When discipline turns fatal
Texas lacks tough law on prone restraint
that's banned in three states
By Jonathan Osborne and Mike Ward
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
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.
However, inspection and complaint
investigations since January 2002 have recently been put on the
agency's Web site and can be searched at 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.
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."
josborne@statesman.com; 445-3621
mward@statesman.com; 445-1712
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