On December 11, 2006, the U.S. Department of Justice's Civil Rights Division ("DOJ") sent its "findings letter" to the governor of Texas, advising him of the results of the June 2005, DOJ investigation of conditions and practices at the Lubbock State School ("LSS"), which houses developmentally disabled persons, including persons with intellectual disabilities, cerebral palsy, and/or autism. The investigation occurred under the authority of the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. DOJ and expert consultants visited the facility and reviewed a wide array of documents there. The investigators also conducted interviews with personnel and observed residents in a variety of settings at LSS. The letter commended LSS staff for providing cooperation during the investigation and noted the staff's genuine concern for residents.

Nevertheless, the DOJ advised that its' investigation found continuing deficiencies in resident care at LSS, in that conditions and services there substantially departed from generally accepted standards of care. Constitutional and federal statutory rights of residents at LSS were violated in several respects, according to the DOJ.

The DOJ concluded that deficiencies in conditions of resident care and treatment at LSS existed as to four topic areas. The letter provided examples of the deficiencies for each of the four identified categories. Texas caused LSS' residents significant harm or risk of harm through: (1) failure to provide adequate health care (including deficient, incompetent, untested, ill-trained, unreviewed, and/or understaffed nursing services, psychiatric services, general medical care, pharmacy services, dental care, and occupational and physical therapy, and physical and nutritional management; in sum, at LSS, these health services were "alarmingly short of professional standards"); (2) failure to keep residents safe (e.g., residents subjected to neglect and possible physical abuse; disproportionate number of unexplained and unreported injuries; lack of resident and staff supervision; inadequate incident management); (3) failure to provide residents with adequate behavioral support planning, appropriate restraint usage, and habilitation services (e.g., inadequate, non-individualized behavior programs, lacking adequate functional analysis of problem behaviors; poor program implementation, monitoring, evaluation, revision, and follow-up; poor staff training; "woefully inadequate" professional review and monitoring of behavior support services; no tracking of psychological services' use, for example, of restraints or emergency procedures nor of outcome measurements; inexperienced, untrained, and understaffed psychological personnel; overuse of, and overly-restrictive, physical and manual restraints, as well as inappropriate release criteria; excessive and unreviewed use of chemical restraints; failure to use behavioral modification, other than regressive interventions; little meaningful functional training or activity programming; insufficient speech or communication services, including a lack of augmentative or alternative communication evaluations and services); and (4) failure to provide services to LSS residents in the most integrated setting appropriate to the residents' needs, as required by the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq.; 28 C.F.R § 35.130(d). Regarding this latter category, the DOJ concluded that, at LSS, Texas had not taken adequate steps concerning: (1) community placements; (2) assessments; (3) communication of information on community resources to residents, guardians, and family members; and (4) execution of the discharge process. Consequently, fewer capable residents transitioned to community settings than desired.

Almost ten pages of minimally-acceptable remedial measures for each of the four categories were outlined in the letter, which concluded by inviting continued collaboration in implementing the remediation. The letter also provided notice that, absent a resolution of federal concerns, the DOJ would file a CRIPA lawsuit to compel correction of the identified deficiencies at LSS.

We have no information indicating post-"findings letter" activity in this case.

Mike Fagan - 05/30/2008


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