, at a youth ranch outside Brownwood, state documents show,
children were being restrained for crying or simply for moving their
hands. At least one resident was restrained for refusing to go to
school.
In another instance, a 16-year-old boy was belittled, threatened with
the suspension of home visits and grabbed in the face before staff
members took him to the ground, where he died in 1999, according to a
DPRS report.
The report says there is strong evidence that the boy "stopped
struggling with staff -- and was largely unresponsive -- long before the
restraint was terminated."
The report also says it wasn't the first time restraints were misused at
the New Horizons Ranch.
"Serious incident reports indicate that the staff sometimes used
restraint
as punishment, for their convenience or when the child was not
necessarily a danger to themselves or others," the state report says.
Such reasons all violate DPRS regulations but not the law. And the
punishment for breaking the rules is tantamount to forcing the violators
to promise that they'll try not to do it again.
The state's December 1999 response to each of the findings at New
Horizons: Correct the violations immediately.
"After that November investigation, we went out four times during the
course of calendar year 2000," said Geoffrey Wool, the agency's director
of public relations. But the facility was not placed on any kind of
probation.
New Horizons has not received any serious citations since at least
January 2002.
When deaths occur, in Texas or elsewhere, rarely are they prosecuted.
For families of the lost, civil lawsuits often are the only recourse.
But most of those get settled for confidential sums outside the
courtroom and beyond public scrutiny.
In the past five years, the time span for which records are available,
no restraint-related death has led to the revocation of a facility's
license in Texas. And the DPRS has levied no fines against offenders.
"What we are trying to do is work with all these providers to make sure
they provide the care these kids need," Wool said. "We're not out to
hammer providers. We want to help them so they're there to help our
kids."
When a facility is cited for any violation, the operators draw up
a "corrective action plan." And, typically, that's it.
There's no "simple way," Wool said, to determine how many improper
restraints that did not result in death were investigated or whether
they led to serious injuries.
However, inspection and complaint investigations since January 2002 have
recently been put on the agency's Web site and can be searched at
http://www.tdprs.state.tx.us.
An American-Statesman review of those records shows that statewide over
the last 17 months, the DPRS has handed out at least 150
restraint-related citations for violations ranging from minor paperwork
infractions to causing serious injury.
A 'seminal event'
Before Chase's death, On Track had never been cited for using improper
restraints, although its training methods have been called into question
in prior complaints filed with the state that were later verified.
Yet after the onslaught of media attention surrounding Chase's death,
state licensing investigators issued a scathing report that cited On
Track for 28 violations, ranging from improperly restraining Chase as
punishment and using a prohibited method of restraint to improper record
keeping and numerous procedural violations.
Officials with the Brown Schools have repeatedly said the incident was
handled properly.
However, former Brown Schools CEO Marguerite Sallee recognized the
gravity of the situation. She told a meeting of reporters and editors at
the American-Statesman on the day the state's report was released that
Chase's death could be the "seminal event that could bring the whole
company down."
Not six months later, she has left the company to become staff director
for the United States Senate subcommittee on Children and Families in
Washington, a move she said was unrelated to the Chase Moody incident.
It's unclear what would've happened to the wilderness program had it
remained open for business.
The company closed On Track in December after losing the lease to the
6,000-acre exotic-game ranch where the camp was located. Several months
later, it sold off all its residential treatment centers in the country,
including facilities in San Marcos, Austin and San Antonio. Company
officials say the plans to sell the facilities were made before Chase's
death.
A dispute over the state's findings is the company's only lingering
business with the Texas agency.
That argument centers on whether the restraint used on Chase was
performed the right way and for the right reasons.
In their report, state investigators contend that it was neither.
On Oct. 14, the day's activities had ended. According to Mason County
Sheriff M.J. Metzger, Chase and other boys had been told to stop talking
and go to sleep.
Mason County Chief Deputy Sheriff Bill Price said that according to his
investigative notes, Chase wouldn't be quiet and was told to sleep
outside as punishment.
Words were exchanged. Chase, according to a police report, aimed racial
slurs at the Hispanic counselors.
Brown Schools officials, without giving specifics, say Chase then became
violent and lashed out at the staff, placing both himself and the others
at risk.
The sheriff's investigation tells a more detailed story. According to
Price, who based his comments on official statements from all those
involved in the incident, Chase was arguing with one staff member, and
the other two were standing a few steps away.
According to the statements, Price said, Chase walked toward the lone
counselor and "kind of shoved him out of the way." The actual nature
of the physical contact, Price said, was described by different
witnesses as a bump, shove or push.
"We've got different stories," Price said. "I think everybody
agreed there was physical contact."
The counselor Chase confronted, along with another staff member, then
placed Chase in a physical restraint referred to in the industry as the
team control position, wherein staff members interlock legs with the
subject, pull back the wrists and cup their hands on the person's
shoulder.
From there, all parties agree, they fell forward. Price said the third
staff member then joined in the restraint.
"On all these statements here, the staff keeps asking him to comply and
they would let him up, but he kept resisting," Price said, describing
the details in the affidavits.
"We have one resident saying he heard Chase saying he couldn't breathe;
we've got two of them saying that."
After he was contacted by radio, it took Deputy Low about 13 minutes to
wind his way back through the ranch to the campsite.
In the incident report, Low wrote that when he aimed his spotlight at
the scene, he "saw three counselors sitting on the subject, lying face
down," Price said.
The Brown Schools has repeatedly denied that any pressure was placed on
Chase's back.
The state's findings in the separate licensing investigation question
whether the situation qualified as an emergency and accused the staff
members of taunting Chase with remarks that included, "Boy. Who you
calling boy?"
In addition, the report says: * Chase was "subjected to cruel and
unnecessary punishment when he was restrained for talking."
* The restraint was "inappropriately implemented, as it employed a
technique that is prohibited by obstructing the airways of the child,
impairing his breathing."
* The staff "did not follow the facility's policies and procedures in
handling the misbehavior of a resident, which resulted in a restraint
and death of the child."
* The staff "did not document the total length of time the child was
restrained."
"The bottom line: Chase Moody did not pose an emergency to himself or
anybody else when he was put in this restraint," said David McLaughlin,
a lawyer working with the Cochran Firm, who is assisting high-profile
lawyer Johnnie Cochran on the potential civil suit. "These three people
in the take-down . . . I'm not going to call them victims, but they were
put in circumstances without the proper tools or skills to handle the
situation."
Sallee called the findings disappointing, one-sided and inaccurate.
"All they were doing was trying to protect themselves and the others,"
Sallee said of the staff members who placed Chase in the restraint. "The
child was violent that night and had a history of violence."
Howard Falkenberg, a spokesman for the company, responded Thursday with
this prepared statement:
"The death of a student last year in the On Track program is a tragedy
that profoundly saddens us, and our sympathies remain with his family.
At the same time, we know that our staff acted appropriately in very
difficult circumstances. These are caring men who were devoted to
helping the young people in their charge, and they were properly trained
to do their job."
An attorney's quest
The Brown Schools have been involved in four other restraint-related
deaths over the past 15 years. And the company has received dozens of
improper restraint and licensing violations at its various residential
treatment centers, according to an American-Statesman review of
licensing records. The last youth to die before Moody after being
restrained in a Brown Schools program was 9-year-old Randy Steele, whose
death was written up in the four-paragraph memo from the DPRS.
Like many children with attention-deficit disorder, Randy was bored with
school, too smart for his own good and constantly in trouble. When he
was diagnosed as bipolar, his father enrolled him in short-term therapy
in Las Vegas.
But Randy needed more, and Nevada doesn't offer long-term care.
The youngster was sent to the Brown Schools' San Antonio treatment
center, Laurel Ridge, which was supposed to correct his hyperactivity
and behavioral problems. According to court documents filed by a lawyer
for the boy's mother, Randy was restrained at least 25 times in less
than 28 days.
He died after the last one in February 2000, after orderlies physically
restrained the boy, who had launched into a toy-tossing temper tantrum
after refusing to take a bath. According to court records, the orderlies
held Randy chest-down until he began to wheeze and vomit. They then
turned him on his side and realized that Randy had lost his pulse.
No criminal charges were filed in the case. The DPRS did not cite Laurel
Ridge for any violations. And Randy's mother never learned the details
of what really happened that night.
Like other families who have lost children this way, Randy's mother,
Holly, turned to the civil courts. The case was headed for a jury in
October.
"The day we were supposed to start trial, the Moody incident
happened," Holly Steele said. A few months later, she settled the suit
with Brown outside of court for an undisclosed amount.
The district attorney in charge of Mason County, Ron Sutton, is
considering prosecution of the Brown Schools. If that happens, advocates
would consider it a legal breakthrough in restraint cases.
Sutton has said he plans to take the case to a grand jury within the
next few weeks.
In the past, grand juries have been reluctant to go after staff members
for their role in restraint-related deaths. For example, a grand jury
earlier this year declined to indict staff workers involved in the
restraint-related death of Maria Mendoza, who died at the Katy facility
Oct. 12. The medical examiner ruled the death a homicide.
Contemplating charges against a company, however, is a legal move rarely
attempted in these situations. It would, on the simplest terms, require
Sutton to prove a pattern of dangerous and deadly behavior that
continued right up until Chase's death.
If the law were different and a restraint-related death could clearly
lead to criminal penalties, that at the very least might make some of
these facilities and their staffs think twice before taking another
child to the ground, advocates say.
But in Texas, as is the case throughout the country, that is unlikely to
change for the time being. On the night Chase died, Charles Moody fell
asleep on the couch toward the end of the Monday night football game.
The phone rang shortly after midnight.
Since, Charles Moody has been searching for justice somewhere, somehow.
He's held meetings with prosecutors and legislators. He's even gone as
far as hiring Cochran, the same lawyer who successfully defended O.J.
Simpson, to potentially take civil action against the Brown Schools. And
he's shared tearful embraces with other parents, such as Holly Steele,
who have been through all this already.
What Moody knows all too well, though, is that this crusade will not
bring Chase back.
"The main thing I want," Moody said at his Dallas law firm shortly
after his son's death, "I can't have."
[email protected]; 445-1712
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