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When Discipline
Turns Fatal
Texas lacks
tough law on prone restraint that's banned in three states.
by Jonathan
Osborne and Mike Ward, The American-Statesman, May 18, 2003
For more articles like this
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https://www.bridges4kids.org
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.
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.
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 The only details released
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.
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.
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."
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