December 11 2006

The Honorable Rick PerryOffice of the Governor State Insurance Building1100 San Jacinto Austin TX 78701

Re CRIPA Investigation of the Lubbock State SchoolLubbock Texas

Dear Governor Perry

I am writing to report the findings of the Civil RightsDivisionrsquos investigation of conditions at the Lubbock StateSchool (ldquoLSSrdquo) in Lubbock Texas LSS is a residential treatment facility for persons with developmental disabilitiesthat is owned and operated by the Texas Department of Aging andDisability Services (known as ldquoDADSrdquo) On March 17 2005 wenotified you of our intent to conduct an investigation of LSSpursuant to the Civil Rights of Institutionalized Persons Act(CRIPA) 42 USC sect 1997 As we noted CRIPA gives theDepartment of Justice authority to seek relief on behalf ofresidents of public institutions who have been subjected to apattern or practice of egregious or flagrant conditions inviolation of the Constitution or federal law

During the week of June 13 2005 we conducted an on-siteinspection of LSS with expert consultants in psychiatrypsychology (including habilitation and skills training) generalmedical care nursing nutritional and physical managementprotection from harm and community placement Before duringand after our site visit we reviewed medical and other recordsrelating to the care and treatment of LSS residents1 We also reviewed facility policies and procedures interviewedadministrators and staff and observed residents in theirresidences activity areas classrooms workshops and during

1 In particular 17 LSS residents have died since ourvisit and we have reviewed the available records associated withthose deaths

- 2 -

meals Consistent with our commitment to provide technicalassistance and conduct a transparent investigation we conductedan exit conference with facility staff to convey our preliminaryfindings

As a threshold matter we note that LSS is staffedpredominantly by dedicated individuals who are genuinelyconcerned with the well-being of the persons in their care We wish to express our appreciation for the assistance andcooperation provided to us by LSS administrators and staffthroughout the investigation

During our on-site tour LSS housed 344 residents aged 15 to75 years old Residents live in 16 housing units spread acrossthe facilityrsquos 226-acre campus Almost three-fourths of the residents have a diagnosis of severeprofound mental retardationabout one-half suffer from seizure disorders and one-third havesignificant ambulation difficulties Most residents also have a severe communication disorder A number of residents have significant behavioral issues and receive psychotropicmedications In general most residents require substantialstaffing supports to meet their daily needs

I FINDINGS

Individuals with developmental disabilities in a stateinstitution have a Fourteenth Amendment due process right toreasonably safe conditions of confinement freedom fromunreasonable bodily restraints reasonable protection from harmand adequate food shelter clothing and medical careYoungberg v Romeo 457 US 307 (1982) See also Savidge vFincannon 836 F2d 898 906 (5th Cir 1988) (finding thatYoungberg recognized that an institutionalized person ldquohas aliberty interest in lsquopersonal securityrsquo as well as a right tolsquofreedom from bodily restraintrsquordquo) Determining whethertreatment is adequate focuses on whether institutional conditionssubstantially depart from generally accepted professionaljudgment practices or standards Youngberg 457 US at 323Residents also have the right to be treated in the mostintegrated setting appropriate to meet their individualizedneeds See Olmstead v LC 527 US 581 (1999) Title II ofthe Americans with Disabilities Act (ldquoADArdquo) 42 USC sectsect 12132et seq Section 504 of the Rehabilitation Act of 1973 29 USCsect 794 28 CFR sect 35130

We found that LSS substantially departs from generallyaccepted professional standards of care in that the facilityfails to (1) provide adequate health care (including nursing

- 3 -

services psychiatric services general medical care pharmacyservices dental care and occupational and physical therapy andphysical and nutritional management) (2) protect residents fromharm (3) provide adequate behavioral services freedom fromunnecessary or inappropriate restraint and habilitation and(4) provide services to qualified individuals with disabilitiesin the most integrated setting appropriate to their needs

A Health Care

1 Medical Services

Generally accepted professional standards for the provisionof health care particularly for individuals with fragile health(such as many of LSSrsquos residents) require a process in whichthere is early identification of changes in health status promptevaluation to determine the cause timely initiation ofappropriate interventions and ongoing monitoring to preventfuture recurrence LSSrsquos provision of health care fallsalarmingly short of professional standards of care More specifically LSSrsquos failure to provide timely interventions toavoid or minimize the effect of acute problems has led totragic outcomes

To date 172 LSS residents have died since our June 2005 tour Our review of a number of these deaths raise concerns regarding the quality of care that LSS residents receive In one disturbing incident in [date redacted in public document] 2005a medical code was called for LSS resident NLU in response tothe staff noting that she was not breathing cool to the touchand had no pulse A call for LSS medical assistance was made at 536 am but outside emergency medical services (ldquoEMSrdquo) werenot notified for several critical minutes until 543 amFurther the EMS report stated that upon arrival NLU hadrigor mortis to her jaws indicating that she probably had diedhours earlier She was pronounced dead at 610 am

LSSrsquos records indicate that two LSS staff members actuallyhad found NLU unresponsive around 500 am and ldquopanickedrdquothey did not assess her breathing or her pulse and failed to

2 KN UC NLU IN ED TC KE GS MEKBQ GN QX UT MN IXD SI and UK have diedsince our tour Throughout this letter we have assignedinitials other than residentsrsquo actual initials to protect theiridentity We will provide separately a schedule by which theseresidents can be identified

- 4 -

initiate CPR3 Also they waited approximately 30 minutes beforeinitiating a medical code Further LSSrsquos documentationindicates that when additional staff were summoned to NLUrsquosroom one of the staff members who found her unresponsive refusedto assist in placing her on the floor to begin CPR because sheldquocould not go back into that roomrdquo Separately the facilityrsquossubsequent investigation determined that staff had falsified bedcheck sheets diaper changing sheets and the log book so thatthese records wrongly stated that all individuals under theircare including NLU were checked repositioned and changedat 530 am 545 am and 600 am Given that NLU reportedly was found dead about 500 am she obviously couldnot have been checked repositioned and changed on multipleoccasions thereafter At least one staff person was disciplinedfor neglect in connection with NLUrsquos death

We cannot determine if prompt resuscitation efforts wouldhave changed events However the failure to initiate suchefforts for at least 30 minutes after NLU was discovered virtually ensured the outcome The staff members involved were noted to have had basic CPR training but they had not undergonemedical emergency drills to demonstrate their ability to performthe procedures

a Nursing Services

Nursing services at LSS are inadequate The generalapproach to nursing at LSS is reactive responding to known orapparent health problems only when they reach acute statusrather than providing timely interventions to prevent or mitigatethe occurrence of acute problems Consequently LSS residentsare placed at substantial risk of grave harm

More particularly our review of individual records showedthat nursing care plans are general and vague do not addressindividualsrsquo health status and do not include necessaryinterventions to treat illness and prevent recurrence of illnessAlso recommendations in nursing care plans fail to specify thesigns and symptoms that must be monitored Further nursing careplans for individuals at high risk do not identify individualizedinterventions related to identified risk factors

3 NLU had a number of known serious medicalconditions warranting that she be cared for by staff competent inat least basic health care including first aid

- 5 -

Independent of the weaknesses in nursing care plans nursesin practice do not provide consistent monitoring and completedocumentation regarding chronic health care issues such asconstipation and aspiration that can be life-threatening forpersons with compromised health as is the case for many LSSresidents In addition although this issue is not exclusive tonursing there is also an almost total lack of preparation of thestaff regarding medical emergencies

Overall the deficiencies in nursing relate to theshortcomings in staffing (discussed further below) the lack of asystem to guide care and the competency of the nurses on dutyThese shortcomings place residents at great risk of harm

Many of the foregoing deficiencies are illustrated in thedeath of ED According to LSSrsquos records ED was a 50-year-oldLSS resident who died on [date redacted in public document] 2006from aspiration4 pneumonia Strikingly although ED had ahistory of significant gastrointestinal problems5 LSS failed to provide this individual with plans of care for these problemsthat nurses should implement Further our record reviewindicates that LSS failed to change EDrsquos diet in response tohis gastrointestinal difficulties In fact he received snacksbefore bedtime which clinicians should readily understand wouldmake these difficulties worse Further although his recordsmake clear that ED consistently had an increase in behaviorsassociated with pain in the two hours following meals we foundno evidence that his symptoms were ever assessed or addressedIn summary the evidence is compelling that ED was notadequately monitored for changes in his health status that madehim susceptible to aspiration nor was he provided withappropriate supports to minimize the risks of aspiration His death from aspiration pneumonia is highly troubling

On [date redacted in public document] 2005 LSS residentQX died of respiratory failure from recurrent aspirationpneumonias QX received all nutrition by tube and had asignificant history of aspiration pneumonias He was sent to the

4 ldquoAspirationrdquo is the entry of secretions or foreignmaterial often food into the trachea and lungs

5 These problems included gastroesophageal reflux disease(ldquorefluxrdquo or ldquoGERDrdquo) damage to the esophagus from stomach acid(ldquoBarrettrsquos esophagusrdquo) chronic inflamation of the stomachlining (ldquogastritisrdquo) and stomach protrusion into the chestcavity (ldquohiatel herniardquo)

- 6 -

infirmary for respiratory distress lowered oxygen saturations6

and rales noted to both lobes7 Notwithstanding thesesignificant health issues his medical chart contained fewnursing entries that noted QXrsquos vital signs8 lung sounds andhis overall health status QX was then transferred to thecommunity hospital and two days later was placed in intensivecare due to respiratory failure He also was diagnosed withaspiration pneumonia His condition worsened over the ensuingweeks and his family authorized a withdrawal of treatmentShortly thereafter on the 25th day of hospitalization he died

The lack of documentation in QXrsquos case is not isolatedNurses at LSS routinely fail to obtain an individualrsquos vitalsigns when appropriate For example nurses document vital signsincompletely or simply write ldquowithin normal limitsrdquo forindividuals who should have had objective measurements of theirvital signs documented in their charts Designations ldquowithinnormal limitsrdquo fail to provide specific critical information bywhich to make health decisions Separately nurses fail torecord lung sounds for individuals with identified respiratoryproblems LSSrsquos practices do not produce meaningful data abouthealth status and impair the staffrsquos ability to provideacceptable health care

Further evidencing a lack of attention to individualsrsquohealth conditions we discovered that even after a LSS residentsuffered a serious skin breakdown nurses failed to monitor thisindividualrsquos skin and a second decubitus ulcer developed The resident suffered unnecessarily due to the failure to takeprecautions to prevent the second sore

Separately LSSrsquos nursing department has no system in placeto analyze medication variances and identify trends Nor does LSS have an effective infection control program In this regardwe found no monthly or yearly analyses of infections occurring atLSS In addition we observed an absence of necessary steps toreduce infection in the infirmary including adequate hand

6 ldquoOxygen saturationrdquo refers to the amount of oxygencarried in blood cells

7 ldquoRalesrdquo refers to lung sounds that indicate possibleaspiration pneumonia or pneumonia ldquoLobesrdquo refers to the upperand lower lobes of the lung

8 ldquoVital signsrdquo are temperature pulse respiration andblood pressure readings

- 7 -

washing which was also a problem throughout the facility More fundamentally LSSrsquos nursing programs conduct no internal auditsto identify areas of strength or weakness

We are compelled to note that a fundamental cause of thesedeficiencies is staffing During our visit the LSS nursingdepartment had 14 vacancies for nursing positions (five positionsfor licensed vocational nurses and nine positions for registerednurses) There was a consensus among the medical director thedirector of nursing and the psychiatrist that the nursingdepartment badly needed nurses to provide consistent care toindividuals

b Infirmary

The care and services that LSS provides to medically fragileindividuals in the infirmary is inadequate and places thoseindividuals at risk of harm During our visit individualshoused in the infirmary were either sitting in the hallway orlying in bed looking at the ceiling The absence of meaningfulactivities and active treatment at the infirmary is due in largepart to the dangerously low staffing levels provided thereDuring our visit to LSS the newly assigned nurse managerindicated that there were two vacant registered nurse positionsand too few direct care staff to provide necessary services

In addition lack of competence among LSSrsquos staff has placedresidents at risk For example staff may have contributed tothe spread of serious infections because they were unfamiliarwith infection control procedures for caring for individuals withMRSA9 and did not know which individuals required isolationprecautions Similarly staff did not know resident meal plansand physical positioning plans which are necessary to maintainsafe mealtime practices and appropriate body alignment Because many infirmary residents have a high risk of aspiration or have

9 MRSA (ldquomethicillin-resistant staphylococcus aureusrdquo) isa bacteria resistant to certain antibiotics includingmethicillin oxacillin penicillin and amoxicillin Centers for Disease Control and Prevention athttpwwwcdcgovncidodhipAresistca_mrsa_publichtm MRSA manifests itself as a boil or sore on the skin and is spreadthrough contact with an infected person or a surface the personhas touched Id In some cases MRSA can have serious medicalconsequences for example by causing surgical wound infectionsbloodstream infections and pneumonia Id

- 2 -

meals Consistent with our commitment to provide technicalassistance and conduct a transparent investigation we conductedan exit conference with facility staff to convey our preliminaryfindings

As a threshold matter we note that LSS is staffedpredominantly by dedicated individuals who are genuinelyconcerned with the well-being of the persons in their care We wish to express our appreciation for the assistance andcooperation provided to us by LSS administrators and staffthroughout the investigation

During our on-site tour LSS housed 344 residents aged 15 to75 years old Residents live in 16 housing units spread acrossthe facilityrsquos 226-acre campus Almost three-fourths of the residents have a diagnosis of severeprofound mental retardationabout one-half suffer from seizure disorders and one-third havesignificant ambulation difficulties Most residents also have a severe communication disorder A number of residents have significant behavioral issues and receive psychotropicmedications In general most residents require substantialstaffing supports to meet their daily needs

I FINDINGS

Individuals with developmental disabilities in a stateinstitution have a Fourteenth Amendment due process right toreasonably safe conditions of confinement freedom fromunreasonable bodily restraints reasonable protection from harmand adequate food shelter clothing and medical careYoungberg v Romeo 457 US 307 (1982) See also Savidge vFincannon 836 F2d 898 906 (5th Cir 1988) (finding thatYoungberg recognized that an institutionalized person ldquohas aliberty interest in lsquopersonal securityrsquo as well as a right tolsquofreedom from bodily restraintrsquordquo) Determining whethertreatment is adequate focuses on whether institutional conditionssubstantially depart from generally accepted professionaljudgment practices or standards Youngberg 457 US at 323Residents also have the right to be treated in the mostintegrated setting appropriate to meet their individualizedneeds See Olmstead v LC 527 US 581 (1999) Title II ofthe Americans with Disabilities Act (ldquoADArdquo) 42 USC sectsect 12132et seq Section 504 of the Rehabilitation Act of 1973 29 USCsect 794 28 CFR sect 35130

We found that LSS substantially departs from generallyaccepted professional standards of care in that the facilityfails to (1) provide adequate health care (including nursing

- 3 -

services psychiatric services general medical care pharmacyservices dental care and occupational and physical therapy andphysical and nutritional management) (2) protect residents fromharm (3) provide adequate behavioral services freedom fromunnecessary or inappropriate restraint and habilitation and(4) provide services to qualified individuals with disabilitiesin the most integrated setting appropriate to their needs

A Health Care

1 Medical Services

Generally accepted professional standards for the provisionof health care particularly for individuals with fragile health(such as many of LSSrsquos residents) require a process in whichthere is early identification of changes in health status promptevaluation to determine the cause timely initiation ofappropriate interventions and ongoing monitoring to preventfuture recurrence LSSrsquos provision of health care fallsalarmingly short of professional standards of care More specifically LSSrsquos failure to provide timely interventions toavoid or minimize the effect of acute problems has led totragic outcomes

To date 172 LSS residents have died since our June 2005 tour Our review of a number of these deaths raise concerns regarding the quality of care that LSS residents receive In one disturbing incident in [date redacted in public document] 2005a medical code was called for LSS resident NLU in response tothe staff noting that she was not breathing cool to the touchand had no pulse A call for LSS medical assistance was made at 536 am but outside emergency medical services (ldquoEMSrdquo) werenot notified for several critical minutes until 543 amFurther the EMS report stated that upon arrival NLU hadrigor mortis to her jaws indicating that she probably had diedhours earlier She was pronounced dead at 610 am

LSSrsquos records indicate that two LSS staff members actuallyhad found NLU unresponsive around 500 am and ldquopanickedrdquothey did not assess her breathing or her pulse and failed to

2 KN UC NLU IN ED TC KE GS MEKBQ GN QX UT MN IXD SI and UK have diedsince our tour Throughout this letter we have assignedinitials other than residentsrsquo actual initials to protect theiridentity We will provide separately a schedule by which theseresidents can be identified

- 4 -

initiate CPR3 Also they waited approximately 30 minutes beforeinitiating a medical code Further LSSrsquos documentationindicates that when additional staff were summoned to NLUrsquosroom one of the staff members who found her unresponsive refusedto assist in placing her on the floor to begin CPR because sheldquocould not go back into that roomrdquo Separately the facilityrsquossubsequent investigation determined that staff had falsified bedcheck sheets diaper changing sheets and the log book so thatthese records wrongly stated that all individuals under theircare including NLU were checked repositioned and changedat 530 am 545 am and 600 am Given that NLU reportedly was found dead about 500 am she obviously couldnot have been checked repositioned and changed on multipleoccasions thereafter At least one staff person was disciplinedfor neglect in connection with NLUrsquos death

We cannot determine if prompt resuscitation efforts wouldhave changed events However the failure to initiate suchefforts for at least 30 minutes after NLU was discovered virtually ensured the outcome The staff members involved were noted to have had basic CPR training but they had not undergonemedical emergency drills to demonstrate their ability to performthe procedures

a Nursing Services

Nursing services at LSS are inadequate The generalapproach to nursing at LSS is reactive responding to known orapparent health problems only when they reach acute statusrather than providing timely interventions to prevent or mitigatethe occurrence of acute problems Consequently LSS residentsare placed at substantial risk of grave harm

More particularly our review of individual records showedthat nursing care plans are general and vague do not addressindividualsrsquo health status and do not include necessaryinterventions to treat illness and prevent recurrence of illnessAlso recommendations in nursing care plans fail to specify thesigns and symptoms that must be monitored Further nursing careplans for individuals at high risk do not identify individualizedinterventions related to identified risk factors

3 NLU had a number of known serious medicalconditions warranting that she be cared for by staff competent inat least basic health care including first aid

- 5 -

Independent of the weaknesses in nursing care plans nursesin practice do not provide consistent monitoring and completedocumentation regarding chronic health care issues such asconstipation and aspiration that can be life-threatening forpersons with compromised health as is the case for many LSSresidents In addition although this issue is not exclusive tonursing there is also an almost total lack of preparation of thestaff regarding medical emergencies

Overall the deficiencies in nursing relate to theshortcomings in staffing (discussed further below) the lack of asystem to guide care and the competency of the nurses on dutyThese shortcomings place residents at great risk of harm

Many of the foregoing deficiencies are illustrated in thedeath of ED According to LSSrsquos records ED was a 50-year-oldLSS resident who died on [date redacted in public document] 2006from aspiration4 pneumonia Strikingly although ED had ahistory of significant gastrointestinal problems5 LSS failed to provide this individual with plans of care for these problemsthat nurses should implement Further our record reviewindicates that LSS failed to change EDrsquos diet in response tohis gastrointestinal difficulties In fact he received snacksbefore bedtime which clinicians should readily understand wouldmake these difficulties worse Further although his recordsmake clear that ED consistently had an increase in behaviorsassociated with pain in the two hours following meals we foundno evidence that his symptoms were ever assessed or addressedIn summary the evidence is compelling that ED was notadequately monitored for changes in his health status that madehim susceptible to aspiration nor was he provided withappropriate supports to minimize the risks of aspiration His death from aspiration pneumonia is highly troubling

On [date redacted in public document] 2005 LSS residentQX died of respiratory failure from recurrent aspirationpneumonias QX received all nutrition by tube and had asignificant history of aspiration pneumonias He was sent to the

4 ldquoAspirationrdquo is the entry of secretions or foreignmaterial often food into the trachea and lungs

5 These problems included gastroesophageal reflux disease(ldquorefluxrdquo or ldquoGERDrdquo) damage to the esophagus from stomach acid(ldquoBarrettrsquos esophagusrdquo) chronic inflamation of the stomachlining (ldquogastritisrdquo) and stomach protrusion into the chestcavity (ldquohiatel herniardquo)

- 6 -

infirmary for respiratory distress lowered oxygen saturations6

and rales noted to both lobes7 Notwithstanding thesesignificant health issues his medical chart contained fewnursing entries that noted QXrsquos vital signs8 lung sounds andhis overall health status QX was then transferred to thecommunity hospital and two days later was placed in intensivecare due to respiratory failure He also was diagnosed withaspiration pneumonia His condition worsened over the ensuingweeks and his family authorized a withdrawal of treatmentShortly thereafter on the 25th day of hospitalization he died

The lack of documentation in QXrsquos case is not isolatedNurses at LSS routinely fail to obtain an individualrsquos vitalsigns when appropriate For example nurses document vital signsincompletely or simply write ldquowithin normal limitsrdquo forindividuals who should have had objective measurements of theirvital signs documented in their charts Designations ldquowithinnormal limitsrdquo fail to provide specific critical information bywhich to make health decisions Separately nurses fail torecord lung sounds for individuals with identified respiratoryproblems LSSrsquos practices do not produce meaningful data abouthealth status and impair the staffrsquos ability to provideacceptable health care

Further evidencing a lack of attention to individualsrsquohealth conditions we discovered that even after a LSS residentsuffered a serious skin breakdown nurses failed to monitor thisindividualrsquos skin and a second decubitus ulcer developed The resident suffered unnecessarily due to the failure to takeprecautions to prevent the second sore

Separately LSSrsquos nursing department has no system in placeto analyze medication variances and identify trends Nor does LSS have an effective infection control program In this regardwe found no monthly or yearly analyses of infections occurring atLSS In addition we observed an absence of necessary steps toreduce infection in the infirmary including adequate hand

6 ldquoOxygen saturationrdquo refers to the amount of oxygencarried in blood cells

7 ldquoRalesrdquo refers to lung sounds that indicate possibleaspiration pneumonia or pneumonia ldquoLobesrdquo refers to the upperand lower lobes of the lung

8 ldquoVital signsrdquo are temperature pulse respiration andblood pressure readings

- 7 -

washing which was also a problem throughout the facility More fundamentally LSSrsquos nursing programs conduct no internal auditsto identify areas of strength or weakness

We are compelled to note that a fundamental cause of thesedeficiencies is staffing During our visit the LSS nursingdepartment had 14 vacancies for nursing positions (five positionsfor licensed vocational nurses and nine positions for registerednurses) There was a consensus among the medical director thedirector of nursing and the psychiatrist that the nursingdepartment badly needed nurses to provide consistent care toindividuals

b Infirmary

The care and services that LSS provides to medically fragileindividuals in the infirmary is inadequate and places thoseindividuals at risk of harm During our visit individualshoused in the infirmary were either sitting in the hallway orlying in bed looking at the ceiling The absence of meaningfulactivities and active treatment at the infirmary is due in largepart to the dangerously low staffing levels provided thereDuring our visit to LSS the newly assigned nurse managerindicated that there were two vacant registered nurse positionsand too few direct care staff to provide necessary services

In addition lack of competence among LSSrsquos staff has placedresidents at risk For example staff may have contributed tothe spread of serious infections because they were unfamiliarwith infection control procedures for caring for individuals withMRSA9 and did not know which individuals required isolationprecautions Similarly staff did not know resident meal plansand physical positioning plans which are necessary to maintainsafe mealtime practices and appropriate body alignment Because many infirmary residents have a high risk of aspiration or have

9 MRSA (ldquomethicillin-resistant staphylococcus aureusrdquo) isa bacteria resistant to certain antibiotics includingmethicillin oxacillin penicillin and amoxicillin Centers for Disease Control and Prevention athttpwwwcdcgovncidodhipAresistca_mrsa_publichtm MRSA manifests itself as a boil or sore on the skin and is spreadthrough contact with an infected person or a surface the personhas touched Id In some cases MRSA can have serious medicalconsequences for example by causing surgical wound infectionsbloodstream infections and pneumonia Id

- 3 -

services psychiatric services general medical care pharmacyservices dental care and occupational and physical therapy andphysical and nutritional management) (2) protect residents fromharm (3) provide adequate behavioral services freedom fromunnecessary or inappropriate restraint and habilitation and(4) provide services to qualified individuals with disabilitiesin the most integrated setting appropriate to their needs

A Health Care

1 Medical Services

Generally accepted professional standards for the provisionof health care particularly for individuals with fragile health(such as many of LSSrsquos residents) require a process in whichthere is early identification of changes in health status promptevaluation to determine the cause timely initiation ofappropriate interventions and ongoing monitoring to preventfuture recurrence LSSrsquos provision of health care fallsalarmingly short of professional standards of care More specifically LSSrsquos failure to provide timely interventions toavoid or minimize the effect of acute problems has led totragic outcomes

To date 172 LSS residents have died since our June 2005 tour Our review of a number of these deaths raise concerns regarding the quality of care that LSS residents receive In one disturbing incident in [date redacted in public document] 2005a medical code was called for LSS resident NLU in response tothe staff noting that she was not breathing cool to the touchand had no pulse A call for LSS medical assistance was made at 536 am but outside emergency medical services (ldquoEMSrdquo) werenot notified for several critical minutes until 543 amFurther the EMS report stated that upon arrival NLU hadrigor mortis to her jaws indicating that she probably had diedhours earlier She was pronounced dead at 610 am

LSSrsquos records indicate that two LSS staff members actuallyhad found NLU unresponsive around 500 am and ldquopanickedrdquothey did not assess her breathing or her pulse and failed to

2 KN UC NLU IN ED TC KE GS MEKBQ GN QX UT MN IXD SI and UK have diedsince our tour Throughout this letter we have assignedinitials other than residentsrsquo actual initials to protect theiridentity We will provide separately a schedule by which theseresidents can be identified

- 4 -

initiate CPR3 Also they waited approximately 30 minutes beforeinitiating a medical code Further LSSrsquos documentationindicates that when additional staff were summoned to NLUrsquosroom one of the staff members who found her unresponsive refusedto assist in placing her on the floor to begin CPR because sheldquocould not go back into that roomrdquo Separately the facilityrsquossubsequent investigation determined that staff had falsified bedcheck sheets diaper changing sheets and the log book so thatthese records wrongly stated that all individuals under theircare including NLU were checked repositioned and changedat 530 am 545 am and 600 am Given that NLU reportedly was found dead about 500 am she obviously couldnot have been checked repositioned and changed on multipleoccasions thereafter At least one staff person was disciplinedfor neglect in connection with NLUrsquos death

We cannot determine if prompt resuscitation efforts wouldhave changed events However the failure to initiate suchefforts for at least 30 minutes after NLU was discovered virtually ensured the outcome The staff members involved were noted to have had basic CPR training but they had not undergonemedical emergency drills to demonstrate their ability to performthe procedures

a Nursing Services

Nursing services at LSS are inadequate The generalapproach to nursing at LSS is reactive responding to known orapparent health problems only when they reach acute statusrather than providing timely interventions to prevent or mitigatethe occurrence of acute problems Consequently LSS residentsare placed at substantial risk of grave harm

More particularly our review of individual records showedthat nursing care plans are general and vague do not addressindividualsrsquo health status and do not include necessaryinterventions to treat illness and prevent recurrence of illnessAlso recommendations in nursing care plans fail to specify thesigns and symptoms that must be monitored Further nursing careplans for individuals at high risk do not identify individualizedinterventions related to identified risk factors

3 NLU had a number of known serious medicalconditions warranting that she be cared for by staff competent inat least basic health care including first aid

- 5 -

Independent of the weaknesses in nursing care plans nursesin practice do not provide consistent monitoring and completedocumentation regarding chronic health care issues such asconstipation and aspiration that can be life-threatening forpersons with compromised health as is the case for many LSSresidents In addition although this issue is not exclusive tonursing there is also an almost total lack of preparation of thestaff regarding medical emergencies

Overall the deficiencies in nursing relate to theshortcomings in staffing (discussed further below) the lack of asystem to guide care and the competency of the nurses on dutyThese shortcomings place residents at great risk of harm

Many of the foregoing deficiencies are illustrated in thedeath of ED According to LSSrsquos records ED was a 50-year-oldLSS resident who died on [date redacted in public document] 2006from aspiration4 pneumonia Strikingly although ED had ahistory of significant gastrointestinal problems5 LSS failed to provide this individual with plans of care for these problemsthat nurses should implement Further our record reviewindicates that LSS failed to change EDrsquos diet in response tohis gastrointestinal difficulties In fact he received snacksbefore bedtime which clinicians should readily understand wouldmake these difficulties worse Further although his recordsmake clear that ED consistently had an increase in behaviorsassociated with pain in the two hours following meals we foundno evidence that his symptoms were ever assessed or addressedIn summary the evidence is compelling that ED was notadequately monitored for changes in his health status that madehim susceptible to aspiration nor was he provided withappropriate supports to minimize the risks of aspiration His death from aspiration pneumonia is highly troubling

On [date redacted in public document] 2005 LSS residentQX died of respiratory failure from recurrent aspirationpneumonias QX received all nutrition by tube and had asignificant history of aspiration pneumonias He was sent to the

4 ldquoAspirationrdquo is the entry of secretions or foreignmaterial often food into the trachea and lungs

5 These problems included gastroesophageal reflux disease(ldquorefluxrdquo or ldquoGERDrdquo) damage to the esophagus from stomach acid(ldquoBarrettrsquos esophagusrdquo) chronic inflamation of the stomachlining (ldquogastritisrdquo) and stomach protrusion into the chestcavity (ldquohiatel herniardquo)

- 6 -

infirmary for respiratory distress lowered oxygen saturations6

and rales noted to both lobes7 Notwithstanding thesesignificant health issues his medical chart contained fewnursing entries that noted QXrsquos vital signs8 lung sounds andhis overall health status QX was then transferred to thecommunity hospital and two days later was placed in intensivecare due to respiratory failure He also was diagnosed withaspiration pneumonia His condition worsened over the ensuingweeks and his family authorized a withdrawal of treatmentShortly thereafter on the 25th day of hospitalization he died

The lack of documentation in QXrsquos case is not isolatedNurses at LSS routinely fail to obtain an individualrsquos vitalsigns when appropriate For example nurses document vital signsincompletely or simply write ldquowithin normal limitsrdquo forindividuals who should have had objective measurements of theirvital signs documented in their charts Designations ldquowithinnormal limitsrdquo fail to provide specific critical information bywhich to make health decisions Separately nurses fail torecord lung sounds for individuals with identified respiratoryproblems LSSrsquos practices do not produce meaningful data abouthealth status and impair the staffrsquos ability to provideacceptable health care

Further evidencing a lack of attention to individualsrsquohealth conditions we discovered that even after a LSS residentsuffered a serious skin breakdown nurses failed to monitor thisindividualrsquos skin and a second decubitus ulcer developed The resident suffered unnecessarily due to the failure to takeprecautions to prevent the second sore

Separately LSSrsquos nursing department has no system in placeto analyze medication variances and identify trends Nor does LSS have an effective infection control program In this regardwe found no monthly or yearly analyses of infections occurring atLSS In addition we observed an absence of necessary steps toreduce infection in the infirmary including adequate hand

6 ldquoOxygen saturationrdquo refers to the amount of oxygencarried in blood cells

7 ldquoRalesrdquo refers to lung sounds that indicate possibleaspiration pneumonia or pneumonia ldquoLobesrdquo refers to the upperand lower lobes of the lung

8 ldquoVital signsrdquo are temperature pulse respiration andblood pressure readings

- 7 -

washing which was also a problem throughout the facility More fundamentally LSSrsquos nursing programs conduct no internal auditsto identify areas of strength or weakness

We are compelled to note that a fundamental cause of thesedeficiencies is staffing During our visit the LSS nursingdepartment had 14 vacancies for nursing positions (five positionsfor licensed vocational nurses and nine positions for registerednurses) There was a consensus among the medical director thedirector of nursing and the psychiatrist that the nursingdepartment badly needed nurses to provide consistent care toindividuals

b Infirmary

The care and services that LSS provides to medically fragileindividuals in the infirmary is inadequate and places thoseindividuals at risk of harm During our visit individualshoused in the infirmary were either sitting in the hallway orlying in bed looking at the ceiling The absence of meaningfulactivities and active treatment at the infirmary is due in largepart to the dangerously low staffing levels provided thereDuring our visit to LSS the newly assigned nurse managerindicated that there were two vacant registered nurse positionsand too few direct care staff to provide necessary services

In addition lack of competence among LSSrsquos staff has placedresidents at risk For example staff may have contributed tothe spread of serious infections because they were unfamiliarwith infection control procedures for caring for individuals withMRSA9 and did not know which individuals required isolationprecautions Similarly staff did not know resident meal plansand physical positioning plans which are necessary to maintainsafe mealtime practices and appropriate body alignment Because many infirmary residents have a high risk of aspiration or have

9 MRSA (ldquomethicillin-resistant staphylococcus aureusrdquo) isa bacteria resistant to certain antibiotics includingmethicillin oxacillin penicillin and amoxicillin Centers for Disease Control and Prevention athttpwwwcdcgovncidodhipAresistca_mrsa_publichtm MRSA manifests itself as a boil or sore on the skin and is spreadthrough contact with an infected person or a surface the personhas touched Id In some cases MRSA can have serious medicalconsequences for example by causing surgical wound infectionsbloodstream infections and pneumonia Id

- 4 -

initiate CPR3 Also they waited approximately 30 minutes beforeinitiating a medical code Further LSSrsquos documentationindicates that when additional staff were summoned to NLUrsquosroom one of the staff members who found her unresponsive refusedto assist in placing her on the floor to begin CPR because sheldquocould not go back into that roomrdquo Separately the facilityrsquossubsequent investigation determined that staff had falsified bedcheck sheets diaper changing sheets and the log book so thatthese records wrongly stated that all individuals under theircare including NLU were checked repositioned and changedat 530 am 545 am and 600 am Given that NLU reportedly was found dead about 500 am she obviously couldnot have been checked repositioned and changed on multipleoccasions thereafter At least one staff person was disciplinedfor neglect in connection with NLUrsquos death

We cannot determine if prompt resuscitation efforts wouldhave changed events However the failure to initiate suchefforts for at least 30 minutes after NLU was discovered virtually ensured the outcome The staff members involved were noted to have had basic CPR training but they had not undergonemedical emergency drills to demonstrate their ability to performthe procedures

a Nursing Services

Nursing services at LSS are inadequate The generalapproach to nursing at LSS is reactive responding to known orapparent health problems only when they reach acute statusrather than providing timely interventions to prevent or mitigatethe occurrence of acute problems Consequently LSS residentsare placed at substantial risk of grave harm

More particularly our review of individual records showedthat nursing care plans are general and vague do not addressindividualsrsquo health status and do not include necessaryinterventions to treat illness and prevent recurrence of illnessAlso recommendations in nursing care plans fail to specify thesigns and symptoms that must be monitored Further nursing careplans for individuals at high risk do not identify individualizedinterventions related to identified risk factors

3 NLU had a number of known serious medicalconditions warranting that she be cared for by staff competent inat least basic health care including first aid

- 5 -

Independent of the weaknesses in nursing care plans nursesin practice do not provide consistent monitoring and completedocumentation regarding chronic health care issues such asconstipation and aspiration that can be life-threatening forpersons with compromised health as is the case for many LSSresidents In addition although this issue is not exclusive tonursing there is also an almost total lack of preparation of thestaff regarding medical emergencies

Overall the deficiencies in nursing relate to theshortcomings in staffing (discussed further below) the lack of asystem to guide care and the competency of the nurses on dutyThese shortcomings place residents at great risk of harm

Many of the foregoing deficiencies are illustrated in thedeath of ED According to LSSrsquos records ED was a 50-year-oldLSS resident who died on [date redacted in public document] 2006from aspiration4 pneumonia Strikingly although ED had ahistory of significant gastrointestinal problems5 LSS failed to provide this individual with plans of care for these problemsthat nurses should implement Further our record reviewindicates that LSS failed to change EDrsquos diet in response tohis gastrointestinal difficulties In fact he received snacksbefore bedtime which clinicians should readily understand wouldmake these difficulties worse Further although his recordsmake clear that ED consistently had an increase in behaviorsassociated with pain in the two hours following meals we foundno evidence that his symptoms were ever assessed or addressedIn summary the evidence is compelling that ED was notadequately monitored for changes in his health status that madehim susceptible to aspiration nor was he provided withappropriate supports to minimize the risks of aspiration His death from aspiration pneumonia is highly troubling

On [date redacted in public document] 2005 LSS residentQX died of respiratory failure from recurrent aspirationpneumonias QX received all nutrition by tube and had asignificant history of aspiration pneumonias He was sent to the

4 ldquoAspirationrdquo is the entry of secretions or foreignmaterial often food into the trachea and lungs

5 These problems included gastroesophageal reflux disease(ldquorefluxrdquo or ldquoGERDrdquo) damage to the esophagus from stomach acid(ldquoBarrettrsquos esophagusrdquo) chronic inflamation of the stomachlining (ldquogastritisrdquo) and stomach protrusion into the chestcavity (ldquohiatel herniardquo)

- 6 -

infirmary for respiratory distress lowered oxygen saturations6

and rales noted to both lobes7 Notwithstanding thesesignificant health issues his medical chart contained fewnursing entries that noted QXrsquos vital signs8 lung sounds andhis overall health status QX was then transferred to thecommunity hospital and two days later was placed in intensivecare due to respiratory failure He also was diagnosed withaspiration pneumonia His condition worsened over the ensuingweeks and his family authorized a withdrawal of treatmentShortly thereafter on the 25th day of hospitalization he died

The lack of documentation in QXrsquos case is not isolatedNurses at LSS routinely fail to obtain an individualrsquos vitalsigns when appropriate For example nurses document vital signsincompletely or simply write ldquowithin normal limitsrdquo forindividuals who should have had objective measurements of theirvital signs documented in their charts Designations ldquowithinnormal limitsrdquo fail to provide specific critical information bywhich to make health decisions Separately nurses fail torecord lung sounds for individuals with identified respiratoryproblems LSSrsquos practices do not produce meaningful data abouthealth status and impair the staffrsquos ability to provideacceptable health care

Further evidencing a lack of attention to individualsrsquohealth conditions we discovered that even after a LSS residentsuffered a serious skin breakdown nurses failed to monitor thisindividualrsquos skin and a second decubitus ulcer developed The resident suffered unnecessarily due to the failure to takeprecautions to prevent the second sore

Separately LSSrsquos nursing department has no system in placeto analyze medication variances and identify trends Nor does LSS have an effective infection control program In this regardwe found no monthly or yearly analyses of infections occurring atLSS In addition we observed an absence of necessary steps toreduce infection in the infirmary including adequate hand

6 ldquoOxygen saturationrdquo refers to the amount of oxygencarried in blood cells

7 ldquoRalesrdquo refers to lung sounds that indicate possibleaspiration pneumonia or pneumonia ldquoLobesrdquo refers to the upperand lower lobes of the lung

8 ldquoVital signsrdquo are temperature pulse respiration andblood pressure readings

- 7 -

washing which was also a problem throughout the facility More fundamentally LSSrsquos nursing programs conduct no internal auditsto identify areas of strength or weakness

We are compelled to note that a fundamental cause of thesedeficiencies is staffing During our visit the LSS nursingdepartment had 14 vacancies for nursing positions (five positionsfor licensed vocational nurses and nine positions for registerednurses) There was a consensus among the medical director thedirector of nursing and the psychiatrist that the nursingdepartment badly needed nurses to provide consistent care toindividuals

b Infirmary

The care and services that LSS provides to medically fragileindividuals in the infirmary is inadequate and places thoseindividuals at risk of harm During our visit individualshoused in the infirmary were either sitting in the hallway orlying in bed looking at the ceiling The absence of meaningfulactivities and active treatment at the infirmary is due in largepart to the dangerously low staffing levels provided thereDuring our visit to LSS the newly assigned nurse managerindicated that there were two vacant registered nurse positionsand too few direct care staff to provide necessary services

In addition lack of competence among LSSrsquos staff has placedresidents at risk For example staff may have contributed tothe spread of serious infections because they were unfamiliarwith infection control procedures for caring for individuals withMRSA9 and did not know which individuals required isolationprecautions Similarly staff did not know resident meal plansand physical positioning plans which are necessary to maintainsafe mealtime practices and appropriate body alignment Because many infirmary residents have a high risk of aspiration or have

9 MRSA (ldquomethicillin-resistant staphylococcus aureusrdquo) isa bacteria resistant to certain antibiotics includingmethicillin oxacillin penicillin and amoxicillin Centers for Disease Control and Prevention athttpwwwcdcgovncidodhipAresistca_mrsa_publichtm MRSA manifests itself as a boil or sore on the skin and is spreadthrough contact with an infected person or a surface the personhas touched Id In some cases MRSA can have serious medicalconsequences for example by causing surgical wound infectionsbloodstream infections and pneumonia Id

- 5 -

Independent of the weaknesses in nursing care plans nursesin practice do not provide consistent monitoring and completedocumentation regarding chronic health care issues such asconstipation and aspiration that can be life-threatening forpersons with compromised health as is the case for many LSSresidents In addition although this issue is not exclusive tonursing there is also an almost total lack of preparation of thestaff regarding medical emergencies

Overall the deficiencies in nursing relate to theshortcomings in staffing (discussed further below) the lack of asystem to guide care and the competency of the nurses on dutyThese shortcomings place residents at great risk of harm

Many of the foregoing deficiencies are illustrated in thedeath of ED According to LSSrsquos records ED was a 50-year-oldLSS resident who died on [date redacted in public document] 2006from aspiration4 pneumonia Strikingly although ED had ahistory of significant gastrointestinal problems5 LSS failed to provide this individual with plans of care for these problemsthat nurses should implement Further our record reviewindicates that LSS failed to change EDrsquos diet in response tohis gastrointestinal difficulties In fact he received snacksbefore bedtime which clinicians should readily understand wouldmake these difficulties worse Further although his recordsmake clear that ED consistently had an increase in behaviorsassociated with pain in the two hours following meals we foundno evidence that his symptoms were ever assessed or addressedIn summary the evidence is compelling that ED was notadequately monitored for changes in his health status that madehim susceptible to aspiration nor was he provided withappropriate supports to minimize the risks of aspiration His death from aspiration pneumonia is highly troubling

On [date redacted in public document] 2005 LSS residentQX died of respiratory failure from recurrent aspirationpneumonias QX received all nutrition by tube and had asignificant history of aspiration pneumonias He was sent to the

4 ldquoAspirationrdquo is the entry of secretions or foreignmaterial often food into the trachea and lungs

5 These problems included gastroesophageal reflux disease(ldquorefluxrdquo or ldquoGERDrdquo) damage to the esophagus from stomach acid(ldquoBarrettrsquos esophagusrdquo) chronic inflamation of the stomachlining (ldquogastritisrdquo) and stomach protrusion into the chestcavity (ldquohiatel herniardquo)

- 6 -

infirmary for respiratory distress lowered oxygen saturations6

and rales noted to both lobes7 Notwithstanding thesesignificant health issues his medical chart contained fewnursing entries that noted QXrsquos vital signs8 lung sounds andhis overall health status QX was then transferred to thecommunity hospital and two days later was placed in intensivecare due to respiratory failure He also was diagnosed withaspiration pneumonia His condition worsened over the ensuingweeks and his family authorized a withdrawal of treatmentShortly thereafter on the 25th day of hospitalization he died

The lack of documentation in QXrsquos case is not isolatedNurses at LSS routinely fail to obtain an individualrsquos vitalsigns when appropriate For example nurses document vital signsincompletely or simply write ldquowithin normal limitsrdquo forindividuals who should have had objective measurements of theirvital signs documented in their charts Designations ldquowithinnormal limitsrdquo fail to provide specific critical information bywhich to make health decisions Separately nurses fail torecord lung sounds for individuals with identified respiratoryproblems LSSrsquos practices do not produce meaningful data abouthealth status and impair the staffrsquos ability to provideacceptable health care

Further evidencing a lack of attention to individualsrsquohealth conditions we discovered that even after a LSS residentsuffered a serious skin breakdown nurses failed to monitor thisindividualrsquos skin and a second decubitus ulcer developed The resident suffered unnecessarily due to the failure to takeprecautions to prevent the second sore

Separately LSSrsquos nursing department has no system in placeto analyze medication variances and identify trends Nor does LSS have an effective infection control program In this regardwe found no monthly or yearly analyses of infections occurring atLSS In addition we observed an absence of necessary steps toreduce infection in the infirmary including adequate hand

6 ldquoOxygen saturationrdquo refers to the amount of oxygencarried in blood cells

7 ldquoRalesrdquo refers to lung sounds that indicate possibleaspiration pneumonia or pneumonia ldquoLobesrdquo refers to the upperand lower lobes of the lung

8 ldquoVital signsrdquo are temperature pulse respiration andblood pressure readings

- 7 -

washing which was also a problem throughout the facility More fundamentally LSSrsquos nursing programs conduct no internal auditsto identify areas of strength or weakness

We are compelled to note that a fundamental cause of thesedeficiencies is staffing During our visit the LSS nursingdepartment had 14 vacancies for nursing positions (five positionsfor licensed vocational nurses and nine positions for registerednurses) There was a consensus among the medical director thedirector of nursing and the psychiatrist that the nursingdepartment badly needed nurses to provide consistent care toindividuals

b Infirmary

The care and services that LSS provides to medically fragileindividuals in the infirmary is inadequate and places thoseindividuals at risk of harm During our visit individualshoused in the infirmary were either sitting in the hallway orlying in bed looking at the ceiling The absence of meaningfulactivities and active treatment at the infirmary is due in largepart to the dangerously low staffing levels provided thereDuring our visit to LSS the newly assigned nurse managerindicated that there were two vacant registered nurse positionsand too few direct care staff to provide necessary services

In addition lack of competence among LSSrsquos staff has placedresidents at risk For example staff may have contributed tothe spread of serious infections because they were unfamiliarwith infection control procedures for caring for individuals withMRSA9 and did not know which individuals required isolationprecautions Similarly staff did not know resident meal plansand physical positioning plans which are necessary to maintainsafe mealtime practices and appropriate body alignment Because many infirmary residents have a high risk of aspiration or have

9 MRSA (ldquomethicillin-resistant staphylococcus aureusrdquo) isa bacteria resistant to certain antibiotics includingmethicillin oxacillin penicillin and amoxicillin Centers for Disease Control and Prevention athttpwwwcdcgovncidodhipAresistca_mrsa_publichtm MRSA manifests itself as a boil or sore on the skin and is spreadthrough contact with an infected person or a surface the personhas touched Id In some cases MRSA can have serious medicalconsequences for example by causing surgical wound infectionsbloodstream infections and pneumonia Id

- 6 -

infirmary for respiratory distress lowered oxygen saturations6

and rales noted to both lobes7 Notwithstanding thesesignificant health issues his medical chart contained fewnursing entries that noted QXrsquos vital signs8 lung sounds andhis overall health status QX was then transferred to thecommunity hospital and two days later was placed in intensivecare due to respiratory failure He also was diagnosed withaspiration pneumonia His condition worsened over the ensuingweeks and his family authorized a withdrawal of treatmentShortly thereafter on the 25th day of hospitalization he died

The lack of documentation in QXrsquos case is not isolatedNurses at LSS routinely fail to obtain an individualrsquos vitalsigns when appropriate For example nurses document vital signsincompletely or simply write ldquowithin normal limitsrdquo forindividuals who should have had objective measurements of theirvital signs documented in their charts Designations ldquowithinnormal limitsrdquo fail to provide specific critical information bywhich to make health decisions Separately nurses fail torecord lung sounds for individuals with identified respiratoryproblems LSSrsquos practices do not produce meaningful data abouthealth status and impair the staffrsquos ability to provideacceptable health care

Further evidencing a lack of attention to individualsrsquohealth conditions we discovered that even after a LSS residentsuffered a serious skin breakdown nurses failed to monitor thisindividualrsquos skin and a second decubitus ulcer developed The resident suffered unnecessarily due to the failure to takeprecautions to prevent the second sore

Separately LSSrsquos nursing department has no system in placeto analyze medication variances and identify trends Nor does LSS have an effective infection control program In this regardwe found no monthly or yearly analyses of infections occurring atLSS In addition we observed an absence of necessary steps toreduce infection in the infirmary including adequate hand

6 ldquoOxygen saturationrdquo refers to the amount of oxygencarried in blood cells

7 ldquoRalesrdquo refers to lung sounds that indicate possibleaspiration pneumonia or pneumonia ldquoLobesrdquo refers to the upperand lower lobes of the lung

8 ldquoVital signsrdquo are temperature pulse respiration andblood pressure readings

- 7 -

washing which was also a problem throughout the facility More fundamentally LSSrsquos nursing programs conduct no internal auditsto identify areas of strength or weakness

We are compelled to note that a fundamental cause of thesedeficiencies is staffing During our visit the LSS nursingdepartment had 14 vacancies for nursing positions (five positionsfor licensed vocational nurses and nine positions for registerednurses) There was a consensus among the medical director thedirector of nursing and the psychiatrist that the nursingdepartment badly needed nurses to provide consistent care toindividuals

b Infirmary

The care and services that LSS provides to medically fragileindividuals in the infirmary is inadequate and places thoseindividuals at risk of harm During our visit individualshoused in the infirmary were either sitting in the hallway orlying in bed looking at the ceiling The absence of meaningfulactivities and active treatment at the infirmary is due in largepart to the dangerously low staffing levels provided thereDuring our visit to LSS the newly assigned nurse managerindicated that there were two vacant registered nurse positionsand too few direct care staff to provide necessary services

In addition lack of competence among LSSrsquos staff has placedresidents at risk For example staff may have contributed tothe spread of serious infections because they were unfamiliarwith infection control procedures for caring for individuals withMRSA9 and did not know which individuals required isolationprecautions Similarly staff did not know resident meal plansand physical positioning plans which are necessary to maintainsafe mealtime practices and appropriate body alignment Because many infirmary residents have a high risk of aspiration or have

9 MRSA (ldquomethicillin-resistant staphylococcus aureusrdquo) isa bacteria resistant to certain antibiotics includingmethicillin oxacillin penicillin and amoxicillin Centers for Disease Control and Prevention athttpwwwcdcgovncidodhipAresistca_mrsa_publichtm MRSA manifests itself as a boil or sore on the skin and is spreadthrough contact with an infected person or a surface the personhas touched Id In some cases MRSA can have serious medicalconsequences for example by causing surgical wound infectionsbloodstream infections and pneumonia Id

- 7 -

washing which was also a problem throughout the facility More fundamentally LSSrsquos nursing programs conduct no internal auditsto identify areas of strength or weakness

We are compelled to note that a fundamental cause of thesedeficiencies is staffing During our visit the LSS nursingdepartment had 14 vacancies for nursing positions (five positionsfor licensed vocational nurses and nine positions for registerednurses) There was a consensus among the medical director thedirector of nursing and the psychiatrist that the nursingdepartment badly needed nurses to provide consistent care toindividuals

b Infirmary

The care and services that LSS provides to medically fragileindividuals in the infirmary is inadequate and places thoseindividuals at risk of harm During our visit individualshoused in the infirmary were either sitting in the hallway orlying in bed looking at the ceiling The absence of meaningfulactivities and active treatment at the infirmary is due in largepart to the dangerously low staffing levels provided thereDuring our visit to LSS the newly assigned nurse managerindicated that there were two vacant registered nurse positionsand too few direct care staff to provide necessary services

In addition lack of competence among LSSrsquos staff has placedresidents at risk For example staff may have contributed tothe spread of serious infections because they were unfamiliarwith infection control procedures for caring for individuals withMRSA9 and did not know which individuals required isolationprecautions Similarly staff did not know resident meal plansand physical positioning plans which are necessary to maintainsafe mealtime practices and appropriate body alignment Because many infirmary residents have a high risk of aspiration or have

9 MRSA (ldquomethicillin-resistant staphylococcus aureusrdquo) isa bacteria resistant to certain antibiotics includingmethicillin oxacillin penicillin and amoxicillin Centers for Disease Control and Prevention athttpwwwcdcgovncidodhipAresistca_mrsa_publichtm MRSA manifests itself as a boil or sore on the skin and is spreadthrough contact with an infected person or a surface the personhas touched Id In some cases MRSA can have serious medicalconsequences for example by causing surgical wound infectionsbloodstream infections and pneumonia Id

- 8 -

recently been treated for aspiration pneumonia staffrsquosunfamiliarity with their care plans places these residents atincreased risk of harm

Moreover the infirmary was not well-equipped to serve theneeds of medically fragile residents For example wheelchairswere not properly cleaned and inadequately sized sheets exposedresidents to risk of a skin breakdown from plastic mattresscovers In fact as of our visit five infirmary residents hadskin breakdown or decubitus ulcers which are painful anddangerous health conditions In another instance staff in theinfirmary was unable to locate the communication device for KDthereby depriving the resident the benefit of using it Even more fundamentally emergency equipment was not monitored toensure that it was functioning properly We discovered two oxygen tanks designated for use at the infirmary that were emptyThis lapse in monitoring places infirmary residents many of whomhave respiratory ailments at risk of harm

c Physical and Nutritional Management

LSS does not provide individuals with physical andnutritional management care consistent with generally acceptedprofessional standards Individuals at LSS with dysphagia(swallowing difficulty) and those at risk of aspiration are notprovided adequate assessments or interventions to address theseconditions Although there is a physical and nutritionalmanagement team (ldquoPNMTrdquo) at LSS none of its members have hadspecialized training in developing physical and nutritionalmanagement programs for residents Further the PNMT has notidentified all LSS residents in need of services and has notdeveloped categories to prioritize those with the most seriousneeds for treatment There is no system in place to(1) document an evaluation or trigger an evaluation ofresidents who gag cough or choke on food or fluids (2) alertthe PNMT that such an event has occurred or that the individual involved may need a reassessment and possible programmodification or (3) determine whether programs are effectivelytreating individuals Even LSS residents who have suffered aspiration are not provided a comprehensive reevaluation toassess the appropriateness of their PNMT plan

Meal plans we reviewed were difficult to read and lackedclear instructions for staff Our assessment which is alsosupported by LSS mealtime monitoring reviews is that meal plansare not followed positioning is not implemented on schedule andadaptive equipment is not available Moreover the monitoring isinsufficiently individualized does not occur often enough to

- 9 -

detect in a timely way when program modifications are requiredand does not consider additional settings where swallowingdifficulties may occur including during hospital visits The deficiencies we identified in physical and nutritional managementplace individuals at LSS at risk of significant harm

For example GN was a 45-year-old nonverbalnonambulatory male who had a significant number of episodes ofaspiration pneumonia pneumonia and respiratory distress datingfrom 1993 On [date redacted in public document] 2006 GN diedat a local hospital The documentation indicated that his death was related to severe respiratory failure secondary to pneumoniaGN had a percutaneous endoscopic gastronomy (commonly referredto by clinicians as a ldquoPEGrdquo) feeding tube a jejunal feeding tube(ldquoJ tuberdquo) and a gastrostomy feeding tube (ldquoG tuberdquo) placed in1999 due to aspiration and chronic bouts of vomiting Further aswallowing study demonstrated that he was experiencing aldquoswallowing dysfunctionrdquo In addition from February 2005 toDecember 2005 LSSrsquos documentation indicated that GN hadexperienced eight incidents of respiratory illnesses such asbronchitis aspiration pneumonia and pneumonia Notwithstandingthis history we could find no indication in LSSrsquos records thatthe PNMT had re-assessed GN after his respiratory episodes toensure his positioning and treatment plan were adequate to meethis serious and well-known needs

In the period before his death GNrsquos progress notesindicated that he frequently experienced coughing a decrease inhis oxygen saturations increases in his pulse and respirationsand difficulty breathing However there was no indication thatany objective clinical data were regularly monitored anddocumented such as routine lung sounds oxygen saturations andvital signs as part of a treatment plan to monitor GN for riskof aspiration In fact his latest physical and nutritionalmanagement plan (ldquoPNMPrdquo) dated October 6 2005 stated that theplanrsquos focus was preventing fractures from osteoporosis andpreventing complications from aspiration and reflux Yetnotwithstanding his clearly compromised condition and hisnumerous recent incidents of respiratory illness the PNMPidentified no interventions by which fractures or complicationsfrom aspirationreflux were to be prevented Strikingly thesection titled ldquoReviewrdquo stated that ldquo[h]is PNMP has beensuccessful as he has had no known reports of injuryrdquo and therecommendations indicted that GN was not to be re-assessed until the following year GNrsquos multiple respiration illnessesstrongly suggested that the plan actually was not working andthat GN should have been reassessed promptly

- 10 -

QX was a 36-year-old male with a history from the late1980srsquo of many aspiration pneumonias QX was fed by tube andtook nothing by mouth We could find no indication in his medical record that his vital signs oxygen saturations lungsounds or respiratory rates were regularly monitored anddocumented Notwithstanding QXrsquos history of aspirationpneumonia LSS had no interventions in place to regularly monitorand document his health status On [date redacted in publicdocument] 2005 he was noted to have labored breathing with ralesin both lobes He was noted to be moaning and his oxygensaturation dropped to 8810 He was first transferred to the facilityrsquos infirmary and later to the community medical centerwhere he died of recurrent aspiration pneumonia on [date redactedin public document] 2005 His record strongly suggests anabsence of appropriate care regarding the conditions that led tohis death

d Physical and Occupational Therapies

LSS residents are not receiving adequate physical therapy(ldquoPTrdquo) and occupational therapy (ldquoOTrdquo) services to meet theirneeds Our review of resident charts and observations made during visits to cottages mealtime settings and programs formthe basis of our finding that significant numbers of individualshave serious unmet needs in these areas There are few PT or OT therapists on staff to serve the 344 residents and the existingtherapists do not monitor the quality or consistency of PT or OTprogram implementation by direct care staff PT and OT assessments fail to consider or describe critical variables that assessments should address If an individual has a new need LSShas no system in place to inform the therapists or to trigger aPT or OT assessment or intervention Particularly concerning isLSSrsquos practice of having ambulatory individuals sit in awheelchair ostensibly to prevent falls and to facilitatetransport This is not an accepted practice and leads toregression of ambulation skills

e General Clinical Care

Medical services at LSS are provided by the full timeMedical Director and two full time physicians supplemented byspecialty clinicians in the fields of neurology dermatologypodiatry urology and ENT (Ear Nose and Throat) Chart reviews interviews and observations indicate that once anacute change in health status is identified LSS medical staff

10 Oxygen saturation levels near 100 are normal

- 11 -

provide timely interventions and appropriate documentation aboutthe individual Nevertheless certain critical components of asystemic health care plan are not in evidence at LSS there is no medical peer review system ie no medical qualityimprovement system to assess data on medical services and nosystem to identify medical trends and outcomes These deficiencies prevent the facility from identifying issues afterthe fact and correcting underlying causes to prevent futurerecurrence

For example we noted that several patients receivedldquostatrdquo11 doses of pain medication but were not subsequentlyanalyzed either as to the effect of the pain medication or thepossible masking of an underlying medical condition This is particularly problematic given that most of LSSrsquos residents havesignificant communication deficits and cannot easily reporthealth problems Further there is no formal interdisciplinaryprocess to identify individuals who are at high risk for medicalconcerns Without the establishment of such systems to assessand monitor individualsrsquo health status and to analyze healthcareat LSS facility health providers are compelled to react tosignificant but foreseeable health problems that could beavoided or mitigated Consequently they are unable toadequately serve the health care needs of LSSrsquos residents

f Neurology Services

LSS provides adequate services to address the needs ofindividuals with neurological disorders Such individuals are regularly seen and many of them have fairly well-controlledseizure-related conditions We note that required blood levelsare routinely obtained and recorded in neurology notes

g Pharmacy Services

LSSrsquos pharmacy services are adequate regarding packaginglabeling and disposition of all medications However there aresignificant deficiencies in the pharmacy reviews necessary toalert the medical staff to issues involving drug interactionsand follow-up laboratory or medical tests Specifically nomeaningful information is provided by the pharmacist on QuarterlyDrug Regimen Reviews (ldquoQDRRrdquo) In our review of over 300 QDRRs

11 Stat is a medical term meaning ldquoimmediatelyrdquo oftenas an emergency and is derived from the Latin word ldquostatimrdquowhich also means ldquoimmediatelyrdquo

- 12 -

prepared between March and May 2005 we found no mention of anyproblems regarding residentsrsquo medication ndash a finding unsupportedby data in other LSS records For example the QDRRs did notidentify lab results identifying abnormal or sub-therapeuticvalues even though such results were noted in resident chartsThe medication reviews provided by the pharmacy are inadequateand place residents at risk of harm Although these duties arestandard responsibilities of pharmacists in ICFMR facilitieslike LSS the LSS pharmacy does not routinely address theseneeds

h Dental Services

In contravention of generally accepted professionalstandards of care resident medical charts lack a comprehensivedental assessment by which to determine whether appropriatedental services are provided to residents We were told duringour visit that dental x-rays are done on some residents but noton others an approach that appears arbitrary Also asdiscussed more extensively at section IA2d below thecontinuing use of sedating medications for dental proceduresespecially in view of the absence of any de-sensitizationprogram is problematic Additionally there are no records keptat LSS regarding the use of restraints or manual holds duringdental procedures Nevertheless it is important to note that wefound an adequate response by dental practitioners whenindividuals complained of tooth pain records confirm that thosepersons were seen either on the day of the complaint or the nextday

2 Psychiatric Services

LSS does not provide adequate psychiatric services toresidents with mental illness This finding is a serious concernbecause of the number of residents currently identified asneeding psychiatric services (approximately 200 individuals) andthe reported trend at LSS to admit increasing numbers of personswith mental health issues We found evidence that the deficiencies in psychiatric services at LSS extend across severalcomponents critical to providing adequate care includingpsychiatric assessments psychiatric diagnoses medicationmanagement use of ldquopre-medicationsrdquo individual and grouptherapy and collaboration between psychiatry and neurology

a Psychiatric Assessments

Minimum professional standards of care call for a carefulprocess of collecting and assessing relevant information to

- 13 -

determine an appropriate psychiatric diagnosis However none ofthe 31 psychiatric assessments we reviewed contained thenecessary components of a standard psychiatric assessment Chart review confirmed that LSSrsquos psychiatrists do not adequatelyconsider individuals medical issues physical injuries familyand psychiatric history and comprehensive medication regime whenattempting to determine the correct psychiatric diagnosisBecause professional staff does not fully consider criticalfactors such as these the resulting assessment is incomplete andpossibly inaccurate

b Psychiatric Diagnoses

Our review evidenced that many LSS residents have beenidentified as having psychiatric disorders based on vaguediagnoses that do not comport with professional standards and donot appropriately inform treatment decisions In fact in 26 of31 records reviewed it was not possible to discern thepsychiatric diagnosis for the mental condition being treatedSimilarly the charts of DT NN and EC listed Axis I12

psychiatric diagnoses that were not acceptable under theDiagnostic and Statistical Manual of Mental Disorders (ldquoDSMrdquo)the accepted standard for psychiatric diagnostic criteriaSeparately LSSrsquos psychiatric records demonstrate a consistentlack of clinical documentation to justify the mental healthdiagnoses that are provided

A number of interrelated factors contribute to the facilityrsquos problems in developing adequate psychiatric diagnosesFirst the one full-time psychiatrist at LSS has a caseload of180 residents With this caseload the psychiatrist must dependheavily upon information provided by direct care staff todiagnose his patients However direct care staff lack adequatetraining in basic mental health issues including what symptomsand side effects to monitor and how to monitor them In this regard the psychiatrist does not routinely inform theindividualrsquos interdisciplinary team (ldquoIDTrdquo)13 of the clinical

12 ldquoAxis Irdquo mental health diagnoses are those identifiedby the Diagnostic and Statistical Manual of Mental Disorders in abroad class of ldquoclinical disordersrdquo such as deliriumschizophrenia and other psychotic disorders mood and anxietydisorders and sleep disorders

13 The IDT is composed of the facility staff membersassigned from each discipline such as occupational therapy

(continued)

- 14 -

justification for mental health diagnoses As a result themembers of the IDT do not know what symptoms to track to provideobjective data on treatment efficacy

Diagnoses drive treatment interventions includingmedication choices The absence of sound diagnoses exposes LSSrsquosresidents to counterproductive even harmful interventions andto interventions that mask but do not correct underlyingdisorders LSSrsquos failure to provide clinically justifiedpsychiatric diagnoses constitutes a substantial departure fromgenerally accepted professional standards of care that exposesits residents to harm

c Medication Management

To assess individuals mental health status and the effectiveness of their treatment facilities like LSS typicallyutilize professional treatment review teams The LSS Psychotropic Review Clinic has functional flaws it emphasizes adiscipline-specific approach is fragmented and omits the viewsof the individuals IDT Although the psychiatrist appears to beseeing residents on rounds (and making medication adjustments atthat time) there do not appear to be any established criteria inplace that would trigger psychotropic reviews when necessarySeparately treatment choices frequently do not appear to besubstantiated by the assigned diagnosis For example SEreceived antipsychotic medication to treat a movement disorderinvolving self-injurious behavior There was no documentation in his record to justify clinically this choice of treatment

Also we could not find evidence of appropriate oversight ofmedication usage by LSSrsquos residents including consideration ofpotentially more appropriate medications For example there wasno documentation to indicate that SE was seen in the Psychotropic Review Clinic to review the stabilization of hisglucose level after a medication change or to consider use ofanother medication as had been recommended in his psychiatricconsultation Nor was there any indication that the IDT haddiscussed his case LSSs failure to provide regular medicationfollow-up based on residents needs is a substantial deviation

13(continued)direct care and nursing providing supports and services to theindividual The members of the IDT are responsible for workingin collaboration to ensure that the individualrsquos care needs are met and typically are the staff members at the facility who aremost familiar with the individual

- 15 -

from accepted professional standards of safe medication practicesand places the residents at significant risk of harm

d ldquoPre-Medicationsrdquo

LSS utilizes pre-medications (sedatives administered toindividuals prior to medical or dental procedures) to controlresidents Although pre-medications are sometimes necessary atleast on a short-term basis LSSrsquos use of pre-medications isproblematic Most significantly the facility does notsystematically monitor the use of such medicationsConsequently it cannot reliably track the efficacy of themedications on particular individuals the frequency with whichindividuals are medicated with these drugs and the consequentialside effects including interactions with other medicationsfalls injuries and reduced cognition In this regardpsychiatrists are not consistently informed when their patientsreceive pre-medications although pre-medications can skew theresults of a mental status examination and cause behavioral problems Separately and more fundamentally we did not seeevidence that de-sensitization programs were in place at LSS tohelp diffuse individuals fear of procedures and eventuallyreduce the need for pre-medication LSSrsquos pre-medicationpractices constitute a substantial departure from generallyaccepted professional standards of care that expose individualsto harm

e Individual and Group Therapy

Accepted standards of psychiatric practice require thatpersons with mental illness are assessed to determine their needfor treatment There is no system at LSS to ensure thatindividuals are assessed evaluated and referred for individualor group therapy Chart reviews at LSS indicated that only threeindividuals of the 200 identified with mental illness receive therapy Individuals with a clear need for psychotherapy at LSSwere not referred for treatment These included persons who haveexperienced abusive and traumatic events Failure to providenecessary treatment places LSSrsquos residents at risk of substantialharm

f Collaboration between Psychiatry andNeurology

LSS lacks a formal system for collaboration betweenpsychiatry and neurology staff on safe medication practices forindividuals with co-occurring seizure and mental healthdisorders This is a substantial deviation from accepted

- 16 -

standards of care and places individuals at risk of harmSpecifically the side effects of medications in both areas canhave a far-reaching impact on the individualrsquos health andbehavior Without a system in place to exchange informationbetween these two disciplines treatment altered by one specialtycould destabilize treatment from the other specialty

B Protection from Harm

LSS fails to provide basic oversight of resident care andtreatment critical to ensuring the reasonable safety of itsresidents As described in more detail below LSSrsquos failure toprotect residents from harm stems from inadequate supervisionthe failure to appropriately detect and prevent abuse andneglect and an inadequate incident management systemConsequently residents are exposed to significant harm

1 Inadequate Supervision and Neglect

Our review of facility incident reports and investigationsconfirmed that residents are being subjected to a wide-spreadpattern of harm due to inadequate supervision neglect andpossible abuse The circumstances surrounding the death ofNLU (described in more detail at section IA1 above) inwhich staff failed to call for immediate medical attentionfailed to assist with basic first aid and falsified recordsevidence significant neglect Other examples we identifiedinclude

bull On May 5 2005 a staff person who was assigned one-to-one supervision to ES failed to notice that ES hadfastened a belt around his neck According to LSSrsquosrecords this occurred when the lights were off inESrsquos room two televisions were on and the staffperson was using her personal cell phone

bull On May 9 2005 CS was discovered to have twodecubitus ulcers on her buttocks and another on her shoulder These sores according to LSSrsquos own recordswere a result of workers not changing CSrsquos positionand leaving her lying in urine-soaked diapers

bull NP has PICA (an eating disorder involving themouthing or ingestion of non-food substances)Notwithstanding the identified need to protect NPfrom ingesting nonedible items facility recordsindicate that NP repeatedly has been discoveredchewing or eating harmful objects For example on

- 17 -

April 18 2004 staff discovered NP chewing on apiece of gel cushion on September 28 2004 during aldquodiaper checkrdquo staff discovered a glove coming out ofNPrsquos rectum and on October 25 2004 a ldquoforeignbodyrdquo was discovered in NP during an x-ray

bull On February 18 2004 MK had an x-ray to determine ifhe had a high fecal impaction The x-ray confirmed theimpaction and also revealed that MK had ingested abutton Examination of his clothing revealed severalbuttons were missing from his shirts LSS had removed clothing with buttons from MKrsquos wardrobe but did notaddress the adequacy of his supervision

bull On either June 6 2005 or June 7 2005 QD was foundwith a 15 cut to his face and two black eyes No one reportedly witnessed the cause of the injuries The LSS investigation included a report stating that otherindividuals in the same home had had bruises or injuries during the same approximate time period butincidents that may have caused bruising and injurieshad never been seen Individuals sustaining injurieswere unable to explain what happened Multiple staffmembers including direct care staff and managementstaff stated to us during our visit that ldquomostrdquo of theapproximately 23 residents in the home were intimidatedor frightened by a particular male staff memberassigned to this home on the 200 pm - 1000 pmshift This staff person reportedly has beeninvestigated in the past for similar incidents and wasalways working within the time frame of the reportedinjuries We did not see evidence that LSS took action in response to these residentsrsquo concerns or the patternof injuries and staff assignments

As of the time of our visit 66 of the population at LSShas been injured by another resident badly enough to require morethan first aid Almost 50 of the population was injured byanother peer at least one time from April 2004 to April 2005Individuals at LSS continue to be at risk of resident-to-resident injuries including human bites and fractures Seventy-threeresidents (21 of the LSS population) have been injured fromtheir peersrsquo bites and 41 of these residents (56) requiredmedical attention as a result

Even in instances where known behavioral risks have been communicated staff were unable to respond adequately This is particularly evident in cases of residents causing injuries to

- 18 -

other residents For example UKT was bitten by otherresidents 26 times between May 2003 and May 2005 One resident was responsible for 16 of those bites while another residentcaused five bites As a result of these bites UKT requiredmedical care to her face wrist forearm upper arm shoulder andback

2 Inadequate Incident Management

Generally accepted professional standards of care requirethat facilities gather and assess incident data to identifypotentially problematic trends and to identify implement andmonitor implementation of corrective action Proper incidentinvestigations are also a federal regulatory requirement See 42 CFR sect 483420(d)(2)-(4) (requiring that incidents beinvestigated and appropriate action taken)

LSS does not have an effective incident management andquality improvement system For instance LSS does not audit toconfirm that significant resident injuries are reported forinvestigation Many abuse and neglect investigation files thatwe reviewed indicated that staff had knowledge of an incident butfailed to report it Further staff were not corrected forfailing to report A few examples of staffrsquos failure to reportabuse and neglect include

bull On February 7 2005 SH ingested an orange neonrubber string while on one-to-one supervision No incident report was ever filed nor was aninvestigation opened regarding the staffrsquos failure tosupervise SH properly

bull On August 5 2004 EE ingested stickers while she wassupervised by one-to-one staff Following thisincident staff also failed to file any written reportor investigate neglect

bull On June 15 2004 another LSS resident EN ingesteda nickel while on one-to-one supervision Like the other residents mentioned above there was no report ofthis incident or investigation of neglect

These examples indicate that LSS is experiencing significantunder reporting of incidents Failure by staff to report abuseand neglect places residents at significant risk of immediate andfuture harm

- 19 -

C BEHAVIOR PROGRAMS RESTRAINTS AND HABILITATION

LSSrsquos residents are entitled to ldquothe minimally adequatetraining required by the Constitution as may be reasonablein light of [the residentsrsquo] liberty interests in safety andfreedom from unreasonable restraintsrdquo Youngberg 457 US at322 LSS fails to provide adequate psychological services tomeet the needs of residents with behavior problemsSpecifically LSS (1) provides residents with ineffectivebehavioral programs (2) exposes residents to undue restraintsand (3) provides inadequate habilitation treatment and activityprograms

Generally accepted professional practice requires thatappropriate psychological interventions such as behaviorprograms andor habilitation plans14 be used to address significant behavior problems However many LSS residents whorequire psychological interventions are simply not provided themAs described in more detail below LSSrsquos deficiencies in thisarea substantially hinder treatment of residentsrsquo problembehaviors exposing residents to a significantly increased riskof abuse and compromising residentsrsquo opportunities for placementin a more integrated setting The examples of injurious behaviorset forth above in addition to demonstrating inadequatesupervision and neglect also demonstrate significant weaknessesin LSSrsquos behavioral programming

1 Behavior Programs

Generally accepted professional standards of practiceprovide that behavior programs (1) be based on adequatefunctional assessments (2) be implemented as written and (3) bemonitored and evaluated adequately Ineffective behavior programs increase the likelihood that residents engage in harmfuland inappropriate (rdquomaladaptiverdquo) behaviors subjecting them tounnecessarily restrictive interventions and treatments LSSrsquos behavior programs are ineffective and substantially depart fromgenerally accepted professional standards In particular theyare not based on adequate functional assessments not implementedas written and are not monitored evaluated and revisedadequately

14 Habilitation includes but is not limited toindividualized training education and skill acquisitionprograms developed and implemented by interdisciplinary teams topromote the growth development and independence of individuals

- 20 -

For example HH has been diagnosed with PICA Her psychologist reports that on October 8 2004 she tore open thearmrest of a recliner and attempted to eat the stuffing She also has chewed on the edge of a dining room table a bed sheetand a piece of diaper According to the psychologist testingHH boredom was the underlying cause which indicates that HHdoes not receive adequate habilitation and training HH has a behavior support plan (ldquoBSPrdquo) to address these issues but ratherthan modify the BSP or ensure that it was properly implementedto address her boredom HH was prescribed Zyprexa an atypicalantipsychotic medication and the antidepressant Paxil

a Functional Assessment

Generally accepted professional standards of care for thispopulation dictate that there is an adequate and currentfunctional assessment in all cases prior to the initiation ofpsychological treatment A functional assessment is a professional assessment technique that identifies the particularpositive or negative factors that prompt or maintain achallenging behavior for a given individual By understandingthe causes or ldquofunctionrdquo of challenging behaviorsprofessionals can attempt to reduce or eliminate these factorsrsquoinfluence and thus reduce or eliminate the challengingbehaviors Without such informed understanding of the cause ofbehaviors attempted treatments are arbitrary and ineffective

The functional assessments developed by LSSrsquos psychologystaff are seriously deficient They are somewhat arbitrary andfail to address highly relevant information such as (1) aresidentrsquos background including social history and treatmentexperiences (2) summary behavior data (3) assessment tools usedto determine the function of the behavior (4) medical issuesparticularly health problems that might influence the behavior(5) mental health concerns including clinical diagnoses anddescriptions of clinical or behavioral manifestations associatedwith each diagnosis and (6) recommended treatmentinterventionthat develop new skills and appropriate replacement behaviorsthat adequately substitute for the maladaptive behavior

Without a thorough assessment of the function of theresidentrsquos maladaptive behavior including clearly identifiedappropriate replacement behaviors behavior programs will not besuccessful in modifying the maladaptive behavior As a result of LSSrsquos incomplete assessments numerous residents with behavioraldifficulties and other residents in their proximity haveremained at risk of harm due to ongoing behavior problems thatare not treated effectively

- 21 -

b Behavior Program Implementation

Improper implementation of a behavior program can lead tothe inadvertent reinforcement of maladaptive behaviors as wellexcessive use of restrictive treatments Throughout LSS weobserved numerous incidents of inadequate implementation ofbehavioral support programs

Consistent and correct implementation of appropriatebehavior programs is essential However as stated above thewritten programs themselves are deficient and the inconsistentimplementation of these inadequate programs only magnifies theseinadequacies resulting in a level of care that is grosslyinconsistent with generally accepted professional standards ofcare This poor implementation of programming places LSSrsquosresidents with behavior problems at risk of continued harmcontinued exposure to restrictive interventions and continuedinstitutionalization Many of the problems stem from inadequatecompetency-based training of staff regarding the properimplementation of behavior programs

c Monitoring and Evaluation

Generally accepted professional standards of care requirethat facilities monitor residents who have behavior programs toassess the residentsrsquo progress and the programrsquos efficacyWithout the necessary monitoring and evaluation residents are indanger of being subjected to inadequate and unnecessarilyrestrictive treatment as well as avoidable injuries related tountreated behaviors In this regard the injury data discussedabove particularly regarding human bites provides strongevidence that plans are ineffective

None of the behavior programs we reviewed specified theprocedure used to monitor the resident or supervise staffimplementation of the program and none of the programs providedfor measuring changes in replacement behaviors Further thesafeguard of professional review and monitoring of behaviorsupport services at LSS is woefully inadequate Contrary togenerally accepted professional standards of care there is noprofessional review prior to implementation of BSPs byindividuals with expertise in applied behavior analysis and inthe development and implementation of behavior supports We found no documentation evidencing a review of BSPs forappropriate content completion and protection of individualrights including restraint reduction plans and informed consentfor any restrictive practices which again is contrary togenerally accepted standards of care

- 22 -

The Behavior Support Review Committee (ldquoBSRCrdquo) review forQN diagnosed with Alzheimerrsquos was limited to a review of herpsychotropic medications and a statement that her problembehavior of aggression would be included in her BSP There was no evidence of a review of the BSP itself including whether itprovided for monitoring of the behaviors which the psychotropicmedication was intended to address (ldquotarget behaviorsrdquo) noconsideration of assessment results nor consideration of thehypothesized function of the problem behavior There was also no discussion of the BSPrsquos failure to identify any support for theAlzheimerrsquos diagnosis

d Quality Assurance

There is no ongoing facility-wide tracking of criticalaspects of psychological services at LSS such as the use ofrestraints the use of emergency procedures the development andupdate of functional assessments and staff implementation ofprograms There is no systemic tracking and analysis of the typeof restrictive components contained in BSPs In fact no oneknew basic information such as the number of BSPs that had restrictive components

Additionally all of the BSPs we reviewed failed to provideprecise strategies for measuring the effectiveness of the planThe outcomes currently used by LSS to measure effectiveness arenot indicators of a positive quality of life Instead there isa reliance on the frequency of problem behaviors Although theBSPs all mention collecting data regarding the occurrence ofproblem behaviors no plan addresses the methods used to ensurepromotion of positive replacement behaviors and we found nonethat monitors the individualrsquos use of such behaviors

There is also no systemic review of data reliability at LSSSimilarly the accuracy of behavior data is suspect In this regard problem behaviors are often too poorly defined to bemonitored accurately For example five different behaviorscould be described as ldquoaggressionrdquo and data are recorded asldquoaggressionrdquo when any of the five behaviors is exhibited Cf 42 CFR sect 483440(e)(1) (ldquoData relative to accomplishment of thecriteria specified in client individual program plan objectivesmust be documented in measurable termsrdquo) Consequently thecollected data are not clinically useful

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 9 -

detect in a timely way when program modifications are requiredand does not consider additional settings where swallowingdifficulties may occur including during hospital visits The deficiencies we identified in physical and nutritional managementplace individuals at LSS at risk of significant harm

For example GN was a 45-year-old nonverbalnonambulatory male who had a significant number of episodes ofaspiration pneumonia pneumonia and respiratory distress datingfrom 1993 On [date redacted in public document] 2006 GN diedat a local hospital The documentation indicated that his death was related to severe respiratory failure secondary to pneumoniaGN had a percutaneous endoscopic gastronomy (commonly referredto by clinicians as a ldquoPEGrdquo) feeding tube a jejunal feeding tube(ldquoJ tuberdquo) and a gastrostomy feeding tube (ldquoG tuberdquo) placed in1999 due to aspiration and chronic bouts of vomiting Further aswallowing study demonstrated that he was experiencing aldquoswallowing dysfunctionrdquo In addition from February 2005 toDecember 2005 LSSrsquos documentation indicated that GN hadexperienced eight incidents of respiratory illnesses such asbronchitis aspiration pneumonia and pneumonia Notwithstandingthis history we could find no indication in LSSrsquos records thatthe PNMT had re-assessed GN after his respiratory episodes toensure his positioning and treatment plan were adequate to meethis serious and well-known needs

In the period before his death GNrsquos progress notesindicated that he frequently experienced coughing a decrease inhis oxygen saturations increases in his pulse and respirationsand difficulty breathing However there was no indication thatany objective clinical data were regularly monitored anddocumented such as routine lung sounds oxygen saturations andvital signs as part of a treatment plan to monitor GN for riskof aspiration In fact his latest physical and nutritionalmanagement plan (ldquoPNMPrdquo) dated October 6 2005 stated that theplanrsquos focus was preventing fractures from osteoporosis andpreventing complications from aspiration and reflux Yetnotwithstanding his clearly compromised condition and hisnumerous recent incidents of respiratory illness the PNMPidentified no interventions by which fractures or complicationsfrom aspirationreflux were to be prevented Strikingly thesection titled ldquoReviewrdquo stated that ldquo[h]is PNMP has beensuccessful as he has had no known reports of injuryrdquo and therecommendations indicted that GN was not to be re-assessed until the following year GNrsquos multiple respiration illnessesstrongly suggested that the plan actually was not working andthat GN should have been reassessed promptly

- 10 -

QX was a 36-year-old male with a history from the late1980srsquo of many aspiration pneumonias QX was fed by tube andtook nothing by mouth We could find no indication in his medical record that his vital signs oxygen saturations lungsounds or respiratory rates were regularly monitored anddocumented Notwithstanding QXrsquos history of aspirationpneumonia LSS had no interventions in place to regularly monitorand document his health status On [date redacted in publicdocument] 2005 he was noted to have labored breathing with ralesin both lobes He was noted to be moaning and his oxygensaturation dropped to 8810 He was first transferred to the facilityrsquos infirmary and later to the community medical centerwhere he died of recurrent aspiration pneumonia on [date redactedin public document] 2005 His record strongly suggests anabsence of appropriate care regarding the conditions that led tohis death

d Physical and Occupational Therapies

LSS residents are not receiving adequate physical therapy(ldquoPTrdquo) and occupational therapy (ldquoOTrdquo) services to meet theirneeds Our review of resident charts and observations made during visits to cottages mealtime settings and programs formthe basis of our finding that significant numbers of individualshave serious unmet needs in these areas There are few PT or OT therapists on staff to serve the 344 residents and the existingtherapists do not monitor the quality or consistency of PT or OTprogram implementation by direct care staff PT and OT assessments fail to consider or describe critical variables that assessments should address If an individual has a new need LSShas no system in place to inform the therapists or to trigger aPT or OT assessment or intervention Particularly concerning isLSSrsquos practice of having ambulatory individuals sit in awheelchair ostensibly to prevent falls and to facilitatetransport This is not an accepted practice and leads toregression of ambulation skills

e General Clinical Care

Medical services at LSS are provided by the full timeMedical Director and two full time physicians supplemented byspecialty clinicians in the fields of neurology dermatologypodiatry urology and ENT (Ear Nose and Throat) Chart reviews interviews and observations indicate that once anacute change in health status is identified LSS medical staff

10 Oxygen saturation levels near 100 are normal

- 11 -

provide timely interventions and appropriate documentation aboutthe individual Nevertheless certain critical components of asystemic health care plan are not in evidence at LSS there is no medical peer review system ie no medical qualityimprovement system to assess data on medical services and nosystem to identify medical trends and outcomes These deficiencies prevent the facility from identifying issues afterthe fact and correcting underlying causes to prevent futurerecurrence

For example we noted that several patients receivedldquostatrdquo11 doses of pain medication but were not subsequentlyanalyzed either as to the effect of the pain medication or thepossible masking of an underlying medical condition This is particularly problematic given that most of LSSrsquos residents havesignificant communication deficits and cannot easily reporthealth problems Further there is no formal interdisciplinaryprocess to identify individuals who are at high risk for medicalconcerns Without the establishment of such systems to assessand monitor individualsrsquo health status and to analyze healthcareat LSS facility health providers are compelled to react tosignificant but foreseeable health problems that could beavoided or mitigated Consequently they are unable toadequately serve the health care needs of LSSrsquos residents

f Neurology Services

LSS provides adequate services to address the needs ofindividuals with neurological disorders Such individuals are regularly seen and many of them have fairly well-controlledseizure-related conditions We note that required blood levelsare routinely obtained and recorded in neurology notes

g Pharmacy Services

LSSrsquos pharmacy services are adequate regarding packaginglabeling and disposition of all medications However there aresignificant deficiencies in the pharmacy reviews necessary toalert the medical staff to issues involving drug interactionsand follow-up laboratory or medical tests Specifically nomeaningful information is provided by the pharmacist on QuarterlyDrug Regimen Reviews (ldquoQDRRrdquo) In our review of over 300 QDRRs

11 Stat is a medical term meaning ldquoimmediatelyrdquo oftenas an emergency and is derived from the Latin word ldquostatimrdquowhich also means ldquoimmediatelyrdquo

- 12 -

prepared between March and May 2005 we found no mention of anyproblems regarding residentsrsquo medication ndash a finding unsupportedby data in other LSS records For example the QDRRs did notidentify lab results identifying abnormal or sub-therapeuticvalues even though such results were noted in resident chartsThe medication reviews provided by the pharmacy are inadequateand place residents at risk of harm Although these duties arestandard responsibilities of pharmacists in ICFMR facilitieslike LSS the LSS pharmacy does not routinely address theseneeds

h Dental Services

In contravention of generally accepted professionalstandards of care resident medical charts lack a comprehensivedental assessment by which to determine whether appropriatedental services are provided to residents We were told duringour visit that dental x-rays are done on some residents but noton others an approach that appears arbitrary Also asdiscussed more extensively at section IA2d below thecontinuing use of sedating medications for dental proceduresespecially in view of the absence of any de-sensitizationprogram is problematic Additionally there are no records keptat LSS regarding the use of restraints or manual holds duringdental procedures Nevertheless it is important to note that wefound an adequate response by dental practitioners whenindividuals complained of tooth pain records confirm that thosepersons were seen either on the day of the complaint or the nextday

2 Psychiatric Services

LSS does not provide adequate psychiatric services toresidents with mental illness This finding is a serious concernbecause of the number of residents currently identified asneeding psychiatric services (approximately 200 individuals) andthe reported trend at LSS to admit increasing numbers of personswith mental health issues We found evidence that the deficiencies in psychiatric services at LSS extend across severalcomponents critical to providing adequate care includingpsychiatric assessments psychiatric diagnoses medicationmanagement use of ldquopre-medicationsrdquo individual and grouptherapy and collaboration between psychiatry and neurology

a Psychiatric Assessments

Minimum professional standards of care call for a carefulprocess of collecting and assessing relevant information to

- 13 -

determine an appropriate psychiatric diagnosis However none ofthe 31 psychiatric assessments we reviewed contained thenecessary components of a standard psychiatric assessment Chart review confirmed that LSSrsquos psychiatrists do not adequatelyconsider individuals medical issues physical injuries familyand psychiatric history and comprehensive medication regime whenattempting to determine the correct psychiatric diagnosisBecause professional staff does not fully consider criticalfactors such as these the resulting assessment is incomplete andpossibly inaccurate

b Psychiatric Diagnoses

Our review evidenced that many LSS residents have beenidentified as having psychiatric disorders based on vaguediagnoses that do not comport with professional standards and donot appropriately inform treatment decisions In fact in 26 of31 records reviewed it was not possible to discern thepsychiatric diagnosis for the mental condition being treatedSimilarly the charts of DT NN and EC listed Axis I12

psychiatric diagnoses that were not acceptable under theDiagnostic and Statistical Manual of Mental Disorders (ldquoDSMrdquo)the accepted standard for psychiatric diagnostic criteriaSeparately LSSrsquos psychiatric records demonstrate a consistentlack of clinical documentation to justify the mental healthdiagnoses that are provided

A number of interrelated factors contribute to the facilityrsquos problems in developing adequate psychiatric diagnosesFirst the one full-time psychiatrist at LSS has a caseload of180 residents With this caseload the psychiatrist must dependheavily upon information provided by direct care staff todiagnose his patients However direct care staff lack adequatetraining in basic mental health issues including what symptomsand side effects to monitor and how to monitor them In this regard the psychiatrist does not routinely inform theindividualrsquos interdisciplinary team (ldquoIDTrdquo)13 of the clinical

12 ldquoAxis Irdquo mental health diagnoses are those identifiedby the Diagnostic and Statistical Manual of Mental Disorders in abroad class of ldquoclinical disordersrdquo such as deliriumschizophrenia and other psychotic disorders mood and anxietydisorders and sleep disorders

13 The IDT is composed of the facility staff membersassigned from each discipline such as occupational therapy

(continued)

- 14 -

justification for mental health diagnoses As a result themembers of the IDT do not know what symptoms to track to provideobjective data on treatment efficacy

Diagnoses drive treatment interventions includingmedication choices The absence of sound diagnoses exposes LSSrsquosresidents to counterproductive even harmful interventions andto interventions that mask but do not correct underlyingdisorders LSSrsquos failure to provide clinically justifiedpsychiatric diagnoses constitutes a substantial departure fromgenerally accepted professional standards of care that exposesits residents to harm

c Medication Management

To assess individuals mental health status and the effectiveness of their treatment facilities like LSS typicallyutilize professional treatment review teams The LSS Psychotropic Review Clinic has functional flaws it emphasizes adiscipline-specific approach is fragmented and omits the viewsof the individuals IDT Although the psychiatrist appears to beseeing residents on rounds (and making medication adjustments atthat time) there do not appear to be any established criteria inplace that would trigger psychotropic reviews when necessarySeparately treatment choices frequently do not appear to besubstantiated by the assigned diagnosis For example SEreceived antipsychotic medication to treat a movement disorderinvolving self-injurious behavior There was no documentation in his record to justify clinically this choice of treatment

Also we could not find evidence of appropriate oversight ofmedication usage by LSSrsquos residents including consideration ofpotentially more appropriate medications For example there wasno documentation to indicate that SE was seen in the Psychotropic Review Clinic to review the stabilization of hisglucose level after a medication change or to consider use ofanother medication as had been recommended in his psychiatricconsultation Nor was there any indication that the IDT haddiscussed his case LSSs failure to provide regular medicationfollow-up based on residents needs is a substantial deviation

13(continued)direct care and nursing providing supports and services to theindividual The members of the IDT are responsible for workingin collaboration to ensure that the individualrsquos care needs are met and typically are the staff members at the facility who aremost familiar with the individual

- 15 -

from accepted professional standards of safe medication practicesand places the residents at significant risk of harm

d ldquoPre-Medicationsrdquo

LSS utilizes pre-medications (sedatives administered toindividuals prior to medical or dental procedures) to controlresidents Although pre-medications are sometimes necessary atleast on a short-term basis LSSrsquos use of pre-medications isproblematic Most significantly the facility does notsystematically monitor the use of such medicationsConsequently it cannot reliably track the efficacy of themedications on particular individuals the frequency with whichindividuals are medicated with these drugs and the consequentialside effects including interactions with other medicationsfalls injuries and reduced cognition In this regardpsychiatrists are not consistently informed when their patientsreceive pre-medications although pre-medications can skew theresults of a mental status examination and cause behavioral problems Separately and more fundamentally we did not seeevidence that de-sensitization programs were in place at LSS tohelp diffuse individuals fear of procedures and eventuallyreduce the need for pre-medication LSSrsquos pre-medicationpractices constitute a substantial departure from generallyaccepted professional standards of care that expose individualsto harm

e Individual and Group Therapy

Accepted standards of psychiatric practice require thatpersons with mental illness are assessed to determine their needfor treatment There is no system at LSS to ensure thatindividuals are assessed evaluated and referred for individualor group therapy Chart reviews at LSS indicated that only threeindividuals of the 200 identified with mental illness receive therapy Individuals with a clear need for psychotherapy at LSSwere not referred for treatment These included persons who haveexperienced abusive and traumatic events Failure to providenecessary treatment places LSSrsquos residents at risk of substantialharm

f Collaboration between Psychiatry andNeurology

LSS lacks a formal system for collaboration betweenpsychiatry and neurology staff on safe medication practices forindividuals with co-occurring seizure and mental healthdisorders This is a substantial deviation from accepted

- 16 -

standards of care and places individuals at risk of harmSpecifically the side effects of medications in both areas canhave a far-reaching impact on the individualrsquos health andbehavior Without a system in place to exchange informationbetween these two disciplines treatment altered by one specialtycould destabilize treatment from the other specialty

B Protection from Harm

LSS fails to provide basic oversight of resident care andtreatment critical to ensuring the reasonable safety of itsresidents As described in more detail below LSSrsquos failure toprotect residents from harm stems from inadequate supervisionthe failure to appropriately detect and prevent abuse andneglect and an inadequate incident management systemConsequently residents are exposed to significant harm

1 Inadequate Supervision and Neglect

Our review of facility incident reports and investigationsconfirmed that residents are being subjected to a wide-spreadpattern of harm due to inadequate supervision neglect andpossible abuse The circumstances surrounding the death ofNLU (described in more detail at section IA1 above) inwhich staff failed to call for immediate medical attentionfailed to assist with basic first aid and falsified recordsevidence significant neglect Other examples we identifiedinclude

bull On May 5 2005 a staff person who was assigned one-to-one supervision to ES failed to notice that ES hadfastened a belt around his neck According to LSSrsquosrecords this occurred when the lights were off inESrsquos room two televisions were on and the staffperson was using her personal cell phone

bull On May 9 2005 CS was discovered to have twodecubitus ulcers on her buttocks and another on her shoulder These sores according to LSSrsquos own recordswere a result of workers not changing CSrsquos positionand leaving her lying in urine-soaked diapers

bull NP has PICA (an eating disorder involving themouthing or ingestion of non-food substances)Notwithstanding the identified need to protect NPfrom ingesting nonedible items facility recordsindicate that NP repeatedly has been discoveredchewing or eating harmful objects For example on

- 17 -

April 18 2004 staff discovered NP chewing on apiece of gel cushion on September 28 2004 during aldquodiaper checkrdquo staff discovered a glove coming out ofNPrsquos rectum and on October 25 2004 a ldquoforeignbodyrdquo was discovered in NP during an x-ray

bull On February 18 2004 MK had an x-ray to determine ifhe had a high fecal impaction The x-ray confirmed theimpaction and also revealed that MK had ingested abutton Examination of his clothing revealed severalbuttons were missing from his shirts LSS had removed clothing with buttons from MKrsquos wardrobe but did notaddress the adequacy of his supervision

bull On either June 6 2005 or June 7 2005 QD was foundwith a 15 cut to his face and two black eyes No one reportedly witnessed the cause of the injuries The LSS investigation included a report stating that otherindividuals in the same home had had bruises or injuries during the same approximate time period butincidents that may have caused bruising and injurieshad never been seen Individuals sustaining injurieswere unable to explain what happened Multiple staffmembers including direct care staff and managementstaff stated to us during our visit that ldquomostrdquo of theapproximately 23 residents in the home were intimidatedor frightened by a particular male staff memberassigned to this home on the 200 pm - 1000 pmshift This staff person reportedly has beeninvestigated in the past for similar incidents and wasalways working within the time frame of the reportedinjuries We did not see evidence that LSS took action in response to these residentsrsquo concerns or the patternof injuries and staff assignments

As of the time of our visit 66 of the population at LSShas been injured by another resident badly enough to require morethan first aid Almost 50 of the population was injured byanother peer at least one time from April 2004 to April 2005Individuals at LSS continue to be at risk of resident-to-resident injuries including human bites and fractures Seventy-threeresidents (21 of the LSS population) have been injured fromtheir peersrsquo bites and 41 of these residents (56) requiredmedical attention as a result

Even in instances where known behavioral risks have been communicated staff were unable to respond adequately This is particularly evident in cases of residents causing injuries to

- 18 -

other residents For example UKT was bitten by otherresidents 26 times between May 2003 and May 2005 One resident was responsible for 16 of those bites while another residentcaused five bites As a result of these bites UKT requiredmedical care to her face wrist forearm upper arm shoulder andback

2 Inadequate Incident Management

Generally accepted professional standards of care requirethat facilities gather and assess incident data to identifypotentially problematic trends and to identify implement andmonitor implementation of corrective action Proper incidentinvestigations are also a federal regulatory requirement See 42 CFR sect 483420(d)(2)-(4) (requiring that incidents beinvestigated and appropriate action taken)

LSS does not have an effective incident management andquality improvement system For instance LSS does not audit toconfirm that significant resident injuries are reported forinvestigation Many abuse and neglect investigation files thatwe reviewed indicated that staff had knowledge of an incident butfailed to report it Further staff were not corrected forfailing to report A few examples of staffrsquos failure to reportabuse and neglect include

bull On February 7 2005 SH ingested an orange neonrubber string while on one-to-one supervision No incident report was ever filed nor was aninvestigation opened regarding the staffrsquos failure tosupervise SH properly

bull On August 5 2004 EE ingested stickers while she wassupervised by one-to-one staff Following thisincident staff also failed to file any written reportor investigate neglect

bull On June 15 2004 another LSS resident EN ingesteda nickel while on one-to-one supervision Like the other residents mentioned above there was no report ofthis incident or investigation of neglect

These examples indicate that LSS is experiencing significantunder reporting of incidents Failure by staff to report abuseand neglect places residents at significant risk of immediate andfuture harm

- 19 -

C BEHAVIOR PROGRAMS RESTRAINTS AND HABILITATION

LSSrsquos residents are entitled to ldquothe minimally adequatetraining required by the Constitution as may be reasonablein light of [the residentsrsquo] liberty interests in safety andfreedom from unreasonable restraintsrdquo Youngberg 457 US at322 LSS fails to provide adequate psychological services tomeet the needs of residents with behavior problemsSpecifically LSS (1) provides residents with ineffectivebehavioral programs (2) exposes residents to undue restraintsand (3) provides inadequate habilitation treatment and activityprograms

Generally accepted professional practice requires thatappropriate psychological interventions such as behaviorprograms andor habilitation plans14 be used to address significant behavior problems However many LSS residents whorequire psychological interventions are simply not provided themAs described in more detail below LSSrsquos deficiencies in thisarea substantially hinder treatment of residentsrsquo problembehaviors exposing residents to a significantly increased riskof abuse and compromising residentsrsquo opportunities for placementin a more integrated setting The examples of injurious behaviorset forth above in addition to demonstrating inadequatesupervision and neglect also demonstrate significant weaknessesin LSSrsquos behavioral programming

1 Behavior Programs

Generally accepted professional standards of practiceprovide that behavior programs (1) be based on adequatefunctional assessments (2) be implemented as written and (3) bemonitored and evaluated adequately Ineffective behavior programs increase the likelihood that residents engage in harmfuland inappropriate (rdquomaladaptiverdquo) behaviors subjecting them tounnecessarily restrictive interventions and treatments LSSrsquos behavior programs are ineffective and substantially depart fromgenerally accepted professional standards In particular theyare not based on adequate functional assessments not implementedas written and are not monitored evaluated and revisedadequately

14 Habilitation includes but is not limited toindividualized training education and skill acquisitionprograms developed and implemented by interdisciplinary teams topromote the growth development and independence of individuals

- 20 -

For example HH has been diagnosed with PICA Her psychologist reports that on October 8 2004 she tore open thearmrest of a recliner and attempted to eat the stuffing She also has chewed on the edge of a dining room table a bed sheetand a piece of diaper According to the psychologist testingHH boredom was the underlying cause which indicates that HHdoes not receive adequate habilitation and training HH has a behavior support plan (ldquoBSPrdquo) to address these issues but ratherthan modify the BSP or ensure that it was properly implementedto address her boredom HH was prescribed Zyprexa an atypicalantipsychotic medication and the antidepressant Paxil

a Functional Assessment

Generally accepted professional standards of care for thispopulation dictate that there is an adequate and currentfunctional assessment in all cases prior to the initiation ofpsychological treatment A functional assessment is a professional assessment technique that identifies the particularpositive or negative factors that prompt or maintain achallenging behavior for a given individual By understandingthe causes or ldquofunctionrdquo of challenging behaviorsprofessionals can attempt to reduce or eliminate these factorsrsquoinfluence and thus reduce or eliminate the challengingbehaviors Without such informed understanding of the cause ofbehaviors attempted treatments are arbitrary and ineffective

The functional assessments developed by LSSrsquos psychologystaff are seriously deficient They are somewhat arbitrary andfail to address highly relevant information such as (1) aresidentrsquos background including social history and treatmentexperiences (2) summary behavior data (3) assessment tools usedto determine the function of the behavior (4) medical issuesparticularly health problems that might influence the behavior(5) mental health concerns including clinical diagnoses anddescriptions of clinical or behavioral manifestations associatedwith each diagnosis and (6) recommended treatmentinterventionthat develop new skills and appropriate replacement behaviorsthat adequately substitute for the maladaptive behavior

Without a thorough assessment of the function of theresidentrsquos maladaptive behavior including clearly identifiedappropriate replacement behaviors behavior programs will not besuccessful in modifying the maladaptive behavior As a result of LSSrsquos incomplete assessments numerous residents with behavioraldifficulties and other residents in their proximity haveremained at risk of harm due to ongoing behavior problems thatare not treated effectively

- 21 -

b Behavior Program Implementation

Improper implementation of a behavior program can lead tothe inadvertent reinforcement of maladaptive behaviors as wellexcessive use of restrictive treatments Throughout LSS weobserved numerous incidents of inadequate implementation ofbehavioral support programs

Consistent and correct implementation of appropriatebehavior programs is essential However as stated above thewritten programs themselves are deficient and the inconsistentimplementation of these inadequate programs only magnifies theseinadequacies resulting in a level of care that is grosslyinconsistent with generally accepted professional standards ofcare This poor implementation of programming places LSSrsquosresidents with behavior problems at risk of continued harmcontinued exposure to restrictive interventions and continuedinstitutionalization Many of the problems stem from inadequatecompetency-based training of staff regarding the properimplementation of behavior programs

c Monitoring and Evaluation

Generally accepted professional standards of care requirethat facilities monitor residents who have behavior programs toassess the residentsrsquo progress and the programrsquos efficacyWithout the necessary monitoring and evaluation residents are indanger of being subjected to inadequate and unnecessarilyrestrictive treatment as well as avoidable injuries related tountreated behaviors In this regard the injury data discussedabove particularly regarding human bites provides strongevidence that plans are ineffective

None of the behavior programs we reviewed specified theprocedure used to monitor the resident or supervise staffimplementation of the program and none of the programs providedfor measuring changes in replacement behaviors Further thesafeguard of professional review and monitoring of behaviorsupport services at LSS is woefully inadequate Contrary togenerally accepted professional standards of care there is noprofessional review prior to implementation of BSPs byindividuals with expertise in applied behavior analysis and inthe development and implementation of behavior supports We found no documentation evidencing a review of BSPs forappropriate content completion and protection of individualrights including restraint reduction plans and informed consentfor any restrictive practices which again is contrary togenerally accepted standards of care

- 22 -

The Behavior Support Review Committee (ldquoBSRCrdquo) review forQN diagnosed with Alzheimerrsquos was limited to a review of herpsychotropic medications and a statement that her problembehavior of aggression would be included in her BSP There was no evidence of a review of the BSP itself including whether itprovided for monitoring of the behaviors which the psychotropicmedication was intended to address (ldquotarget behaviorsrdquo) noconsideration of assessment results nor consideration of thehypothesized function of the problem behavior There was also no discussion of the BSPrsquos failure to identify any support for theAlzheimerrsquos diagnosis

d Quality Assurance

There is no ongoing facility-wide tracking of criticalaspects of psychological services at LSS such as the use ofrestraints the use of emergency procedures the development andupdate of functional assessments and staff implementation ofprograms There is no systemic tracking and analysis of the typeof restrictive components contained in BSPs In fact no oneknew basic information such as the number of BSPs that had restrictive components

Additionally all of the BSPs we reviewed failed to provideprecise strategies for measuring the effectiveness of the planThe outcomes currently used by LSS to measure effectiveness arenot indicators of a positive quality of life Instead there isa reliance on the frequency of problem behaviors Although theBSPs all mention collecting data regarding the occurrence ofproblem behaviors no plan addresses the methods used to ensurepromotion of positive replacement behaviors and we found nonethat monitors the individualrsquos use of such behaviors

There is also no systemic review of data reliability at LSSSimilarly the accuracy of behavior data is suspect In this regard problem behaviors are often too poorly defined to bemonitored accurately For example five different behaviorscould be described as ldquoaggressionrdquo and data are recorded asldquoaggressionrdquo when any of the five behaviors is exhibited Cf 42 CFR sect 483440(e)(1) (ldquoData relative to accomplishment of thecriteria specified in client individual program plan objectivesmust be documented in measurable termsrdquo) Consequently thecollected data are not clinically useful

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 10 -

QX was a 36-year-old male with a history from the late1980srsquo of many aspiration pneumonias QX was fed by tube andtook nothing by mouth We could find no indication in his medical record that his vital signs oxygen saturations lungsounds or respiratory rates were regularly monitored anddocumented Notwithstanding QXrsquos history of aspirationpneumonia LSS had no interventions in place to regularly monitorand document his health status On [date redacted in publicdocument] 2005 he was noted to have labored breathing with ralesin both lobes He was noted to be moaning and his oxygensaturation dropped to 8810 He was first transferred to the facilityrsquos infirmary and later to the community medical centerwhere he died of recurrent aspiration pneumonia on [date redactedin public document] 2005 His record strongly suggests anabsence of appropriate care regarding the conditions that led tohis death

d Physical and Occupational Therapies

LSS residents are not receiving adequate physical therapy(ldquoPTrdquo) and occupational therapy (ldquoOTrdquo) services to meet theirneeds Our review of resident charts and observations made during visits to cottages mealtime settings and programs formthe basis of our finding that significant numbers of individualshave serious unmet needs in these areas There are few PT or OT therapists on staff to serve the 344 residents and the existingtherapists do not monitor the quality or consistency of PT or OTprogram implementation by direct care staff PT and OT assessments fail to consider or describe critical variables that assessments should address If an individual has a new need LSShas no system in place to inform the therapists or to trigger aPT or OT assessment or intervention Particularly concerning isLSSrsquos practice of having ambulatory individuals sit in awheelchair ostensibly to prevent falls and to facilitatetransport This is not an accepted practice and leads toregression of ambulation skills

e General Clinical Care

Medical services at LSS are provided by the full timeMedical Director and two full time physicians supplemented byspecialty clinicians in the fields of neurology dermatologypodiatry urology and ENT (Ear Nose and Throat) Chart reviews interviews and observations indicate that once anacute change in health status is identified LSS medical staff

10 Oxygen saturation levels near 100 are normal

- 11 -

provide timely interventions and appropriate documentation aboutthe individual Nevertheless certain critical components of asystemic health care plan are not in evidence at LSS there is no medical peer review system ie no medical qualityimprovement system to assess data on medical services and nosystem to identify medical trends and outcomes These deficiencies prevent the facility from identifying issues afterthe fact and correcting underlying causes to prevent futurerecurrence

For example we noted that several patients receivedldquostatrdquo11 doses of pain medication but were not subsequentlyanalyzed either as to the effect of the pain medication or thepossible masking of an underlying medical condition This is particularly problematic given that most of LSSrsquos residents havesignificant communication deficits and cannot easily reporthealth problems Further there is no formal interdisciplinaryprocess to identify individuals who are at high risk for medicalconcerns Without the establishment of such systems to assessand monitor individualsrsquo health status and to analyze healthcareat LSS facility health providers are compelled to react tosignificant but foreseeable health problems that could beavoided or mitigated Consequently they are unable toadequately serve the health care needs of LSSrsquos residents

f Neurology Services

LSS provides adequate services to address the needs ofindividuals with neurological disorders Such individuals are regularly seen and many of them have fairly well-controlledseizure-related conditions We note that required blood levelsare routinely obtained and recorded in neurology notes

g Pharmacy Services

LSSrsquos pharmacy services are adequate regarding packaginglabeling and disposition of all medications However there aresignificant deficiencies in the pharmacy reviews necessary toalert the medical staff to issues involving drug interactionsand follow-up laboratory or medical tests Specifically nomeaningful information is provided by the pharmacist on QuarterlyDrug Regimen Reviews (ldquoQDRRrdquo) In our review of over 300 QDRRs

11 Stat is a medical term meaning ldquoimmediatelyrdquo oftenas an emergency and is derived from the Latin word ldquostatimrdquowhich also means ldquoimmediatelyrdquo

- 12 -

prepared between March and May 2005 we found no mention of anyproblems regarding residentsrsquo medication ndash a finding unsupportedby data in other LSS records For example the QDRRs did notidentify lab results identifying abnormal or sub-therapeuticvalues even though such results were noted in resident chartsThe medication reviews provided by the pharmacy are inadequateand place residents at risk of harm Although these duties arestandard responsibilities of pharmacists in ICFMR facilitieslike LSS the LSS pharmacy does not routinely address theseneeds

h Dental Services

In contravention of generally accepted professionalstandards of care resident medical charts lack a comprehensivedental assessment by which to determine whether appropriatedental services are provided to residents We were told duringour visit that dental x-rays are done on some residents but noton others an approach that appears arbitrary Also asdiscussed more extensively at section IA2d below thecontinuing use of sedating medications for dental proceduresespecially in view of the absence of any de-sensitizationprogram is problematic Additionally there are no records keptat LSS regarding the use of restraints or manual holds duringdental procedures Nevertheless it is important to note that wefound an adequate response by dental practitioners whenindividuals complained of tooth pain records confirm that thosepersons were seen either on the day of the complaint or the nextday

2 Psychiatric Services

LSS does not provide adequate psychiatric services toresidents with mental illness This finding is a serious concernbecause of the number of residents currently identified asneeding psychiatric services (approximately 200 individuals) andthe reported trend at LSS to admit increasing numbers of personswith mental health issues We found evidence that the deficiencies in psychiatric services at LSS extend across severalcomponents critical to providing adequate care includingpsychiatric assessments psychiatric diagnoses medicationmanagement use of ldquopre-medicationsrdquo individual and grouptherapy and collaboration between psychiatry and neurology

a Psychiatric Assessments

Minimum professional standards of care call for a carefulprocess of collecting and assessing relevant information to

- 13 -

determine an appropriate psychiatric diagnosis However none ofthe 31 psychiatric assessments we reviewed contained thenecessary components of a standard psychiatric assessment Chart review confirmed that LSSrsquos psychiatrists do not adequatelyconsider individuals medical issues physical injuries familyand psychiatric history and comprehensive medication regime whenattempting to determine the correct psychiatric diagnosisBecause professional staff does not fully consider criticalfactors such as these the resulting assessment is incomplete andpossibly inaccurate

b Psychiatric Diagnoses

Our review evidenced that many LSS residents have beenidentified as having psychiatric disorders based on vaguediagnoses that do not comport with professional standards and donot appropriately inform treatment decisions In fact in 26 of31 records reviewed it was not possible to discern thepsychiatric diagnosis for the mental condition being treatedSimilarly the charts of DT NN and EC listed Axis I12

psychiatric diagnoses that were not acceptable under theDiagnostic and Statistical Manual of Mental Disorders (ldquoDSMrdquo)the accepted standard for psychiatric diagnostic criteriaSeparately LSSrsquos psychiatric records demonstrate a consistentlack of clinical documentation to justify the mental healthdiagnoses that are provided

A number of interrelated factors contribute to the facilityrsquos problems in developing adequate psychiatric diagnosesFirst the one full-time psychiatrist at LSS has a caseload of180 residents With this caseload the psychiatrist must dependheavily upon information provided by direct care staff todiagnose his patients However direct care staff lack adequatetraining in basic mental health issues including what symptomsand side effects to monitor and how to monitor them In this regard the psychiatrist does not routinely inform theindividualrsquos interdisciplinary team (ldquoIDTrdquo)13 of the clinical

12 ldquoAxis Irdquo mental health diagnoses are those identifiedby the Diagnostic and Statistical Manual of Mental Disorders in abroad class of ldquoclinical disordersrdquo such as deliriumschizophrenia and other psychotic disorders mood and anxietydisorders and sleep disorders

13 The IDT is composed of the facility staff membersassigned from each discipline such as occupational therapy

(continued)

- 14 -

justification for mental health diagnoses As a result themembers of the IDT do not know what symptoms to track to provideobjective data on treatment efficacy

Diagnoses drive treatment interventions includingmedication choices The absence of sound diagnoses exposes LSSrsquosresidents to counterproductive even harmful interventions andto interventions that mask but do not correct underlyingdisorders LSSrsquos failure to provide clinically justifiedpsychiatric diagnoses constitutes a substantial departure fromgenerally accepted professional standards of care that exposesits residents to harm

c Medication Management

To assess individuals mental health status and the effectiveness of their treatment facilities like LSS typicallyutilize professional treatment review teams The LSS Psychotropic Review Clinic has functional flaws it emphasizes adiscipline-specific approach is fragmented and omits the viewsof the individuals IDT Although the psychiatrist appears to beseeing residents on rounds (and making medication adjustments atthat time) there do not appear to be any established criteria inplace that would trigger psychotropic reviews when necessarySeparately treatment choices frequently do not appear to besubstantiated by the assigned diagnosis For example SEreceived antipsychotic medication to treat a movement disorderinvolving self-injurious behavior There was no documentation in his record to justify clinically this choice of treatment

Also we could not find evidence of appropriate oversight ofmedication usage by LSSrsquos residents including consideration ofpotentially more appropriate medications For example there wasno documentation to indicate that SE was seen in the Psychotropic Review Clinic to review the stabilization of hisglucose level after a medication change or to consider use ofanother medication as had been recommended in his psychiatricconsultation Nor was there any indication that the IDT haddiscussed his case LSSs failure to provide regular medicationfollow-up based on residents needs is a substantial deviation

13(continued)direct care and nursing providing supports and services to theindividual The members of the IDT are responsible for workingin collaboration to ensure that the individualrsquos care needs are met and typically are the staff members at the facility who aremost familiar with the individual

- 15 -

from accepted professional standards of safe medication practicesand places the residents at significant risk of harm

d ldquoPre-Medicationsrdquo

LSS utilizes pre-medications (sedatives administered toindividuals prior to medical or dental procedures) to controlresidents Although pre-medications are sometimes necessary atleast on a short-term basis LSSrsquos use of pre-medications isproblematic Most significantly the facility does notsystematically monitor the use of such medicationsConsequently it cannot reliably track the efficacy of themedications on particular individuals the frequency with whichindividuals are medicated with these drugs and the consequentialside effects including interactions with other medicationsfalls injuries and reduced cognition In this regardpsychiatrists are not consistently informed when their patientsreceive pre-medications although pre-medications can skew theresults of a mental status examination and cause behavioral problems Separately and more fundamentally we did not seeevidence that de-sensitization programs were in place at LSS tohelp diffuse individuals fear of procedures and eventuallyreduce the need for pre-medication LSSrsquos pre-medicationpractices constitute a substantial departure from generallyaccepted professional standards of care that expose individualsto harm

e Individual and Group Therapy

Accepted standards of psychiatric practice require thatpersons with mental illness are assessed to determine their needfor treatment There is no system at LSS to ensure thatindividuals are assessed evaluated and referred for individualor group therapy Chart reviews at LSS indicated that only threeindividuals of the 200 identified with mental illness receive therapy Individuals with a clear need for psychotherapy at LSSwere not referred for treatment These included persons who haveexperienced abusive and traumatic events Failure to providenecessary treatment places LSSrsquos residents at risk of substantialharm

f Collaboration between Psychiatry andNeurology

LSS lacks a formal system for collaboration betweenpsychiatry and neurology staff on safe medication practices forindividuals with co-occurring seizure and mental healthdisorders This is a substantial deviation from accepted

- 16 -

standards of care and places individuals at risk of harmSpecifically the side effects of medications in both areas canhave a far-reaching impact on the individualrsquos health andbehavior Without a system in place to exchange informationbetween these two disciplines treatment altered by one specialtycould destabilize treatment from the other specialty

B Protection from Harm

LSS fails to provide basic oversight of resident care andtreatment critical to ensuring the reasonable safety of itsresidents As described in more detail below LSSrsquos failure toprotect residents from harm stems from inadequate supervisionthe failure to appropriately detect and prevent abuse andneglect and an inadequate incident management systemConsequently residents are exposed to significant harm

1 Inadequate Supervision and Neglect

Our review of facility incident reports and investigationsconfirmed that residents are being subjected to a wide-spreadpattern of harm due to inadequate supervision neglect andpossible abuse The circumstances surrounding the death ofNLU (described in more detail at section IA1 above) inwhich staff failed to call for immediate medical attentionfailed to assist with basic first aid and falsified recordsevidence significant neglect Other examples we identifiedinclude

bull On May 5 2005 a staff person who was assigned one-to-one supervision to ES failed to notice that ES hadfastened a belt around his neck According to LSSrsquosrecords this occurred when the lights were off inESrsquos room two televisions were on and the staffperson was using her personal cell phone

bull On May 9 2005 CS was discovered to have twodecubitus ulcers on her buttocks and another on her shoulder These sores according to LSSrsquos own recordswere a result of workers not changing CSrsquos positionand leaving her lying in urine-soaked diapers

bull NP has PICA (an eating disorder involving themouthing or ingestion of non-food substances)Notwithstanding the identified need to protect NPfrom ingesting nonedible items facility recordsindicate that NP repeatedly has been discoveredchewing or eating harmful objects For example on

- 17 -

April 18 2004 staff discovered NP chewing on apiece of gel cushion on September 28 2004 during aldquodiaper checkrdquo staff discovered a glove coming out ofNPrsquos rectum and on October 25 2004 a ldquoforeignbodyrdquo was discovered in NP during an x-ray

bull On February 18 2004 MK had an x-ray to determine ifhe had a high fecal impaction The x-ray confirmed theimpaction and also revealed that MK had ingested abutton Examination of his clothing revealed severalbuttons were missing from his shirts LSS had removed clothing with buttons from MKrsquos wardrobe but did notaddress the adequacy of his supervision

bull On either June 6 2005 or June 7 2005 QD was foundwith a 15 cut to his face and two black eyes No one reportedly witnessed the cause of the injuries The LSS investigation included a report stating that otherindividuals in the same home had had bruises or injuries during the same approximate time period butincidents that may have caused bruising and injurieshad never been seen Individuals sustaining injurieswere unable to explain what happened Multiple staffmembers including direct care staff and managementstaff stated to us during our visit that ldquomostrdquo of theapproximately 23 residents in the home were intimidatedor frightened by a particular male staff memberassigned to this home on the 200 pm - 1000 pmshift This staff person reportedly has beeninvestigated in the past for similar incidents and wasalways working within the time frame of the reportedinjuries We did not see evidence that LSS took action in response to these residentsrsquo concerns or the patternof injuries and staff assignments

As of the time of our visit 66 of the population at LSShas been injured by another resident badly enough to require morethan first aid Almost 50 of the population was injured byanother peer at least one time from April 2004 to April 2005Individuals at LSS continue to be at risk of resident-to-resident injuries including human bites and fractures Seventy-threeresidents (21 of the LSS population) have been injured fromtheir peersrsquo bites and 41 of these residents (56) requiredmedical attention as a result

Even in instances where known behavioral risks have been communicated staff were unable to respond adequately This is particularly evident in cases of residents causing injuries to

- 18 -

other residents For example UKT was bitten by otherresidents 26 times between May 2003 and May 2005 One resident was responsible for 16 of those bites while another residentcaused five bites As a result of these bites UKT requiredmedical care to her face wrist forearm upper arm shoulder andback

2 Inadequate Incident Management

Generally accepted professional standards of care requirethat facilities gather and assess incident data to identifypotentially problematic trends and to identify implement andmonitor implementation of corrective action Proper incidentinvestigations are also a federal regulatory requirement See 42 CFR sect 483420(d)(2)-(4) (requiring that incidents beinvestigated and appropriate action taken)

LSS does not have an effective incident management andquality improvement system For instance LSS does not audit toconfirm that significant resident injuries are reported forinvestigation Many abuse and neglect investigation files thatwe reviewed indicated that staff had knowledge of an incident butfailed to report it Further staff were not corrected forfailing to report A few examples of staffrsquos failure to reportabuse and neglect include

bull On February 7 2005 SH ingested an orange neonrubber string while on one-to-one supervision No incident report was ever filed nor was aninvestigation opened regarding the staffrsquos failure tosupervise SH properly

bull On August 5 2004 EE ingested stickers while she wassupervised by one-to-one staff Following thisincident staff also failed to file any written reportor investigate neglect

bull On June 15 2004 another LSS resident EN ingesteda nickel while on one-to-one supervision Like the other residents mentioned above there was no report ofthis incident or investigation of neglect

These examples indicate that LSS is experiencing significantunder reporting of incidents Failure by staff to report abuseand neglect places residents at significant risk of immediate andfuture harm

- 19 -

C BEHAVIOR PROGRAMS RESTRAINTS AND HABILITATION

LSSrsquos residents are entitled to ldquothe minimally adequatetraining required by the Constitution as may be reasonablein light of [the residentsrsquo] liberty interests in safety andfreedom from unreasonable restraintsrdquo Youngberg 457 US at322 LSS fails to provide adequate psychological services tomeet the needs of residents with behavior problemsSpecifically LSS (1) provides residents with ineffectivebehavioral programs (2) exposes residents to undue restraintsand (3) provides inadequate habilitation treatment and activityprograms

Generally accepted professional practice requires thatappropriate psychological interventions such as behaviorprograms andor habilitation plans14 be used to address significant behavior problems However many LSS residents whorequire psychological interventions are simply not provided themAs described in more detail below LSSrsquos deficiencies in thisarea substantially hinder treatment of residentsrsquo problembehaviors exposing residents to a significantly increased riskof abuse and compromising residentsrsquo opportunities for placementin a more integrated setting The examples of injurious behaviorset forth above in addition to demonstrating inadequatesupervision and neglect also demonstrate significant weaknessesin LSSrsquos behavioral programming

1 Behavior Programs

Generally accepted professional standards of practiceprovide that behavior programs (1) be based on adequatefunctional assessments (2) be implemented as written and (3) bemonitored and evaluated adequately Ineffective behavior programs increase the likelihood that residents engage in harmfuland inappropriate (rdquomaladaptiverdquo) behaviors subjecting them tounnecessarily restrictive interventions and treatments LSSrsquos behavior programs are ineffective and substantially depart fromgenerally accepted professional standards In particular theyare not based on adequate functional assessments not implementedas written and are not monitored evaluated and revisedadequately

14 Habilitation includes but is not limited toindividualized training education and skill acquisitionprograms developed and implemented by interdisciplinary teams topromote the growth development and independence of individuals

- 20 -

For example HH has been diagnosed with PICA Her psychologist reports that on October 8 2004 she tore open thearmrest of a recliner and attempted to eat the stuffing She also has chewed on the edge of a dining room table a bed sheetand a piece of diaper According to the psychologist testingHH boredom was the underlying cause which indicates that HHdoes not receive adequate habilitation and training HH has a behavior support plan (ldquoBSPrdquo) to address these issues but ratherthan modify the BSP or ensure that it was properly implementedto address her boredom HH was prescribed Zyprexa an atypicalantipsychotic medication and the antidepressant Paxil

a Functional Assessment

Generally accepted professional standards of care for thispopulation dictate that there is an adequate and currentfunctional assessment in all cases prior to the initiation ofpsychological treatment A functional assessment is a professional assessment technique that identifies the particularpositive or negative factors that prompt or maintain achallenging behavior for a given individual By understandingthe causes or ldquofunctionrdquo of challenging behaviorsprofessionals can attempt to reduce or eliminate these factorsrsquoinfluence and thus reduce or eliminate the challengingbehaviors Without such informed understanding of the cause ofbehaviors attempted treatments are arbitrary and ineffective

The functional assessments developed by LSSrsquos psychologystaff are seriously deficient They are somewhat arbitrary andfail to address highly relevant information such as (1) aresidentrsquos background including social history and treatmentexperiences (2) summary behavior data (3) assessment tools usedto determine the function of the behavior (4) medical issuesparticularly health problems that might influence the behavior(5) mental health concerns including clinical diagnoses anddescriptions of clinical or behavioral manifestations associatedwith each diagnosis and (6) recommended treatmentinterventionthat develop new skills and appropriate replacement behaviorsthat adequately substitute for the maladaptive behavior

Without a thorough assessment of the function of theresidentrsquos maladaptive behavior including clearly identifiedappropriate replacement behaviors behavior programs will not besuccessful in modifying the maladaptive behavior As a result of LSSrsquos incomplete assessments numerous residents with behavioraldifficulties and other residents in their proximity haveremained at risk of harm due to ongoing behavior problems thatare not treated effectively

- 21 -

b Behavior Program Implementation

Improper implementation of a behavior program can lead tothe inadvertent reinforcement of maladaptive behaviors as wellexcessive use of restrictive treatments Throughout LSS weobserved numerous incidents of inadequate implementation ofbehavioral support programs

Consistent and correct implementation of appropriatebehavior programs is essential However as stated above thewritten programs themselves are deficient and the inconsistentimplementation of these inadequate programs only magnifies theseinadequacies resulting in a level of care that is grosslyinconsistent with generally accepted professional standards ofcare This poor implementation of programming places LSSrsquosresidents with behavior problems at risk of continued harmcontinued exposure to restrictive interventions and continuedinstitutionalization Many of the problems stem from inadequatecompetency-based training of staff regarding the properimplementation of behavior programs

c Monitoring and Evaluation

Generally accepted professional standards of care requirethat facilities monitor residents who have behavior programs toassess the residentsrsquo progress and the programrsquos efficacyWithout the necessary monitoring and evaluation residents are indanger of being subjected to inadequate and unnecessarilyrestrictive treatment as well as avoidable injuries related tountreated behaviors In this regard the injury data discussedabove particularly regarding human bites provides strongevidence that plans are ineffective

None of the behavior programs we reviewed specified theprocedure used to monitor the resident or supervise staffimplementation of the program and none of the programs providedfor measuring changes in replacement behaviors Further thesafeguard of professional review and monitoring of behaviorsupport services at LSS is woefully inadequate Contrary togenerally accepted professional standards of care there is noprofessional review prior to implementation of BSPs byindividuals with expertise in applied behavior analysis and inthe development and implementation of behavior supports We found no documentation evidencing a review of BSPs forappropriate content completion and protection of individualrights including restraint reduction plans and informed consentfor any restrictive practices which again is contrary togenerally accepted standards of care

- 22 -

The Behavior Support Review Committee (ldquoBSRCrdquo) review forQN diagnosed with Alzheimerrsquos was limited to a review of herpsychotropic medications and a statement that her problembehavior of aggression would be included in her BSP There was no evidence of a review of the BSP itself including whether itprovided for monitoring of the behaviors which the psychotropicmedication was intended to address (ldquotarget behaviorsrdquo) noconsideration of assessment results nor consideration of thehypothesized function of the problem behavior There was also no discussion of the BSPrsquos failure to identify any support for theAlzheimerrsquos diagnosis

d Quality Assurance

There is no ongoing facility-wide tracking of criticalaspects of psychological services at LSS such as the use ofrestraints the use of emergency procedures the development andupdate of functional assessments and staff implementation ofprograms There is no systemic tracking and analysis of the typeof restrictive components contained in BSPs In fact no oneknew basic information such as the number of BSPs that had restrictive components

Additionally all of the BSPs we reviewed failed to provideprecise strategies for measuring the effectiveness of the planThe outcomes currently used by LSS to measure effectiveness arenot indicators of a positive quality of life Instead there isa reliance on the frequency of problem behaviors Although theBSPs all mention collecting data regarding the occurrence ofproblem behaviors no plan addresses the methods used to ensurepromotion of positive replacement behaviors and we found nonethat monitors the individualrsquos use of such behaviors

There is also no systemic review of data reliability at LSSSimilarly the accuracy of behavior data is suspect In this regard problem behaviors are often too poorly defined to bemonitored accurately For example five different behaviorscould be described as ldquoaggressionrdquo and data are recorded asldquoaggressionrdquo when any of the five behaviors is exhibited Cf 42 CFR sect 483440(e)(1) (ldquoData relative to accomplishment of thecriteria specified in client individual program plan objectivesmust be documented in measurable termsrdquo) Consequently thecollected data are not clinically useful

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 11 -

provide timely interventions and appropriate documentation aboutthe individual Nevertheless certain critical components of asystemic health care plan are not in evidence at LSS there is no medical peer review system ie no medical qualityimprovement system to assess data on medical services and nosystem to identify medical trends and outcomes These deficiencies prevent the facility from identifying issues afterthe fact and correcting underlying causes to prevent futurerecurrence

For example we noted that several patients receivedldquostatrdquo11 doses of pain medication but were not subsequentlyanalyzed either as to the effect of the pain medication or thepossible masking of an underlying medical condition This is particularly problematic given that most of LSSrsquos residents havesignificant communication deficits and cannot easily reporthealth problems Further there is no formal interdisciplinaryprocess to identify individuals who are at high risk for medicalconcerns Without the establishment of such systems to assessand monitor individualsrsquo health status and to analyze healthcareat LSS facility health providers are compelled to react tosignificant but foreseeable health problems that could beavoided or mitigated Consequently they are unable toadequately serve the health care needs of LSSrsquos residents

f Neurology Services

LSS provides adequate services to address the needs ofindividuals with neurological disorders Such individuals are regularly seen and many of them have fairly well-controlledseizure-related conditions We note that required blood levelsare routinely obtained and recorded in neurology notes

g Pharmacy Services

LSSrsquos pharmacy services are adequate regarding packaginglabeling and disposition of all medications However there aresignificant deficiencies in the pharmacy reviews necessary toalert the medical staff to issues involving drug interactionsand follow-up laboratory or medical tests Specifically nomeaningful information is provided by the pharmacist on QuarterlyDrug Regimen Reviews (ldquoQDRRrdquo) In our review of over 300 QDRRs

11 Stat is a medical term meaning ldquoimmediatelyrdquo oftenas an emergency and is derived from the Latin word ldquostatimrdquowhich also means ldquoimmediatelyrdquo

- 12 -

prepared between March and May 2005 we found no mention of anyproblems regarding residentsrsquo medication ndash a finding unsupportedby data in other LSS records For example the QDRRs did notidentify lab results identifying abnormal or sub-therapeuticvalues even though such results were noted in resident chartsThe medication reviews provided by the pharmacy are inadequateand place residents at risk of harm Although these duties arestandard responsibilities of pharmacists in ICFMR facilitieslike LSS the LSS pharmacy does not routinely address theseneeds

h Dental Services

In contravention of generally accepted professionalstandards of care resident medical charts lack a comprehensivedental assessment by which to determine whether appropriatedental services are provided to residents We were told duringour visit that dental x-rays are done on some residents but noton others an approach that appears arbitrary Also asdiscussed more extensively at section IA2d below thecontinuing use of sedating medications for dental proceduresespecially in view of the absence of any de-sensitizationprogram is problematic Additionally there are no records keptat LSS regarding the use of restraints or manual holds duringdental procedures Nevertheless it is important to note that wefound an adequate response by dental practitioners whenindividuals complained of tooth pain records confirm that thosepersons were seen either on the day of the complaint or the nextday

2 Psychiatric Services

LSS does not provide adequate psychiatric services toresidents with mental illness This finding is a serious concernbecause of the number of residents currently identified asneeding psychiatric services (approximately 200 individuals) andthe reported trend at LSS to admit increasing numbers of personswith mental health issues We found evidence that the deficiencies in psychiatric services at LSS extend across severalcomponents critical to providing adequate care includingpsychiatric assessments psychiatric diagnoses medicationmanagement use of ldquopre-medicationsrdquo individual and grouptherapy and collaboration between psychiatry and neurology

a Psychiatric Assessments

Minimum professional standards of care call for a carefulprocess of collecting and assessing relevant information to

- 13 -

determine an appropriate psychiatric diagnosis However none ofthe 31 psychiatric assessments we reviewed contained thenecessary components of a standard psychiatric assessment Chart review confirmed that LSSrsquos psychiatrists do not adequatelyconsider individuals medical issues physical injuries familyand psychiatric history and comprehensive medication regime whenattempting to determine the correct psychiatric diagnosisBecause professional staff does not fully consider criticalfactors such as these the resulting assessment is incomplete andpossibly inaccurate

b Psychiatric Diagnoses

Our review evidenced that many LSS residents have beenidentified as having psychiatric disorders based on vaguediagnoses that do not comport with professional standards and donot appropriately inform treatment decisions In fact in 26 of31 records reviewed it was not possible to discern thepsychiatric diagnosis for the mental condition being treatedSimilarly the charts of DT NN and EC listed Axis I12

psychiatric diagnoses that were not acceptable under theDiagnostic and Statistical Manual of Mental Disorders (ldquoDSMrdquo)the accepted standard for psychiatric diagnostic criteriaSeparately LSSrsquos psychiatric records demonstrate a consistentlack of clinical documentation to justify the mental healthdiagnoses that are provided

A number of interrelated factors contribute to the facilityrsquos problems in developing adequate psychiatric diagnosesFirst the one full-time psychiatrist at LSS has a caseload of180 residents With this caseload the psychiatrist must dependheavily upon information provided by direct care staff todiagnose his patients However direct care staff lack adequatetraining in basic mental health issues including what symptomsand side effects to monitor and how to monitor them In this regard the psychiatrist does not routinely inform theindividualrsquos interdisciplinary team (ldquoIDTrdquo)13 of the clinical

12 ldquoAxis Irdquo mental health diagnoses are those identifiedby the Diagnostic and Statistical Manual of Mental Disorders in abroad class of ldquoclinical disordersrdquo such as deliriumschizophrenia and other psychotic disorders mood and anxietydisorders and sleep disorders

13 The IDT is composed of the facility staff membersassigned from each discipline such as occupational therapy

(continued)

- 14 -

justification for mental health diagnoses As a result themembers of the IDT do not know what symptoms to track to provideobjective data on treatment efficacy

Diagnoses drive treatment interventions includingmedication choices The absence of sound diagnoses exposes LSSrsquosresidents to counterproductive even harmful interventions andto interventions that mask but do not correct underlyingdisorders LSSrsquos failure to provide clinically justifiedpsychiatric diagnoses constitutes a substantial departure fromgenerally accepted professional standards of care that exposesits residents to harm

c Medication Management

To assess individuals mental health status and the effectiveness of their treatment facilities like LSS typicallyutilize professional treatment review teams The LSS Psychotropic Review Clinic has functional flaws it emphasizes adiscipline-specific approach is fragmented and omits the viewsof the individuals IDT Although the psychiatrist appears to beseeing residents on rounds (and making medication adjustments atthat time) there do not appear to be any established criteria inplace that would trigger psychotropic reviews when necessarySeparately treatment choices frequently do not appear to besubstantiated by the assigned diagnosis For example SEreceived antipsychotic medication to treat a movement disorderinvolving self-injurious behavior There was no documentation in his record to justify clinically this choice of treatment

Also we could not find evidence of appropriate oversight ofmedication usage by LSSrsquos residents including consideration ofpotentially more appropriate medications For example there wasno documentation to indicate that SE was seen in the Psychotropic Review Clinic to review the stabilization of hisglucose level after a medication change or to consider use ofanother medication as had been recommended in his psychiatricconsultation Nor was there any indication that the IDT haddiscussed his case LSSs failure to provide regular medicationfollow-up based on residents needs is a substantial deviation

13(continued)direct care and nursing providing supports and services to theindividual The members of the IDT are responsible for workingin collaboration to ensure that the individualrsquos care needs are met and typically are the staff members at the facility who aremost familiar with the individual

- 15 -

from accepted professional standards of safe medication practicesand places the residents at significant risk of harm

d ldquoPre-Medicationsrdquo

LSS utilizes pre-medications (sedatives administered toindividuals prior to medical or dental procedures) to controlresidents Although pre-medications are sometimes necessary atleast on a short-term basis LSSrsquos use of pre-medications isproblematic Most significantly the facility does notsystematically monitor the use of such medicationsConsequently it cannot reliably track the efficacy of themedications on particular individuals the frequency with whichindividuals are medicated with these drugs and the consequentialside effects including interactions with other medicationsfalls injuries and reduced cognition In this regardpsychiatrists are not consistently informed when their patientsreceive pre-medications although pre-medications can skew theresults of a mental status examination and cause behavioral problems Separately and more fundamentally we did not seeevidence that de-sensitization programs were in place at LSS tohelp diffuse individuals fear of procedures and eventuallyreduce the need for pre-medication LSSrsquos pre-medicationpractices constitute a substantial departure from generallyaccepted professional standards of care that expose individualsto harm

e Individual and Group Therapy

Accepted standards of psychiatric practice require thatpersons with mental illness are assessed to determine their needfor treatment There is no system at LSS to ensure thatindividuals are assessed evaluated and referred for individualor group therapy Chart reviews at LSS indicated that only threeindividuals of the 200 identified with mental illness receive therapy Individuals with a clear need for psychotherapy at LSSwere not referred for treatment These included persons who haveexperienced abusive and traumatic events Failure to providenecessary treatment places LSSrsquos residents at risk of substantialharm

f Collaboration between Psychiatry andNeurology

LSS lacks a formal system for collaboration betweenpsychiatry and neurology staff on safe medication practices forindividuals with co-occurring seizure and mental healthdisorders This is a substantial deviation from accepted

- 16 -

standards of care and places individuals at risk of harmSpecifically the side effects of medications in both areas canhave a far-reaching impact on the individualrsquos health andbehavior Without a system in place to exchange informationbetween these two disciplines treatment altered by one specialtycould destabilize treatment from the other specialty

B Protection from Harm

LSS fails to provide basic oversight of resident care andtreatment critical to ensuring the reasonable safety of itsresidents As described in more detail below LSSrsquos failure toprotect residents from harm stems from inadequate supervisionthe failure to appropriately detect and prevent abuse andneglect and an inadequate incident management systemConsequently residents are exposed to significant harm

1 Inadequate Supervision and Neglect

Our review of facility incident reports and investigationsconfirmed that residents are being subjected to a wide-spreadpattern of harm due to inadequate supervision neglect andpossible abuse The circumstances surrounding the death ofNLU (described in more detail at section IA1 above) inwhich staff failed to call for immediate medical attentionfailed to assist with basic first aid and falsified recordsevidence significant neglect Other examples we identifiedinclude

bull On May 5 2005 a staff person who was assigned one-to-one supervision to ES failed to notice that ES hadfastened a belt around his neck According to LSSrsquosrecords this occurred when the lights were off inESrsquos room two televisions were on and the staffperson was using her personal cell phone

bull On May 9 2005 CS was discovered to have twodecubitus ulcers on her buttocks and another on her shoulder These sores according to LSSrsquos own recordswere a result of workers not changing CSrsquos positionand leaving her lying in urine-soaked diapers

bull NP has PICA (an eating disorder involving themouthing or ingestion of non-food substances)Notwithstanding the identified need to protect NPfrom ingesting nonedible items facility recordsindicate that NP repeatedly has been discoveredchewing or eating harmful objects For example on

- 17 -

April 18 2004 staff discovered NP chewing on apiece of gel cushion on September 28 2004 during aldquodiaper checkrdquo staff discovered a glove coming out ofNPrsquos rectum and on October 25 2004 a ldquoforeignbodyrdquo was discovered in NP during an x-ray

bull On February 18 2004 MK had an x-ray to determine ifhe had a high fecal impaction The x-ray confirmed theimpaction and also revealed that MK had ingested abutton Examination of his clothing revealed severalbuttons were missing from his shirts LSS had removed clothing with buttons from MKrsquos wardrobe but did notaddress the adequacy of his supervision

bull On either June 6 2005 or June 7 2005 QD was foundwith a 15 cut to his face and two black eyes No one reportedly witnessed the cause of the injuries The LSS investigation included a report stating that otherindividuals in the same home had had bruises or injuries during the same approximate time period butincidents that may have caused bruising and injurieshad never been seen Individuals sustaining injurieswere unable to explain what happened Multiple staffmembers including direct care staff and managementstaff stated to us during our visit that ldquomostrdquo of theapproximately 23 residents in the home were intimidatedor frightened by a particular male staff memberassigned to this home on the 200 pm - 1000 pmshift This staff person reportedly has beeninvestigated in the past for similar incidents and wasalways working within the time frame of the reportedinjuries We did not see evidence that LSS took action in response to these residentsrsquo concerns or the patternof injuries and staff assignments

As of the time of our visit 66 of the population at LSShas been injured by another resident badly enough to require morethan first aid Almost 50 of the population was injured byanother peer at least one time from April 2004 to April 2005Individuals at LSS continue to be at risk of resident-to-resident injuries including human bites and fractures Seventy-threeresidents (21 of the LSS population) have been injured fromtheir peersrsquo bites and 41 of these residents (56) requiredmedical attention as a result

Even in instances where known behavioral risks have been communicated staff were unable to respond adequately This is particularly evident in cases of residents causing injuries to

- 18 -

other residents For example UKT was bitten by otherresidents 26 times between May 2003 and May 2005 One resident was responsible for 16 of those bites while another residentcaused five bites As a result of these bites UKT requiredmedical care to her face wrist forearm upper arm shoulder andback

2 Inadequate Incident Management

Generally accepted professional standards of care requirethat facilities gather and assess incident data to identifypotentially problematic trends and to identify implement andmonitor implementation of corrective action Proper incidentinvestigations are also a federal regulatory requirement See 42 CFR sect 483420(d)(2)-(4) (requiring that incidents beinvestigated and appropriate action taken)

LSS does not have an effective incident management andquality improvement system For instance LSS does not audit toconfirm that significant resident injuries are reported forinvestigation Many abuse and neglect investigation files thatwe reviewed indicated that staff had knowledge of an incident butfailed to report it Further staff were not corrected forfailing to report A few examples of staffrsquos failure to reportabuse and neglect include

bull On February 7 2005 SH ingested an orange neonrubber string while on one-to-one supervision No incident report was ever filed nor was aninvestigation opened regarding the staffrsquos failure tosupervise SH properly

bull On August 5 2004 EE ingested stickers while she wassupervised by one-to-one staff Following thisincident staff also failed to file any written reportor investigate neglect

bull On June 15 2004 another LSS resident EN ingesteda nickel while on one-to-one supervision Like the other residents mentioned above there was no report ofthis incident or investigation of neglect

These examples indicate that LSS is experiencing significantunder reporting of incidents Failure by staff to report abuseand neglect places residents at significant risk of immediate andfuture harm

- 19 -

C BEHAVIOR PROGRAMS RESTRAINTS AND HABILITATION

LSSrsquos residents are entitled to ldquothe minimally adequatetraining required by the Constitution as may be reasonablein light of [the residentsrsquo] liberty interests in safety andfreedom from unreasonable restraintsrdquo Youngberg 457 US at322 LSS fails to provide adequate psychological services tomeet the needs of residents with behavior problemsSpecifically LSS (1) provides residents with ineffectivebehavioral programs (2) exposes residents to undue restraintsand (3) provides inadequate habilitation treatment and activityprograms

Generally accepted professional practice requires thatappropriate psychological interventions such as behaviorprograms andor habilitation plans14 be used to address significant behavior problems However many LSS residents whorequire psychological interventions are simply not provided themAs described in more detail below LSSrsquos deficiencies in thisarea substantially hinder treatment of residentsrsquo problembehaviors exposing residents to a significantly increased riskof abuse and compromising residentsrsquo opportunities for placementin a more integrated setting The examples of injurious behaviorset forth above in addition to demonstrating inadequatesupervision and neglect also demonstrate significant weaknessesin LSSrsquos behavioral programming

1 Behavior Programs

Generally accepted professional standards of practiceprovide that behavior programs (1) be based on adequatefunctional assessments (2) be implemented as written and (3) bemonitored and evaluated adequately Ineffective behavior programs increase the likelihood that residents engage in harmfuland inappropriate (rdquomaladaptiverdquo) behaviors subjecting them tounnecessarily restrictive interventions and treatments LSSrsquos behavior programs are ineffective and substantially depart fromgenerally accepted professional standards In particular theyare not based on adequate functional assessments not implementedas written and are not monitored evaluated and revisedadequately

14 Habilitation includes but is not limited toindividualized training education and skill acquisitionprograms developed and implemented by interdisciplinary teams topromote the growth development and independence of individuals

- 20 -

For example HH has been diagnosed with PICA Her psychologist reports that on October 8 2004 she tore open thearmrest of a recliner and attempted to eat the stuffing She also has chewed on the edge of a dining room table a bed sheetand a piece of diaper According to the psychologist testingHH boredom was the underlying cause which indicates that HHdoes not receive adequate habilitation and training HH has a behavior support plan (ldquoBSPrdquo) to address these issues but ratherthan modify the BSP or ensure that it was properly implementedto address her boredom HH was prescribed Zyprexa an atypicalantipsychotic medication and the antidepressant Paxil

a Functional Assessment

Generally accepted professional standards of care for thispopulation dictate that there is an adequate and currentfunctional assessment in all cases prior to the initiation ofpsychological treatment A functional assessment is a professional assessment technique that identifies the particularpositive or negative factors that prompt or maintain achallenging behavior for a given individual By understandingthe causes or ldquofunctionrdquo of challenging behaviorsprofessionals can attempt to reduce or eliminate these factorsrsquoinfluence and thus reduce or eliminate the challengingbehaviors Without such informed understanding of the cause ofbehaviors attempted treatments are arbitrary and ineffective

The functional assessments developed by LSSrsquos psychologystaff are seriously deficient They are somewhat arbitrary andfail to address highly relevant information such as (1) aresidentrsquos background including social history and treatmentexperiences (2) summary behavior data (3) assessment tools usedto determine the function of the behavior (4) medical issuesparticularly health problems that might influence the behavior(5) mental health concerns including clinical diagnoses anddescriptions of clinical or behavioral manifestations associatedwith each diagnosis and (6) recommended treatmentinterventionthat develop new skills and appropriate replacement behaviorsthat adequately substitute for the maladaptive behavior

Without a thorough assessment of the function of theresidentrsquos maladaptive behavior including clearly identifiedappropriate replacement behaviors behavior programs will not besuccessful in modifying the maladaptive behavior As a result of LSSrsquos incomplete assessments numerous residents with behavioraldifficulties and other residents in their proximity haveremained at risk of harm due to ongoing behavior problems thatare not treated effectively

- 21 -

b Behavior Program Implementation

Improper implementation of a behavior program can lead tothe inadvertent reinforcement of maladaptive behaviors as wellexcessive use of restrictive treatments Throughout LSS weobserved numerous incidents of inadequate implementation ofbehavioral support programs

Consistent and correct implementation of appropriatebehavior programs is essential However as stated above thewritten programs themselves are deficient and the inconsistentimplementation of these inadequate programs only magnifies theseinadequacies resulting in a level of care that is grosslyinconsistent with generally accepted professional standards ofcare This poor implementation of programming places LSSrsquosresidents with behavior problems at risk of continued harmcontinued exposure to restrictive interventions and continuedinstitutionalization Many of the problems stem from inadequatecompetency-based training of staff regarding the properimplementation of behavior programs

c Monitoring and Evaluation

Generally accepted professional standards of care requirethat facilities monitor residents who have behavior programs toassess the residentsrsquo progress and the programrsquos efficacyWithout the necessary monitoring and evaluation residents are indanger of being subjected to inadequate and unnecessarilyrestrictive treatment as well as avoidable injuries related tountreated behaviors In this regard the injury data discussedabove particularly regarding human bites provides strongevidence that plans are ineffective

None of the behavior programs we reviewed specified theprocedure used to monitor the resident or supervise staffimplementation of the program and none of the programs providedfor measuring changes in replacement behaviors Further thesafeguard of professional review and monitoring of behaviorsupport services at LSS is woefully inadequate Contrary togenerally accepted professional standards of care there is noprofessional review prior to implementation of BSPs byindividuals with expertise in applied behavior analysis and inthe development and implementation of behavior supports We found no documentation evidencing a review of BSPs forappropriate content completion and protection of individualrights including restraint reduction plans and informed consentfor any restrictive practices which again is contrary togenerally accepted standards of care

- 22 -

The Behavior Support Review Committee (ldquoBSRCrdquo) review forQN diagnosed with Alzheimerrsquos was limited to a review of herpsychotropic medications and a statement that her problembehavior of aggression would be included in her BSP There was no evidence of a review of the BSP itself including whether itprovided for monitoring of the behaviors which the psychotropicmedication was intended to address (ldquotarget behaviorsrdquo) noconsideration of assessment results nor consideration of thehypothesized function of the problem behavior There was also no discussion of the BSPrsquos failure to identify any support for theAlzheimerrsquos diagnosis

d Quality Assurance

There is no ongoing facility-wide tracking of criticalaspects of psychological services at LSS such as the use ofrestraints the use of emergency procedures the development andupdate of functional assessments and staff implementation ofprograms There is no systemic tracking and analysis of the typeof restrictive components contained in BSPs In fact no oneknew basic information such as the number of BSPs that had restrictive components

Additionally all of the BSPs we reviewed failed to provideprecise strategies for measuring the effectiveness of the planThe outcomes currently used by LSS to measure effectiveness arenot indicators of a positive quality of life Instead there isa reliance on the frequency of problem behaviors Although theBSPs all mention collecting data regarding the occurrence ofproblem behaviors no plan addresses the methods used to ensurepromotion of positive replacement behaviors and we found nonethat monitors the individualrsquos use of such behaviors

There is also no systemic review of data reliability at LSSSimilarly the accuracy of behavior data is suspect In this regard problem behaviors are often too poorly defined to bemonitored accurately For example five different behaviorscould be described as ldquoaggressionrdquo and data are recorded asldquoaggressionrdquo when any of the five behaviors is exhibited Cf 42 CFR sect 483440(e)(1) (ldquoData relative to accomplishment of thecriteria specified in client individual program plan objectivesmust be documented in measurable termsrdquo) Consequently thecollected data are not clinically useful

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 12 -

prepared between March and May 2005 we found no mention of anyproblems regarding residentsrsquo medication ndash a finding unsupportedby data in other LSS records For example the QDRRs did notidentify lab results identifying abnormal or sub-therapeuticvalues even though such results were noted in resident chartsThe medication reviews provided by the pharmacy are inadequateand place residents at risk of harm Although these duties arestandard responsibilities of pharmacists in ICFMR facilitieslike LSS the LSS pharmacy does not routinely address theseneeds

h Dental Services

In contravention of generally accepted professionalstandards of care resident medical charts lack a comprehensivedental assessment by which to determine whether appropriatedental services are provided to residents We were told duringour visit that dental x-rays are done on some residents but noton others an approach that appears arbitrary Also asdiscussed more extensively at section IA2d below thecontinuing use of sedating medications for dental proceduresespecially in view of the absence of any de-sensitizationprogram is problematic Additionally there are no records keptat LSS regarding the use of restraints or manual holds duringdental procedures Nevertheless it is important to note that wefound an adequate response by dental practitioners whenindividuals complained of tooth pain records confirm that thosepersons were seen either on the day of the complaint or the nextday

2 Psychiatric Services

LSS does not provide adequate psychiatric services toresidents with mental illness This finding is a serious concernbecause of the number of residents currently identified asneeding psychiatric services (approximately 200 individuals) andthe reported trend at LSS to admit increasing numbers of personswith mental health issues We found evidence that the deficiencies in psychiatric services at LSS extend across severalcomponents critical to providing adequate care includingpsychiatric assessments psychiatric diagnoses medicationmanagement use of ldquopre-medicationsrdquo individual and grouptherapy and collaboration between psychiatry and neurology

a Psychiatric Assessments

Minimum professional standards of care call for a carefulprocess of collecting and assessing relevant information to

- 13 -

determine an appropriate psychiatric diagnosis However none ofthe 31 psychiatric assessments we reviewed contained thenecessary components of a standard psychiatric assessment Chart review confirmed that LSSrsquos psychiatrists do not adequatelyconsider individuals medical issues physical injuries familyand psychiatric history and comprehensive medication regime whenattempting to determine the correct psychiatric diagnosisBecause professional staff does not fully consider criticalfactors such as these the resulting assessment is incomplete andpossibly inaccurate

b Psychiatric Diagnoses

Our review evidenced that many LSS residents have beenidentified as having psychiatric disorders based on vaguediagnoses that do not comport with professional standards and donot appropriately inform treatment decisions In fact in 26 of31 records reviewed it was not possible to discern thepsychiatric diagnosis for the mental condition being treatedSimilarly the charts of DT NN and EC listed Axis I12

psychiatric diagnoses that were not acceptable under theDiagnostic and Statistical Manual of Mental Disorders (ldquoDSMrdquo)the accepted standard for psychiatric diagnostic criteriaSeparately LSSrsquos psychiatric records demonstrate a consistentlack of clinical documentation to justify the mental healthdiagnoses that are provided

A number of interrelated factors contribute to the facilityrsquos problems in developing adequate psychiatric diagnosesFirst the one full-time psychiatrist at LSS has a caseload of180 residents With this caseload the psychiatrist must dependheavily upon information provided by direct care staff todiagnose his patients However direct care staff lack adequatetraining in basic mental health issues including what symptomsand side effects to monitor and how to monitor them In this regard the psychiatrist does not routinely inform theindividualrsquos interdisciplinary team (ldquoIDTrdquo)13 of the clinical

12 ldquoAxis Irdquo mental health diagnoses are those identifiedby the Diagnostic and Statistical Manual of Mental Disorders in abroad class of ldquoclinical disordersrdquo such as deliriumschizophrenia and other psychotic disorders mood and anxietydisorders and sleep disorders

13 The IDT is composed of the facility staff membersassigned from each discipline such as occupational therapy

(continued)

- 14 -

justification for mental health diagnoses As a result themembers of the IDT do not know what symptoms to track to provideobjective data on treatment efficacy

Diagnoses drive treatment interventions includingmedication choices The absence of sound diagnoses exposes LSSrsquosresidents to counterproductive even harmful interventions andto interventions that mask but do not correct underlyingdisorders LSSrsquos failure to provide clinically justifiedpsychiatric diagnoses constitutes a substantial departure fromgenerally accepted professional standards of care that exposesits residents to harm

c Medication Management

To assess individuals mental health status and the effectiveness of their treatment facilities like LSS typicallyutilize professional treatment review teams The LSS Psychotropic Review Clinic has functional flaws it emphasizes adiscipline-specific approach is fragmented and omits the viewsof the individuals IDT Although the psychiatrist appears to beseeing residents on rounds (and making medication adjustments atthat time) there do not appear to be any established criteria inplace that would trigger psychotropic reviews when necessarySeparately treatment choices frequently do not appear to besubstantiated by the assigned diagnosis For example SEreceived antipsychotic medication to treat a movement disorderinvolving self-injurious behavior There was no documentation in his record to justify clinically this choice of treatment

Also we could not find evidence of appropriate oversight ofmedication usage by LSSrsquos residents including consideration ofpotentially more appropriate medications For example there wasno documentation to indicate that SE was seen in the Psychotropic Review Clinic to review the stabilization of hisglucose level after a medication change or to consider use ofanother medication as had been recommended in his psychiatricconsultation Nor was there any indication that the IDT haddiscussed his case LSSs failure to provide regular medicationfollow-up based on residents needs is a substantial deviation

13(continued)direct care and nursing providing supports and services to theindividual The members of the IDT are responsible for workingin collaboration to ensure that the individualrsquos care needs are met and typically are the staff members at the facility who aremost familiar with the individual

- 15 -

from accepted professional standards of safe medication practicesand places the residents at significant risk of harm

d ldquoPre-Medicationsrdquo

LSS utilizes pre-medications (sedatives administered toindividuals prior to medical or dental procedures) to controlresidents Although pre-medications are sometimes necessary atleast on a short-term basis LSSrsquos use of pre-medications isproblematic Most significantly the facility does notsystematically monitor the use of such medicationsConsequently it cannot reliably track the efficacy of themedications on particular individuals the frequency with whichindividuals are medicated with these drugs and the consequentialside effects including interactions with other medicationsfalls injuries and reduced cognition In this regardpsychiatrists are not consistently informed when their patientsreceive pre-medications although pre-medications can skew theresults of a mental status examination and cause behavioral problems Separately and more fundamentally we did not seeevidence that de-sensitization programs were in place at LSS tohelp diffuse individuals fear of procedures and eventuallyreduce the need for pre-medication LSSrsquos pre-medicationpractices constitute a substantial departure from generallyaccepted professional standards of care that expose individualsto harm

e Individual and Group Therapy

Accepted standards of psychiatric practice require thatpersons with mental illness are assessed to determine their needfor treatment There is no system at LSS to ensure thatindividuals are assessed evaluated and referred for individualor group therapy Chart reviews at LSS indicated that only threeindividuals of the 200 identified with mental illness receive therapy Individuals with a clear need for psychotherapy at LSSwere not referred for treatment These included persons who haveexperienced abusive and traumatic events Failure to providenecessary treatment places LSSrsquos residents at risk of substantialharm

f Collaboration between Psychiatry andNeurology

LSS lacks a formal system for collaboration betweenpsychiatry and neurology staff on safe medication practices forindividuals with co-occurring seizure and mental healthdisorders This is a substantial deviation from accepted

- 16 -

standards of care and places individuals at risk of harmSpecifically the side effects of medications in both areas canhave a far-reaching impact on the individualrsquos health andbehavior Without a system in place to exchange informationbetween these two disciplines treatment altered by one specialtycould destabilize treatment from the other specialty

B Protection from Harm

LSS fails to provide basic oversight of resident care andtreatment critical to ensuring the reasonable safety of itsresidents As described in more detail below LSSrsquos failure toprotect residents from harm stems from inadequate supervisionthe failure to appropriately detect and prevent abuse andneglect and an inadequate incident management systemConsequently residents are exposed to significant harm

1 Inadequate Supervision and Neglect

Our review of facility incident reports and investigationsconfirmed that residents are being subjected to a wide-spreadpattern of harm due to inadequate supervision neglect andpossible abuse The circumstances surrounding the death ofNLU (described in more detail at section IA1 above) inwhich staff failed to call for immediate medical attentionfailed to assist with basic first aid and falsified recordsevidence significant neglect Other examples we identifiedinclude

bull On May 5 2005 a staff person who was assigned one-to-one supervision to ES failed to notice that ES hadfastened a belt around his neck According to LSSrsquosrecords this occurred when the lights were off inESrsquos room two televisions were on and the staffperson was using her personal cell phone

bull On May 9 2005 CS was discovered to have twodecubitus ulcers on her buttocks and another on her shoulder These sores according to LSSrsquos own recordswere a result of workers not changing CSrsquos positionand leaving her lying in urine-soaked diapers

bull NP has PICA (an eating disorder involving themouthing or ingestion of non-food substances)Notwithstanding the identified need to protect NPfrom ingesting nonedible items facility recordsindicate that NP repeatedly has been discoveredchewing or eating harmful objects For example on

- 17 -

April 18 2004 staff discovered NP chewing on apiece of gel cushion on September 28 2004 during aldquodiaper checkrdquo staff discovered a glove coming out ofNPrsquos rectum and on October 25 2004 a ldquoforeignbodyrdquo was discovered in NP during an x-ray

bull On February 18 2004 MK had an x-ray to determine ifhe had a high fecal impaction The x-ray confirmed theimpaction and also revealed that MK had ingested abutton Examination of his clothing revealed severalbuttons were missing from his shirts LSS had removed clothing with buttons from MKrsquos wardrobe but did notaddress the adequacy of his supervision

bull On either June 6 2005 or June 7 2005 QD was foundwith a 15 cut to his face and two black eyes No one reportedly witnessed the cause of the injuries The LSS investigation included a report stating that otherindividuals in the same home had had bruises or injuries during the same approximate time period butincidents that may have caused bruising and injurieshad never been seen Individuals sustaining injurieswere unable to explain what happened Multiple staffmembers including direct care staff and managementstaff stated to us during our visit that ldquomostrdquo of theapproximately 23 residents in the home were intimidatedor frightened by a particular male staff memberassigned to this home on the 200 pm - 1000 pmshift This staff person reportedly has beeninvestigated in the past for similar incidents and wasalways working within the time frame of the reportedinjuries We did not see evidence that LSS took action in response to these residentsrsquo concerns or the patternof injuries and staff assignments

As of the time of our visit 66 of the population at LSShas been injured by another resident badly enough to require morethan first aid Almost 50 of the population was injured byanother peer at least one time from April 2004 to April 2005Individuals at LSS continue to be at risk of resident-to-resident injuries including human bites and fractures Seventy-threeresidents (21 of the LSS population) have been injured fromtheir peersrsquo bites and 41 of these residents (56) requiredmedical attention as a result

Even in instances where known behavioral risks have been communicated staff were unable to respond adequately This is particularly evident in cases of residents causing injuries to

- 18 -

other residents For example UKT was bitten by otherresidents 26 times between May 2003 and May 2005 One resident was responsible for 16 of those bites while another residentcaused five bites As a result of these bites UKT requiredmedical care to her face wrist forearm upper arm shoulder andback

2 Inadequate Incident Management

Generally accepted professional standards of care requirethat facilities gather and assess incident data to identifypotentially problematic trends and to identify implement andmonitor implementation of corrective action Proper incidentinvestigations are also a federal regulatory requirement See 42 CFR sect 483420(d)(2)-(4) (requiring that incidents beinvestigated and appropriate action taken)

LSS does not have an effective incident management andquality improvement system For instance LSS does not audit toconfirm that significant resident injuries are reported forinvestigation Many abuse and neglect investigation files thatwe reviewed indicated that staff had knowledge of an incident butfailed to report it Further staff were not corrected forfailing to report A few examples of staffrsquos failure to reportabuse and neglect include

bull On February 7 2005 SH ingested an orange neonrubber string while on one-to-one supervision No incident report was ever filed nor was aninvestigation opened regarding the staffrsquos failure tosupervise SH properly

bull On August 5 2004 EE ingested stickers while she wassupervised by one-to-one staff Following thisincident staff also failed to file any written reportor investigate neglect

bull On June 15 2004 another LSS resident EN ingesteda nickel while on one-to-one supervision Like the other residents mentioned above there was no report ofthis incident or investigation of neglect

These examples indicate that LSS is experiencing significantunder reporting of incidents Failure by staff to report abuseand neglect places residents at significant risk of immediate andfuture harm

- 19 -

C BEHAVIOR PROGRAMS RESTRAINTS AND HABILITATION

LSSrsquos residents are entitled to ldquothe minimally adequatetraining required by the Constitution as may be reasonablein light of [the residentsrsquo] liberty interests in safety andfreedom from unreasonable restraintsrdquo Youngberg 457 US at322 LSS fails to provide adequate psychological services tomeet the needs of residents with behavior problemsSpecifically LSS (1) provides residents with ineffectivebehavioral programs (2) exposes residents to undue restraintsand (3) provides inadequate habilitation treatment and activityprograms

Generally accepted professional practice requires thatappropriate psychological interventions such as behaviorprograms andor habilitation plans14 be used to address significant behavior problems However many LSS residents whorequire psychological interventions are simply not provided themAs described in more detail below LSSrsquos deficiencies in thisarea substantially hinder treatment of residentsrsquo problembehaviors exposing residents to a significantly increased riskof abuse and compromising residentsrsquo opportunities for placementin a more integrated setting The examples of injurious behaviorset forth above in addition to demonstrating inadequatesupervision and neglect also demonstrate significant weaknessesin LSSrsquos behavioral programming

1 Behavior Programs

Generally accepted professional standards of practiceprovide that behavior programs (1) be based on adequatefunctional assessments (2) be implemented as written and (3) bemonitored and evaluated adequately Ineffective behavior programs increase the likelihood that residents engage in harmfuland inappropriate (rdquomaladaptiverdquo) behaviors subjecting them tounnecessarily restrictive interventions and treatments LSSrsquos behavior programs are ineffective and substantially depart fromgenerally accepted professional standards In particular theyare not based on adequate functional assessments not implementedas written and are not monitored evaluated and revisedadequately

14 Habilitation includes but is not limited toindividualized training education and skill acquisitionprograms developed and implemented by interdisciplinary teams topromote the growth development and independence of individuals

- 20 -

For example HH has been diagnosed with PICA Her psychologist reports that on October 8 2004 she tore open thearmrest of a recliner and attempted to eat the stuffing She also has chewed on the edge of a dining room table a bed sheetand a piece of diaper According to the psychologist testingHH boredom was the underlying cause which indicates that HHdoes not receive adequate habilitation and training HH has a behavior support plan (ldquoBSPrdquo) to address these issues but ratherthan modify the BSP or ensure that it was properly implementedto address her boredom HH was prescribed Zyprexa an atypicalantipsychotic medication and the antidepressant Paxil

a Functional Assessment

Generally accepted professional standards of care for thispopulation dictate that there is an adequate and currentfunctional assessment in all cases prior to the initiation ofpsychological treatment A functional assessment is a professional assessment technique that identifies the particularpositive or negative factors that prompt or maintain achallenging behavior for a given individual By understandingthe causes or ldquofunctionrdquo of challenging behaviorsprofessionals can attempt to reduce or eliminate these factorsrsquoinfluence and thus reduce or eliminate the challengingbehaviors Without such informed understanding of the cause ofbehaviors attempted treatments are arbitrary and ineffective

The functional assessments developed by LSSrsquos psychologystaff are seriously deficient They are somewhat arbitrary andfail to address highly relevant information such as (1) aresidentrsquos background including social history and treatmentexperiences (2) summary behavior data (3) assessment tools usedto determine the function of the behavior (4) medical issuesparticularly health problems that might influence the behavior(5) mental health concerns including clinical diagnoses anddescriptions of clinical or behavioral manifestations associatedwith each diagnosis and (6) recommended treatmentinterventionthat develop new skills and appropriate replacement behaviorsthat adequately substitute for the maladaptive behavior

Without a thorough assessment of the function of theresidentrsquos maladaptive behavior including clearly identifiedappropriate replacement behaviors behavior programs will not besuccessful in modifying the maladaptive behavior As a result of LSSrsquos incomplete assessments numerous residents with behavioraldifficulties and other residents in their proximity haveremained at risk of harm due to ongoing behavior problems thatare not treated effectively

- 21 -

b Behavior Program Implementation

Improper implementation of a behavior program can lead tothe inadvertent reinforcement of maladaptive behaviors as wellexcessive use of restrictive treatments Throughout LSS weobserved numerous incidents of inadequate implementation ofbehavioral support programs

Consistent and correct implementation of appropriatebehavior programs is essential However as stated above thewritten programs themselves are deficient and the inconsistentimplementation of these inadequate programs only magnifies theseinadequacies resulting in a level of care that is grosslyinconsistent with generally accepted professional standards ofcare This poor implementation of programming places LSSrsquosresidents with behavior problems at risk of continued harmcontinued exposure to restrictive interventions and continuedinstitutionalization Many of the problems stem from inadequatecompetency-based training of staff regarding the properimplementation of behavior programs

c Monitoring and Evaluation

Generally accepted professional standards of care requirethat facilities monitor residents who have behavior programs toassess the residentsrsquo progress and the programrsquos efficacyWithout the necessary monitoring and evaluation residents are indanger of being subjected to inadequate and unnecessarilyrestrictive treatment as well as avoidable injuries related tountreated behaviors In this regard the injury data discussedabove particularly regarding human bites provides strongevidence that plans are ineffective

None of the behavior programs we reviewed specified theprocedure used to monitor the resident or supervise staffimplementation of the program and none of the programs providedfor measuring changes in replacement behaviors Further thesafeguard of professional review and monitoring of behaviorsupport services at LSS is woefully inadequate Contrary togenerally accepted professional standards of care there is noprofessional review prior to implementation of BSPs byindividuals with expertise in applied behavior analysis and inthe development and implementation of behavior supports We found no documentation evidencing a review of BSPs forappropriate content completion and protection of individualrights including restraint reduction plans and informed consentfor any restrictive practices which again is contrary togenerally accepted standards of care

- 22 -

The Behavior Support Review Committee (ldquoBSRCrdquo) review forQN diagnosed with Alzheimerrsquos was limited to a review of herpsychotropic medications and a statement that her problembehavior of aggression would be included in her BSP There was no evidence of a review of the BSP itself including whether itprovided for monitoring of the behaviors which the psychotropicmedication was intended to address (ldquotarget behaviorsrdquo) noconsideration of assessment results nor consideration of thehypothesized function of the problem behavior There was also no discussion of the BSPrsquos failure to identify any support for theAlzheimerrsquos diagnosis

d Quality Assurance

There is no ongoing facility-wide tracking of criticalaspects of psychological services at LSS such as the use ofrestraints the use of emergency procedures the development andupdate of functional assessments and staff implementation ofprograms There is no systemic tracking and analysis of the typeof restrictive components contained in BSPs In fact no oneknew basic information such as the number of BSPs that had restrictive components

Additionally all of the BSPs we reviewed failed to provideprecise strategies for measuring the effectiveness of the planThe outcomes currently used by LSS to measure effectiveness arenot indicators of a positive quality of life Instead there isa reliance on the frequency of problem behaviors Although theBSPs all mention collecting data regarding the occurrence ofproblem behaviors no plan addresses the methods used to ensurepromotion of positive replacement behaviors and we found nonethat monitors the individualrsquos use of such behaviors

There is also no systemic review of data reliability at LSSSimilarly the accuracy of behavior data is suspect In this regard problem behaviors are often too poorly defined to bemonitored accurately For example five different behaviorscould be described as ldquoaggressionrdquo and data are recorded asldquoaggressionrdquo when any of the five behaviors is exhibited Cf 42 CFR sect 483440(e)(1) (ldquoData relative to accomplishment of thecriteria specified in client individual program plan objectivesmust be documented in measurable termsrdquo) Consequently thecollected data are not clinically useful

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 13 -

determine an appropriate psychiatric diagnosis However none ofthe 31 psychiatric assessments we reviewed contained thenecessary components of a standard psychiatric assessment Chart review confirmed that LSSrsquos psychiatrists do not adequatelyconsider individuals medical issues physical injuries familyand psychiatric history and comprehensive medication regime whenattempting to determine the correct psychiatric diagnosisBecause professional staff does not fully consider criticalfactors such as these the resulting assessment is incomplete andpossibly inaccurate

b Psychiatric Diagnoses

Our review evidenced that many LSS residents have beenidentified as having psychiatric disorders based on vaguediagnoses that do not comport with professional standards and donot appropriately inform treatment decisions In fact in 26 of31 records reviewed it was not possible to discern thepsychiatric diagnosis for the mental condition being treatedSimilarly the charts of DT NN and EC listed Axis I12

psychiatric diagnoses that were not acceptable under theDiagnostic and Statistical Manual of Mental Disorders (ldquoDSMrdquo)the accepted standard for psychiatric diagnostic criteriaSeparately LSSrsquos psychiatric records demonstrate a consistentlack of clinical documentation to justify the mental healthdiagnoses that are provided

A number of interrelated factors contribute to the facilityrsquos problems in developing adequate psychiatric diagnosesFirst the one full-time psychiatrist at LSS has a caseload of180 residents With this caseload the psychiatrist must dependheavily upon information provided by direct care staff todiagnose his patients However direct care staff lack adequatetraining in basic mental health issues including what symptomsand side effects to monitor and how to monitor them In this regard the psychiatrist does not routinely inform theindividualrsquos interdisciplinary team (ldquoIDTrdquo)13 of the clinical

12 ldquoAxis Irdquo mental health diagnoses are those identifiedby the Diagnostic and Statistical Manual of Mental Disorders in abroad class of ldquoclinical disordersrdquo such as deliriumschizophrenia and other psychotic disorders mood and anxietydisorders and sleep disorders

13 The IDT is composed of the facility staff membersassigned from each discipline such as occupational therapy

(continued)

- 14 -

justification for mental health diagnoses As a result themembers of the IDT do not know what symptoms to track to provideobjective data on treatment efficacy

Diagnoses drive treatment interventions includingmedication choices The absence of sound diagnoses exposes LSSrsquosresidents to counterproductive even harmful interventions andto interventions that mask but do not correct underlyingdisorders LSSrsquos failure to provide clinically justifiedpsychiatric diagnoses constitutes a substantial departure fromgenerally accepted professional standards of care that exposesits residents to harm

c Medication Management

To assess individuals mental health status and the effectiveness of their treatment facilities like LSS typicallyutilize professional treatment review teams The LSS Psychotropic Review Clinic has functional flaws it emphasizes adiscipline-specific approach is fragmented and omits the viewsof the individuals IDT Although the psychiatrist appears to beseeing residents on rounds (and making medication adjustments atthat time) there do not appear to be any established criteria inplace that would trigger psychotropic reviews when necessarySeparately treatment choices frequently do not appear to besubstantiated by the assigned diagnosis For example SEreceived antipsychotic medication to treat a movement disorderinvolving self-injurious behavior There was no documentation in his record to justify clinically this choice of treatment

Also we could not find evidence of appropriate oversight ofmedication usage by LSSrsquos residents including consideration ofpotentially more appropriate medications For example there wasno documentation to indicate that SE was seen in the Psychotropic Review Clinic to review the stabilization of hisglucose level after a medication change or to consider use ofanother medication as had been recommended in his psychiatricconsultation Nor was there any indication that the IDT haddiscussed his case LSSs failure to provide regular medicationfollow-up based on residents needs is a substantial deviation

13(continued)direct care and nursing providing supports and services to theindividual The members of the IDT are responsible for workingin collaboration to ensure that the individualrsquos care needs are met and typically are the staff members at the facility who aremost familiar with the individual

- 15 -

from accepted professional standards of safe medication practicesand places the residents at significant risk of harm

d ldquoPre-Medicationsrdquo

LSS utilizes pre-medications (sedatives administered toindividuals prior to medical or dental procedures) to controlresidents Although pre-medications are sometimes necessary atleast on a short-term basis LSSrsquos use of pre-medications isproblematic Most significantly the facility does notsystematically monitor the use of such medicationsConsequently it cannot reliably track the efficacy of themedications on particular individuals the frequency with whichindividuals are medicated with these drugs and the consequentialside effects including interactions with other medicationsfalls injuries and reduced cognition In this regardpsychiatrists are not consistently informed when their patientsreceive pre-medications although pre-medications can skew theresults of a mental status examination and cause behavioral problems Separately and more fundamentally we did not seeevidence that de-sensitization programs were in place at LSS tohelp diffuse individuals fear of procedures and eventuallyreduce the need for pre-medication LSSrsquos pre-medicationpractices constitute a substantial departure from generallyaccepted professional standards of care that expose individualsto harm

e Individual and Group Therapy

Accepted standards of psychiatric practice require thatpersons with mental illness are assessed to determine their needfor treatment There is no system at LSS to ensure thatindividuals are assessed evaluated and referred for individualor group therapy Chart reviews at LSS indicated that only threeindividuals of the 200 identified with mental illness receive therapy Individuals with a clear need for psychotherapy at LSSwere not referred for treatment These included persons who haveexperienced abusive and traumatic events Failure to providenecessary treatment places LSSrsquos residents at risk of substantialharm

f Collaboration between Psychiatry andNeurology

LSS lacks a formal system for collaboration betweenpsychiatry and neurology staff on safe medication practices forindividuals with co-occurring seizure and mental healthdisorders This is a substantial deviation from accepted

- 16 -

standards of care and places individuals at risk of harmSpecifically the side effects of medications in both areas canhave a far-reaching impact on the individualrsquos health andbehavior Without a system in place to exchange informationbetween these two disciplines treatment altered by one specialtycould destabilize treatment from the other specialty

B Protection from Harm

LSS fails to provide basic oversight of resident care andtreatment critical to ensuring the reasonable safety of itsresidents As described in more detail below LSSrsquos failure toprotect residents from harm stems from inadequate supervisionthe failure to appropriately detect and prevent abuse andneglect and an inadequate incident management systemConsequently residents are exposed to significant harm

1 Inadequate Supervision and Neglect

Our review of facility incident reports and investigationsconfirmed that residents are being subjected to a wide-spreadpattern of harm due to inadequate supervision neglect andpossible abuse The circumstances surrounding the death ofNLU (described in more detail at section IA1 above) inwhich staff failed to call for immediate medical attentionfailed to assist with basic first aid and falsified recordsevidence significant neglect Other examples we identifiedinclude

bull On May 5 2005 a staff person who was assigned one-to-one supervision to ES failed to notice that ES hadfastened a belt around his neck According to LSSrsquosrecords this occurred when the lights were off inESrsquos room two televisions were on and the staffperson was using her personal cell phone

bull On May 9 2005 CS was discovered to have twodecubitus ulcers on her buttocks and another on her shoulder These sores according to LSSrsquos own recordswere a result of workers not changing CSrsquos positionand leaving her lying in urine-soaked diapers

bull NP has PICA (an eating disorder involving themouthing or ingestion of non-food substances)Notwithstanding the identified need to protect NPfrom ingesting nonedible items facility recordsindicate that NP repeatedly has been discoveredchewing or eating harmful objects For example on

- 17 -

April 18 2004 staff discovered NP chewing on apiece of gel cushion on September 28 2004 during aldquodiaper checkrdquo staff discovered a glove coming out ofNPrsquos rectum and on October 25 2004 a ldquoforeignbodyrdquo was discovered in NP during an x-ray

bull On February 18 2004 MK had an x-ray to determine ifhe had a high fecal impaction The x-ray confirmed theimpaction and also revealed that MK had ingested abutton Examination of his clothing revealed severalbuttons were missing from his shirts LSS had removed clothing with buttons from MKrsquos wardrobe but did notaddress the adequacy of his supervision

bull On either June 6 2005 or June 7 2005 QD was foundwith a 15 cut to his face and two black eyes No one reportedly witnessed the cause of the injuries The LSS investigation included a report stating that otherindividuals in the same home had had bruises or injuries during the same approximate time period butincidents that may have caused bruising and injurieshad never been seen Individuals sustaining injurieswere unable to explain what happened Multiple staffmembers including direct care staff and managementstaff stated to us during our visit that ldquomostrdquo of theapproximately 23 residents in the home were intimidatedor frightened by a particular male staff memberassigned to this home on the 200 pm - 1000 pmshift This staff person reportedly has beeninvestigated in the past for similar incidents and wasalways working within the time frame of the reportedinjuries We did not see evidence that LSS took action in response to these residentsrsquo concerns or the patternof injuries and staff assignments

As of the time of our visit 66 of the population at LSShas been injured by another resident badly enough to require morethan first aid Almost 50 of the population was injured byanother peer at least one time from April 2004 to April 2005Individuals at LSS continue to be at risk of resident-to-resident injuries including human bites and fractures Seventy-threeresidents (21 of the LSS population) have been injured fromtheir peersrsquo bites and 41 of these residents (56) requiredmedical attention as a result

Even in instances where known behavioral risks have been communicated staff were unable to respond adequately This is particularly evident in cases of residents causing injuries to

- 18 -

other residents For example UKT was bitten by otherresidents 26 times between May 2003 and May 2005 One resident was responsible for 16 of those bites while another residentcaused five bites As a result of these bites UKT requiredmedical care to her face wrist forearm upper arm shoulder andback

2 Inadequate Incident Management

Generally accepted professional standards of care requirethat facilities gather and assess incident data to identifypotentially problematic trends and to identify implement andmonitor implementation of corrective action Proper incidentinvestigations are also a federal regulatory requirement See 42 CFR sect 483420(d)(2)-(4) (requiring that incidents beinvestigated and appropriate action taken)

LSS does not have an effective incident management andquality improvement system For instance LSS does not audit toconfirm that significant resident injuries are reported forinvestigation Many abuse and neglect investigation files thatwe reviewed indicated that staff had knowledge of an incident butfailed to report it Further staff were not corrected forfailing to report A few examples of staffrsquos failure to reportabuse and neglect include

bull On February 7 2005 SH ingested an orange neonrubber string while on one-to-one supervision No incident report was ever filed nor was aninvestigation opened regarding the staffrsquos failure tosupervise SH properly

bull On August 5 2004 EE ingested stickers while she wassupervised by one-to-one staff Following thisincident staff also failed to file any written reportor investigate neglect

bull On June 15 2004 another LSS resident EN ingesteda nickel while on one-to-one supervision Like the other residents mentioned above there was no report ofthis incident or investigation of neglect

These examples indicate that LSS is experiencing significantunder reporting of incidents Failure by staff to report abuseand neglect places residents at significant risk of immediate andfuture harm

- 19 -

C BEHAVIOR PROGRAMS RESTRAINTS AND HABILITATION

LSSrsquos residents are entitled to ldquothe minimally adequatetraining required by the Constitution as may be reasonablein light of [the residentsrsquo] liberty interests in safety andfreedom from unreasonable restraintsrdquo Youngberg 457 US at322 LSS fails to provide adequate psychological services tomeet the needs of residents with behavior problemsSpecifically LSS (1) provides residents with ineffectivebehavioral programs (2) exposes residents to undue restraintsand (3) provides inadequate habilitation treatment and activityprograms

Generally accepted professional practice requires thatappropriate psychological interventions such as behaviorprograms andor habilitation plans14 be used to address significant behavior problems However many LSS residents whorequire psychological interventions are simply not provided themAs described in more detail below LSSrsquos deficiencies in thisarea substantially hinder treatment of residentsrsquo problembehaviors exposing residents to a significantly increased riskof abuse and compromising residentsrsquo opportunities for placementin a more integrated setting The examples of injurious behaviorset forth above in addition to demonstrating inadequatesupervision and neglect also demonstrate significant weaknessesin LSSrsquos behavioral programming

1 Behavior Programs

Generally accepted professional standards of practiceprovide that behavior programs (1) be based on adequatefunctional assessments (2) be implemented as written and (3) bemonitored and evaluated adequately Ineffective behavior programs increase the likelihood that residents engage in harmfuland inappropriate (rdquomaladaptiverdquo) behaviors subjecting them tounnecessarily restrictive interventions and treatments LSSrsquos behavior programs are ineffective and substantially depart fromgenerally accepted professional standards In particular theyare not based on adequate functional assessments not implementedas written and are not monitored evaluated and revisedadequately

14 Habilitation includes but is not limited toindividualized training education and skill acquisitionprograms developed and implemented by interdisciplinary teams topromote the growth development and independence of individuals

- 20 -

For example HH has been diagnosed with PICA Her psychologist reports that on October 8 2004 she tore open thearmrest of a recliner and attempted to eat the stuffing She also has chewed on the edge of a dining room table a bed sheetand a piece of diaper According to the psychologist testingHH boredom was the underlying cause which indicates that HHdoes not receive adequate habilitation and training HH has a behavior support plan (ldquoBSPrdquo) to address these issues but ratherthan modify the BSP or ensure that it was properly implementedto address her boredom HH was prescribed Zyprexa an atypicalantipsychotic medication and the antidepressant Paxil

a Functional Assessment

Generally accepted professional standards of care for thispopulation dictate that there is an adequate and currentfunctional assessment in all cases prior to the initiation ofpsychological treatment A functional assessment is a professional assessment technique that identifies the particularpositive or negative factors that prompt or maintain achallenging behavior for a given individual By understandingthe causes or ldquofunctionrdquo of challenging behaviorsprofessionals can attempt to reduce or eliminate these factorsrsquoinfluence and thus reduce or eliminate the challengingbehaviors Without such informed understanding of the cause ofbehaviors attempted treatments are arbitrary and ineffective

The functional assessments developed by LSSrsquos psychologystaff are seriously deficient They are somewhat arbitrary andfail to address highly relevant information such as (1) aresidentrsquos background including social history and treatmentexperiences (2) summary behavior data (3) assessment tools usedto determine the function of the behavior (4) medical issuesparticularly health problems that might influence the behavior(5) mental health concerns including clinical diagnoses anddescriptions of clinical or behavioral manifestations associatedwith each diagnosis and (6) recommended treatmentinterventionthat develop new skills and appropriate replacement behaviorsthat adequately substitute for the maladaptive behavior

Without a thorough assessment of the function of theresidentrsquos maladaptive behavior including clearly identifiedappropriate replacement behaviors behavior programs will not besuccessful in modifying the maladaptive behavior As a result of LSSrsquos incomplete assessments numerous residents with behavioraldifficulties and other residents in their proximity haveremained at risk of harm due to ongoing behavior problems thatare not treated effectively

- 21 -

b Behavior Program Implementation

Improper implementation of a behavior program can lead tothe inadvertent reinforcement of maladaptive behaviors as wellexcessive use of restrictive treatments Throughout LSS weobserved numerous incidents of inadequate implementation ofbehavioral support programs

Consistent and correct implementation of appropriatebehavior programs is essential However as stated above thewritten programs themselves are deficient and the inconsistentimplementation of these inadequate programs only magnifies theseinadequacies resulting in a level of care that is grosslyinconsistent with generally accepted professional standards ofcare This poor implementation of programming places LSSrsquosresidents with behavior problems at risk of continued harmcontinued exposure to restrictive interventions and continuedinstitutionalization Many of the problems stem from inadequatecompetency-based training of staff regarding the properimplementation of behavior programs

c Monitoring and Evaluation

Generally accepted professional standards of care requirethat facilities monitor residents who have behavior programs toassess the residentsrsquo progress and the programrsquos efficacyWithout the necessary monitoring and evaluation residents are indanger of being subjected to inadequate and unnecessarilyrestrictive treatment as well as avoidable injuries related tountreated behaviors In this regard the injury data discussedabove particularly regarding human bites provides strongevidence that plans are ineffective

None of the behavior programs we reviewed specified theprocedure used to monitor the resident or supervise staffimplementation of the program and none of the programs providedfor measuring changes in replacement behaviors Further thesafeguard of professional review and monitoring of behaviorsupport services at LSS is woefully inadequate Contrary togenerally accepted professional standards of care there is noprofessional review prior to implementation of BSPs byindividuals with expertise in applied behavior analysis and inthe development and implementation of behavior supports We found no documentation evidencing a review of BSPs forappropriate content completion and protection of individualrights including restraint reduction plans and informed consentfor any restrictive practices which again is contrary togenerally accepted standards of care

- 22 -

The Behavior Support Review Committee (ldquoBSRCrdquo) review forQN diagnosed with Alzheimerrsquos was limited to a review of herpsychotropic medications and a statement that her problembehavior of aggression would be included in her BSP There was no evidence of a review of the BSP itself including whether itprovided for monitoring of the behaviors which the psychotropicmedication was intended to address (ldquotarget behaviorsrdquo) noconsideration of assessment results nor consideration of thehypothesized function of the problem behavior There was also no discussion of the BSPrsquos failure to identify any support for theAlzheimerrsquos diagnosis

d Quality Assurance

There is no ongoing facility-wide tracking of criticalaspects of psychological services at LSS such as the use ofrestraints the use of emergency procedures the development andupdate of functional assessments and staff implementation ofprograms There is no systemic tracking and analysis of the typeof restrictive components contained in BSPs In fact no oneknew basic information such as the number of BSPs that had restrictive components

Additionally all of the BSPs we reviewed failed to provideprecise strategies for measuring the effectiveness of the planThe outcomes currently used by LSS to measure effectiveness arenot indicators of a positive quality of life Instead there isa reliance on the frequency of problem behaviors Although theBSPs all mention collecting data regarding the occurrence ofproblem behaviors no plan addresses the methods used to ensurepromotion of positive replacement behaviors and we found nonethat monitors the individualrsquos use of such behaviors

There is also no systemic review of data reliability at LSSSimilarly the accuracy of behavior data is suspect In this regard problem behaviors are often too poorly defined to bemonitored accurately For example five different behaviorscould be described as ldquoaggressionrdquo and data are recorded asldquoaggressionrdquo when any of the five behaviors is exhibited Cf 42 CFR sect 483440(e)(1) (ldquoData relative to accomplishment of thecriteria specified in client individual program plan objectivesmust be documented in measurable termsrdquo) Consequently thecollected data are not clinically useful

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 14 -

justification for mental health diagnoses As a result themembers of the IDT do not know what symptoms to track to provideobjective data on treatment efficacy

Diagnoses drive treatment interventions includingmedication choices The absence of sound diagnoses exposes LSSrsquosresidents to counterproductive even harmful interventions andto interventions that mask but do not correct underlyingdisorders LSSrsquos failure to provide clinically justifiedpsychiatric diagnoses constitutes a substantial departure fromgenerally accepted professional standards of care that exposesits residents to harm

c Medication Management

To assess individuals mental health status and the effectiveness of their treatment facilities like LSS typicallyutilize professional treatment review teams The LSS Psychotropic Review Clinic has functional flaws it emphasizes adiscipline-specific approach is fragmented and omits the viewsof the individuals IDT Although the psychiatrist appears to beseeing residents on rounds (and making medication adjustments atthat time) there do not appear to be any established criteria inplace that would trigger psychotropic reviews when necessarySeparately treatment choices frequently do not appear to besubstantiated by the assigned diagnosis For example SEreceived antipsychotic medication to treat a movement disorderinvolving self-injurious behavior There was no documentation in his record to justify clinically this choice of treatment

Also we could not find evidence of appropriate oversight ofmedication usage by LSSrsquos residents including consideration ofpotentially more appropriate medications For example there wasno documentation to indicate that SE was seen in the Psychotropic Review Clinic to review the stabilization of hisglucose level after a medication change or to consider use ofanother medication as had been recommended in his psychiatricconsultation Nor was there any indication that the IDT haddiscussed his case LSSs failure to provide regular medicationfollow-up based on residents needs is a substantial deviation

13(continued)direct care and nursing providing supports and services to theindividual The members of the IDT are responsible for workingin collaboration to ensure that the individualrsquos care needs are met and typically are the staff members at the facility who aremost familiar with the individual

- 15 -

from accepted professional standards of safe medication practicesand places the residents at significant risk of harm

d ldquoPre-Medicationsrdquo

LSS utilizes pre-medications (sedatives administered toindividuals prior to medical or dental procedures) to controlresidents Although pre-medications are sometimes necessary atleast on a short-term basis LSSrsquos use of pre-medications isproblematic Most significantly the facility does notsystematically monitor the use of such medicationsConsequently it cannot reliably track the efficacy of themedications on particular individuals the frequency with whichindividuals are medicated with these drugs and the consequentialside effects including interactions with other medicationsfalls injuries and reduced cognition In this regardpsychiatrists are not consistently informed when their patientsreceive pre-medications although pre-medications can skew theresults of a mental status examination and cause behavioral problems Separately and more fundamentally we did not seeevidence that de-sensitization programs were in place at LSS tohelp diffuse individuals fear of procedures and eventuallyreduce the need for pre-medication LSSrsquos pre-medicationpractices constitute a substantial departure from generallyaccepted professional standards of care that expose individualsto harm

e Individual and Group Therapy

Accepted standards of psychiatric practice require thatpersons with mental illness are assessed to determine their needfor treatment There is no system at LSS to ensure thatindividuals are assessed evaluated and referred for individualor group therapy Chart reviews at LSS indicated that only threeindividuals of the 200 identified with mental illness receive therapy Individuals with a clear need for psychotherapy at LSSwere not referred for treatment These included persons who haveexperienced abusive and traumatic events Failure to providenecessary treatment places LSSrsquos residents at risk of substantialharm

f Collaboration between Psychiatry andNeurology

LSS lacks a formal system for collaboration betweenpsychiatry and neurology staff on safe medication practices forindividuals with co-occurring seizure and mental healthdisorders This is a substantial deviation from accepted

- 16 -

standards of care and places individuals at risk of harmSpecifically the side effects of medications in both areas canhave a far-reaching impact on the individualrsquos health andbehavior Without a system in place to exchange informationbetween these two disciplines treatment altered by one specialtycould destabilize treatment from the other specialty

B Protection from Harm

LSS fails to provide basic oversight of resident care andtreatment critical to ensuring the reasonable safety of itsresidents As described in more detail below LSSrsquos failure toprotect residents from harm stems from inadequate supervisionthe failure to appropriately detect and prevent abuse andneglect and an inadequate incident management systemConsequently residents are exposed to significant harm

1 Inadequate Supervision and Neglect

Our review of facility incident reports and investigationsconfirmed that residents are being subjected to a wide-spreadpattern of harm due to inadequate supervision neglect andpossible abuse The circumstances surrounding the death ofNLU (described in more detail at section IA1 above) inwhich staff failed to call for immediate medical attentionfailed to assist with basic first aid and falsified recordsevidence significant neglect Other examples we identifiedinclude

bull On May 5 2005 a staff person who was assigned one-to-one supervision to ES failed to notice that ES hadfastened a belt around his neck According to LSSrsquosrecords this occurred when the lights were off inESrsquos room two televisions were on and the staffperson was using her personal cell phone

bull On May 9 2005 CS was discovered to have twodecubitus ulcers on her buttocks and another on her shoulder These sores according to LSSrsquos own recordswere a result of workers not changing CSrsquos positionand leaving her lying in urine-soaked diapers

bull NP has PICA (an eating disorder involving themouthing or ingestion of non-food substances)Notwithstanding the identified need to protect NPfrom ingesting nonedible items facility recordsindicate that NP repeatedly has been discoveredchewing or eating harmful objects For example on

- 17 -

April 18 2004 staff discovered NP chewing on apiece of gel cushion on September 28 2004 during aldquodiaper checkrdquo staff discovered a glove coming out ofNPrsquos rectum and on October 25 2004 a ldquoforeignbodyrdquo was discovered in NP during an x-ray

bull On February 18 2004 MK had an x-ray to determine ifhe had a high fecal impaction The x-ray confirmed theimpaction and also revealed that MK had ingested abutton Examination of his clothing revealed severalbuttons were missing from his shirts LSS had removed clothing with buttons from MKrsquos wardrobe but did notaddress the adequacy of his supervision

bull On either June 6 2005 or June 7 2005 QD was foundwith a 15 cut to his face and two black eyes No one reportedly witnessed the cause of the injuries The LSS investigation included a report stating that otherindividuals in the same home had had bruises or injuries during the same approximate time period butincidents that may have caused bruising and injurieshad never been seen Individuals sustaining injurieswere unable to explain what happened Multiple staffmembers including direct care staff and managementstaff stated to us during our visit that ldquomostrdquo of theapproximately 23 residents in the home were intimidatedor frightened by a particular male staff memberassigned to this home on the 200 pm - 1000 pmshift This staff person reportedly has beeninvestigated in the past for similar incidents and wasalways working within the time frame of the reportedinjuries We did not see evidence that LSS took action in response to these residentsrsquo concerns or the patternof injuries and staff assignments

As of the time of our visit 66 of the population at LSShas been injured by another resident badly enough to require morethan first aid Almost 50 of the population was injured byanother peer at least one time from April 2004 to April 2005Individuals at LSS continue to be at risk of resident-to-resident injuries including human bites and fractures Seventy-threeresidents (21 of the LSS population) have been injured fromtheir peersrsquo bites and 41 of these residents (56) requiredmedical attention as a result

Even in instances where known behavioral risks have been communicated staff were unable to respond adequately This is particularly evident in cases of residents causing injuries to

- 18 -

other residents For example UKT was bitten by otherresidents 26 times between May 2003 and May 2005 One resident was responsible for 16 of those bites while another residentcaused five bites As a result of these bites UKT requiredmedical care to her face wrist forearm upper arm shoulder andback

2 Inadequate Incident Management

Generally accepted professional standards of care requirethat facilities gather and assess incident data to identifypotentially problematic trends and to identify implement andmonitor implementation of corrective action Proper incidentinvestigations are also a federal regulatory requirement See 42 CFR sect 483420(d)(2)-(4) (requiring that incidents beinvestigated and appropriate action taken)

LSS does not have an effective incident management andquality improvement system For instance LSS does not audit toconfirm that significant resident injuries are reported forinvestigation Many abuse and neglect investigation files thatwe reviewed indicated that staff had knowledge of an incident butfailed to report it Further staff were not corrected forfailing to report A few examples of staffrsquos failure to reportabuse and neglect include

bull On February 7 2005 SH ingested an orange neonrubber string while on one-to-one supervision No incident report was ever filed nor was aninvestigation opened regarding the staffrsquos failure tosupervise SH properly

bull On August 5 2004 EE ingested stickers while she wassupervised by one-to-one staff Following thisincident staff also failed to file any written reportor investigate neglect

bull On June 15 2004 another LSS resident EN ingesteda nickel while on one-to-one supervision Like the other residents mentioned above there was no report ofthis incident or investigation of neglect

These examples indicate that LSS is experiencing significantunder reporting of incidents Failure by staff to report abuseand neglect places residents at significant risk of immediate andfuture harm

- 19 -

C BEHAVIOR PROGRAMS RESTRAINTS AND HABILITATION

LSSrsquos residents are entitled to ldquothe minimally adequatetraining required by the Constitution as may be reasonablein light of [the residentsrsquo] liberty interests in safety andfreedom from unreasonable restraintsrdquo Youngberg 457 US at322 LSS fails to provide adequate psychological services tomeet the needs of residents with behavior problemsSpecifically LSS (1) provides residents with ineffectivebehavioral programs (2) exposes residents to undue restraintsand (3) provides inadequate habilitation treatment and activityprograms

Generally accepted professional practice requires thatappropriate psychological interventions such as behaviorprograms andor habilitation plans14 be used to address significant behavior problems However many LSS residents whorequire psychological interventions are simply not provided themAs described in more detail below LSSrsquos deficiencies in thisarea substantially hinder treatment of residentsrsquo problembehaviors exposing residents to a significantly increased riskof abuse and compromising residentsrsquo opportunities for placementin a more integrated setting The examples of injurious behaviorset forth above in addition to demonstrating inadequatesupervision and neglect also demonstrate significant weaknessesin LSSrsquos behavioral programming

1 Behavior Programs

Generally accepted professional standards of practiceprovide that behavior programs (1) be based on adequatefunctional assessments (2) be implemented as written and (3) bemonitored and evaluated adequately Ineffective behavior programs increase the likelihood that residents engage in harmfuland inappropriate (rdquomaladaptiverdquo) behaviors subjecting them tounnecessarily restrictive interventions and treatments LSSrsquos behavior programs are ineffective and substantially depart fromgenerally accepted professional standards In particular theyare not based on adequate functional assessments not implementedas written and are not monitored evaluated and revisedadequately

14 Habilitation includes but is not limited toindividualized training education and skill acquisitionprograms developed and implemented by interdisciplinary teams topromote the growth development and independence of individuals

- 20 -

For example HH has been diagnosed with PICA Her psychologist reports that on October 8 2004 she tore open thearmrest of a recliner and attempted to eat the stuffing She also has chewed on the edge of a dining room table a bed sheetand a piece of diaper According to the psychologist testingHH boredom was the underlying cause which indicates that HHdoes not receive adequate habilitation and training HH has a behavior support plan (ldquoBSPrdquo) to address these issues but ratherthan modify the BSP or ensure that it was properly implementedto address her boredom HH was prescribed Zyprexa an atypicalantipsychotic medication and the antidepressant Paxil

a Functional Assessment

Generally accepted professional standards of care for thispopulation dictate that there is an adequate and currentfunctional assessment in all cases prior to the initiation ofpsychological treatment A functional assessment is a professional assessment technique that identifies the particularpositive or negative factors that prompt or maintain achallenging behavior for a given individual By understandingthe causes or ldquofunctionrdquo of challenging behaviorsprofessionals can attempt to reduce or eliminate these factorsrsquoinfluence and thus reduce or eliminate the challengingbehaviors Without such informed understanding of the cause ofbehaviors attempted treatments are arbitrary and ineffective

The functional assessments developed by LSSrsquos psychologystaff are seriously deficient They are somewhat arbitrary andfail to address highly relevant information such as (1) aresidentrsquos background including social history and treatmentexperiences (2) summary behavior data (3) assessment tools usedto determine the function of the behavior (4) medical issuesparticularly health problems that might influence the behavior(5) mental health concerns including clinical diagnoses anddescriptions of clinical or behavioral manifestations associatedwith each diagnosis and (6) recommended treatmentinterventionthat develop new skills and appropriate replacement behaviorsthat adequately substitute for the maladaptive behavior

Without a thorough assessment of the function of theresidentrsquos maladaptive behavior including clearly identifiedappropriate replacement behaviors behavior programs will not besuccessful in modifying the maladaptive behavior As a result of LSSrsquos incomplete assessments numerous residents with behavioraldifficulties and other residents in their proximity haveremained at risk of harm due to ongoing behavior problems thatare not treated effectively

- 21 -

b Behavior Program Implementation

Improper implementation of a behavior program can lead tothe inadvertent reinforcement of maladaptive behaviors as wellexcessive use of restrictive treatments Throughout LSS weobserved numerous incidents of inadequate implementation ofbehavioral support programs

Consistent and correct implementation of appropriatebehavior programs is essential However as stated above thewritten programs themselves are deficient and the inconsistentimplementation of these inadequate programs only magnifies theseinadequacies resulting in a level of care that is grosslyinconsistent with generally accepted professional standards ofcare This poor implementation of programming places LSSrsquosresidents with behavior problems at risk of continued harmcontinued exposure to restrictive interventions and continuedinstitutionalization Many of the problems stem from inadequatecompetency-based training of staff regarding the properimplementation of behavior programs

c Monitoring and Evaluation

Generally accepted professional standards of care requirethat facilities monitor residents who have behavior programs toassess the residentsrsquo progress and the programrsquos efficacyWithout the necessary monitoring and evaluation residents are indanger of being subjected to inadequate and unnecessarilyrestrictive treatment as well as avoidable injuries related tountreated behaviors In this regard the injury data discussedabove particularly regarding human bites provides strongevidence that plans are ineffective

None of the behavior programs we reviewed specified theprocedure used to monitor the resident or supervise staffimplementation of the program and none of the programs providedfor measuring changes in replacement behaviors Further thesafeguard of professional review and monitoring of behaviorsupport services at LSS is woefully inadequate Contrary togenerally accepted professional standards of care there is noprofessional review prior to implementation of BSPs byindividuals with expertise in applied behavior analysis and inthe development and implementation of behavior supports We found no documentation evidencing a review of BSPs forappropriate content completion and protection of individualrights including restraint reduction plans and informed consentfor any restrictive practices which again is contrary togenerally accepted standards of care

- 22 -

The Behavior Support Review Committee (ldquoBSRCrdquo) review forQN diagnosed with Alzheimerrsquos was limited to a review of herpsychotropic medications and a statement that her problembehavior of aggression would be included in her BSP There was no evidence of a review of the BSP itself including whether itprovided for monitoring of the behaviors which the psychotropicmedication was intended to address (ldquotarget behaviorsrdquo) noconsideration of assessment results nor consideration of thehypothesized function of the problem behavior There was also no discussion of the BSPrsquos failure to identify any support for theAlzheimerrsquos diagnosis

d Quality Assurance

There is no ongoing facility-wide tracking of criticalaspects of psychological services at LSS such as the use ofrestraints the use of emergency procedures the development andupdate of functional assessments and staff implementation ofprograms There is no systemic tracking and analysis of the typeof restrictive components contained in BSPs In fact no oneknew basic information such as the number of BSPs that had restrictive components

Additionally all of the BSPs we reviewed failed to provideprecise strategies for measuring the effectiveness of the planThe outcomes currently used by LSS to measure effectiveness arenot indicators of a positive quality of life Instead there isa reliance on the frequency of problem behaviors Although theBSPs all mention collecting data regarding the occurrence ofproblem behaviors no plan addresses the methods used to ensurepromotion of positive replacement behaviors and we found nonethat monitors the individualrsquos use of such behaviors

There is also no systemic review of data reliability at LSSSimilarly the accuracy of behavior data is suspect In this regard problem behaviors are often too poorly defined to bemonitored accurately For example five different behaviorscould be described as ldquoaggressionrdquo and data are recorded asldquoaggressionrdquo when any of the five behaviors is exhibited Cf 42 CFR sect 483440(e)(1) (ldquoData relative to accomplishment of thecriteria specified in client individual program plan objectivesmust be documented in measurable termsrdquo) Consequently thecollected data are not clinically useful

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 15 -

from accepted professional standards of safe medication practicesand places the residents at significant risk of harm

d ldquoPre-Medicationsrdquo

LSS utilizes pre-medications (sedatives administered toindividuals prior to medical or dental procedures) to controlresidents Although pre-medications are sometimes necessary atleast on a short-term basis LSSrsquos use of pre-medications isproblematic Most significantly the facility does notsystematically monitor the use of such medicationsConsequently it cannot reliably track the efficacy of themedications on particular individuals the frequency with whichindividuals are medicated with these drugs and the consequentialside effects including interactions with other medicationsfalls injuries and reduced cognition In this regardpsychiatrists are not consistently informed when their patientsreceive pre-medications although pre-medications can skew theresults of a mental status examination and cause behavioral problems Separately and more fundamentally we did not seeevidence that de-sensitization programs were in place at LSS tohelp diffuse individuals fear of procedures and eventuallyreduce the need for pre-medication LSSrsquos pre-medicationpractices constitute a substantial departure from generallyaccepted professional standards of care that expose individualsto harm

e Individual and Group Therapy

Accepted standards of psychiatric practice require thatpersons with mental illness are assessed to determine their needfor treatment There is no system at LSS to ensure thatindividuals are assessed evaluated and referred for individualor group therapy Chart reviews at LSS indicated that only threeindividuals of the 200 identified with mental illness receive therapy Individuals with a clear need for psychotherapy at LSSwere not referred for treatment These included persons who haveexperienced abusive and traumatic events Failure to providenecessary treatment places LSSrsquos residents at risk of substantialharm

f Collaboration between Psychiatry andNeurology

LSS lacks a formal system for collaboration betweenpsychiatry and neurology staff on safe medication practices forindividuals with co-occurring seizure and mental healthdisorders This is a substantial deviation from accepted

- 16 -

standards of care and places individuals at risk of harmSpecifically the side effects of medications in both areas canhave a far-reaching impact on the individualrsquos health andbehavior Without a system in place to exchange informationbetween these two disciplines treatment altered by one specialtycould destabilize treatment from the other specialty

B Protection from Harm

LSS fails to provide basic oversight of resident care andtreatment critical to ensuring the reasonable safety of itsresidents As described in more detail below LSSrsquos failure toprotect residents from harm stems from inadequate supervisionthe failure to appropriately detect and prevent abuse andneglect and an inadequate incident management systemConsequently residents are exposed to significant harm

1 Inadequate Supervision and Neglect

Our review of facility incident reports and investigationsconfirmed that residents are being subjected to a wide-spreadpattern of harm due to inadequate supervision neglect andpossible abuse The circumstances surrounding the death ofNLU (described in more detail at section IA1 above) inwhich staff failed to call for immediate medical attentionfailed to assist with basic first aid and falsified recordsevidence significant neglect Other examples we identifiedinclude

bull On May 5 2005 a staff person who was assigned one-to-one supervision to ES failed to notice that ES hadfastened a belt around his neck According to LSSrsquosrecords this occurred when the lights were off inESrsquos room two televisions were on and the staffperson was using her personal cell phone

bull On May 9 2005 CS was discovered to have twodecubitus ulcers on her buttocks and another on her shoulder These sores according to LSSrsquos own recordswere a result of workers not changing CSrsquos positionand leaving her lying in urine-soaked diapers

bull NP has PICA (an eating disorder involving themouthing or ingestion of non-food substances)Notwithstanding the identified need to protect NPfrom ingesting nonedible items facility recordsindicate that NP repeatedly has been discoveredchewing or eating harmful objects For example on

- 17 -

April 18 2004 staff discovered NP chewing on apiece of gel cushion on September 28 2004 during aldquodiaper checkrdquo staff discovered a glove coming out ofNPrsquos rectum and on October 25 2004 a ldquoforeignbodyrdquo was discovered in NP during an x-ray

bull On February 18 2004 MK had an x-ray to determine ifhe had a high fecal impaction The x-ray confirmed theimpaction and also revealed that MK had ingested abutton Examination of his clothing revealed severalbuttons were missing from his shirts LSS had removed clothing with buttons from MKrsquos wardrobe but did notaddress the adequacy of his supervision

bull On either June 6 2005 or June 7 2005 QD was foundwith a 15 cut to his face and two black eyes No one reportedly witnessed the cause of the injuries The LSS investigation included a report stating that otherindividuals in the same home had had bruises or injuries during the same approximate time period butincidents that may have caused bruising and injurieshad never been seen Individuals sustaining injurieswere unable to explain what happened Multiple staffmembers including direct care staff and managementstaff stated to us during our visit that ldquomostrdquo of theapproximately 23 residents in the home were intimidatedor frightened by a particular male staff memberassigned to this home on the 200 pm - 1000 pmshift This staff person reportedly has beeninvestigated in the past for similar incidents and wasalways working within the time frame of the reportedinjuries We did not see evidence that LSS took action in response to these residentsrsquo concerns or the patternof injuries and staff assignments

As of the time of our visit 66 of the population at LSShas been injured by another resident badly enough to require morethan first aid Almost 50 of the population was injured byanother peer at least one time from April 2004 to April 2005Individuals at LSS continue to be at risk of resident-to-resident injuries including human bites and fractures Seventy-threeresidents (21 of the LSS population) have been injured fromtheir peersrsquo bites and 41 of these residents (56) requiredmedical attention as a result

Even in instances where known behavioral risks have been communicated staff were unable to respond adequately This is particularly evident in cases of residents causing injuries to

- 18 -

other residents For example UKT was bitten by otherresidents 26 times between May 2003 and May 2005 One resident was responsible for 16 of those bites while another residentcaused five bites As a result of these bites UKT requiredmedical care to her face wrist forearm upper arm shoulder andback

2 Inadequate Incident Management

Generally accepted professional standards of care requirethat facilities gather and assess incident data to identifypotentially problematic trends and to identify implement andmonitor implementation of corrective action Proper incidentinvestigations are also a federal regulatory requirement See 42 CFR sect 483420(d)(2)-(4) (requiring that incidents beinvestigated and appropriate action taken)

LSS does not have an effective incident management andquality improvement system For instance LSS does not audit toconfirm that significant resident injuries are reported forinvestigation Many abuse and neglect investigation files thatwe reviewed indicated that staff had knowledge of an incident butfailed to report it Further staff were not corrected forfailing to report A few examples of staffrsquos failure to reportabuse and neglect include

bull On February 7 2005 SH ingested an orange neonrubber string while on one-to-one supervision No incident report was ever filed nor was aninvestigation opened regarding the staffrsquos failure tosupervise SH properly

bull On August 5 2004 EE ingested stickers while she wassupervised by one-to-one staff Following thisincident staff also failed to file any written reportor investigate neglect

bull On June 15 2004 another LSS resident EN ingesteda nickel while on one-to-one supervision Like the other residents mentioned above there was no report ofthis incident or investigation of neglect

These examples indicate that LSS is experiencing significantunder reporting of incidents Failure by staff to report abuseand neglect places residents at significant risk of immediate andfuture harm

- 19 -

C BEHAVIOR PROGRAMS RESTRAINTS AND HABILITATION

LSSrsquos residents are entitled to ldquothe minimally adequatetraining required by the Constitution as may be reasonablein light of [the residentsrsquo] liberty interests in safety andfreedom from unreasonable restraintsrdquo Youngberg 457 US at322 LSS fails to provide adequate psychological services tomeet the needs of residents with behavior problemsSpecifically LSS (1) provides residents with ineffectivebehavioral programs (2) exposes residents to undue restraintsand (3) provides inadequate habilitation treatment and activityprograms

Generally accepted professional practice requires thatappropriate psychological interventions such as behaviorprograms andor habilitation plans14 be used to address significant behavior problems However many LSS residents whorequire psychological interventions are simply not provided themAs described in more detail below LSSrsquos deficiencies in thisarea substantially hinder treatment of residentsrsquo problembehaviors exposing residents to a significantly increased riskof abuse and compromising residentsrsquo opportunities for placementin a more integrated setting The examples of injurious behaviorset forth above in addition to demonstrating inadequatesupervision and neglect also demonstrate significant weaknessesin LSSrsquos behavioral programming

1 Behavior Programs

Generally accepted professional standards of practiceprovide that behavior programs (1) be based on adequatefunctional assessments (2) be implemented as written and (3) bemonitored and evaluated adequately Ineffective behavior programs increase the likelihood that residents engage in harmfuland inappropriate (rdquomaladaptiverdquo) behaviors subjecting them tounnecessarily restrictive interventions and treatments LSSrsquos behavior programs are ineffective and substantially depart fromgenerally accepted professional standards In particular theyare not based on adequate functional assessments not implementedas written and are not monitored evaluated and revisedadequately

14 Habilitation includes but is not limited toindividualized training education and skill acquisitionprograms developed and implemented by interdisciplinary teams topromote the growth development and independence of individuals

- 20 -

For example HH has been diagnosed with PICA Her psychologist reports that on October 8 2004 she tore open thearmrest of a recliner and attempted to eat the stuffing She also has chewed on the edge of a dining room table a bed sheetand a piece of diaper According to the psychologist testingHH boredom was the underlying cause which indicates that HHdoes not receive adequate habilitation and training HH has a behavior support plan (ldquoBSPrdquo) to address these issues but ratherthan modify the BSP or ensure that it was properly implementedto address her boredom HH was prescribed Zyprexa an atypicalantipsychotic medication and the antidepressant Paxil

a Functional Assessment

Generally accepted professional standards of care for thispopulation dictate that there is an adequate and currentfunctional assessment in all cases prior to the initiation ofpsychological treatment A functional assessment is a professional assessment technique that identifies the particularpositive or negative factors that prompt or maintain achallenging behavior for a given individual By understandingthe causes or ldquofunctionrdquo of challenging behaviorsprofessionals can attempt to reduce or eliminate these factorsrsquoinfluence and thus reduce or eliminate the challengingbehaviors Without such informed understanding of the cause ofbehaviors attempted treatments are arbitrary and ineffective

The functional assessments developed by LSSrsquos psychologystaff are seriously deficient They are somewhat arbitrary andfail to address highly relevant information such as (1) aresidentrsquos background including social history and treatmentexperiences (2) summary behavior data (3) assessment tools usedto determine the function of the behavior (4) medical issuesparticularly health problems that might influence the behavior(5) mental health concerns including clinical diagnoses anddescriptions of clinical or behavioral manifestations associatedwith each diagnosis and (6) recommended treatmentinterventionthat develop new skills and appropriate replacement behaviorsthat adequately substitute for the maladaptive behavior

Without a thorough assessment of the function of theresidentrsquos maladaptive behavior including clearly identifiedappropriate replacement behaviors behavior programs will not besuccessful in modifying the maladaptive behavior As a result of LSSrsquos incomplete assessments numerous residents with behavioraldifficulties and other residents in their proximity haveremained at risk of harm due to ongoing behavior problems thatare not treated effectively

- 21 -

b Behavior Program Implementation

Improper implementation of a behavior program can lead tothe inadvertent reinforcement of maladaptive behaviors as wellexcessive use of restrictive treatments Throughout LSS weobserved numerous incidents of inadequate implementation ofbehavioral support programs

Consistent and correct implementation of appropriatebehavior programs is essential However as stated above thewritten programs themselves are deficient and the inconsistentimplementation of these inadequate programs only magnifies theseinadequacies resulting in a level of care that is grosslyinconsistent with generally accepted professional standards ofcare This poor implementation of programming places LSSrsquosresidents with behavior problems at risk of continued harmcontinued exposure to restrictive interventions and continuedinstitutionalization Many of the problems stem from inadequatecompetency-based training of staff regarding the properimplementation of behavior programs

c Monitoring and Evaluation

Generally accepted professional standards of care requirethat facilities monitor residents who have behavior programs toassess the residentsrsquo progress and the programrsquos efficacyWithout the necessary monitoring and evaluation residents are indanger of being subjected to inadequate and unnecessarilyrestrictive treatment as well as avoidable injuries related tountreated behaviors In this regard the injury data discussedabove particularly regarding human bites provides strongevidence that plans are ineffective

None of the behavior programs we reviewed specified theprocedure used to monitor the resident or supervise staffimplementation of the program and none of the programs providedfor measuring changes in replacement behaviors Further thesafeguard of professional review and monitoring of behaviorsupport services at LSS is woefully inadequate Contrary togenerally accepted professional standards of care there is noprofessional review prior to implementation of BSPs byindividuals with expertise in applied behavior analysis and inthe development and implementation of behavior supports We found no documentation evidencing a review of BSPs forappropriate content completion and protection of individualrights including restraint reduction plans and informed consentfor any restrictive practices which again is contrary togenerally accepted standards of care

- 22 -

The Behavior Support Review Committee (ldquoBSRCrdquo) review forQN diagnosed with Alzheimerrsquos was limited to a review of herpsychotropic medications and a statement that her problembehavior of aggression would be included in her BSP There was no evidence of a review of the BSP itself including whether itprovided for monitoring of the behaviors which the psychotropicmedication was intended to address (ldquotarget behaviorsrdquo) noconsideration of assessment results nor consideration of thehypothesized function of the problem behavior There was also no discussion of the BSPrsquos failure to identify any support for theAlzheimerrsquos diagnosis

d Quality Assurance

There is no ongoing facility-wide tracking of criticalaspects of psychological services at LSS such as the use ofrestraints the use of emergency procedures the development andupdate of functional assessments and staff implementation ofprograms There is no systemic tracking and analysis of the typeof restrictive components contained in BSPs In fact no oneknew basic information such as the number of BSPs that had restrictive components

Additionally all of the BSPs we reviewed failed to provideprecise strategies for measuring the effectiveness of the planThe outcomes currently used by LSS to measure effectiveness arenot indicators of a positive quality of life Instead there isa reliance on the frequency of problem behaviors Although theBSPs all mention collecting data regarding the occurrence ofproblem behaviors no plan addresses the methods used to ensurepromotion of positive replacement behaviors and we found nonethat monitors the individualrsquos use of such behaviors

There is also no systemic review of data reliability at LSSSimilarly the accuracy of behavior data is suspect In this regard problem behaviors are often too poorly defined to bemonitored accurately For example five different behaviorscould be described as ldquoaggressionrdquo and data are recorded asldquoaggressionrdquo when any of the five behaviors is exhibited Cf 42 CFR sect 483440(e)(1) (ldquoData relative to accomplishment of thecriteria specified in client individual program plan objectivesmust be documented in measurable termsrdquo) Consequently thecollected data are not clinically useful

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 16 -

standards of care and places individuals at risk of harmSpecifically the side effects of medications in both areas canhave a far-reaching impact on the individualrsquos health andbehavior Without a system in place to exchange informationbetween these two disciplines treatment altered by one specialtycould destabilize treatment from the other specialty

B Protection from Harm

LSS fails to provide basic oversight of resident care andtreatment critical to ensuring the reasonable safety of itsresidents As described in more detail below LSSrsquos failure toprotect residents from harm stems from inadequate supervisionthe failure to appropriately detect and prevent abuse andneglect and an inadequate incident management systemConsequently residents are exposed to significant harm

1 Inadequate Supervision and Neglect

Our review of facility incident reports and investigationsconfirmed that residents are being subjected to a wide-spreadpattern of harm due to inadequate supervision neglect andpossible abuse The circumstances surrounding the death ofNLU (described in more detail at section IA1 above) inwhich staff failed to call for immediate medical attentionfailed to assist with basic first aid and falsified recordsevidence significant neglect Other examples we identifiedinclude

bull On May 5 2005 a staff person who was assigned one-to-one supervision to ES failed to notice that ES hadfastened a belt around his neck According to LSSrsquosrecords this occurred when the lights were off inESrsquos room two televisions were on and the staffperson was using her personal cell phone

bull On May 9 2005 CS was discovered to have twodecubitus ulcers on her buttocks and another on her shoulder These sores according to LSSrsquos own recordswere a result of workers not changing CSrsquos positionand leaving her lying in urine-soaked diapers

bull NP has PICA (an eating disorder involving themouthing or ingestion of non-food substances)Notwithstanding the identified need to protect NPfrom ingesting nonedible items facility recordsindicate that NP repeatedly has been discoveredchewing or eating harmful objects For example on

- 17 -

April 18 2004 staff discovered NP chewing on apiece of gel cushion on September 28 2004 during aldquodiaper checkrdquo staff discovered a glove coming out ofNPrsquos rectum and on October 25 2004 a ldquoforeignbodyrdquo was discovered in NP during an x-ray

bull On February 18 2004 MK had an x-ray to determine ifhe had a high fecal impaction The x-ray confirmed theimpaction and also revealed that MK had ingested abutton Examination of his clothing revealed severalbuttons were missing from his shirts LSS had removed clothing with buttons from MKrsquos wardrobe but did notaddress the adequacy of his supervision

bull On either June 6 2005 or June 7 2005 QD was foundwith a 15 cut to his face and two black eyes No one reportedly witnessed the cause of the injuries The LSS investigation included a report stating that otherindividuals in the same home had had bruises or injuries during the same approximate time period butincidents that may have caused bruising and injurieshad never been seen Individuals sustaining injurieswere unable to explain what happened Multiple staffmembers including direct care staff and managementstaff stated to us during our visit that ldquomostrdquo of theapproximately 23 residents in the home were intimidatedor frightened by a particular male staff memberassigned to this home on the 200 pm - 1000 pmshift This staff person reportedly has beeninvestigated in the past for similar incidents and wasalways working within the time frame of the reportedinjuries We did not see evidence that LSS took action in response to these residentsrsquo concerns or the patternof injuries and staff assignments

As of the time of our visit 66 of the population at LSShas been injured by another resident badly enough to require morethan first aid Almost 50 of the population was injured byanother peer at least one time from April 2004 to April 2005Individuals at LSS continue to be at risk of resident-to-resident injuries including human bites and fractures Seventy-threeresidents (21 of the LSS population) have been injured fromtheir peersrsquo bites and 41 of these residents (56) requiredmedical attention as a result

Even in instances where known behavioral risks have been communicated staff were unable to respond adequately This is particularly evident in cases of residents causing injuries to

- 18 -

other residents For example UKT was bitten by otherresidents 26 times between May 2003 and May 2005 One resident was responsible for 16 of those bites while another residentcaused five bites As a result of these bites UKT requiredmedical care to her face wrist forearm upper arm shoulder andback

2 Inadequate Incident Management

Generally accepted professional standards of care requirethat facilities gather and assess incident data to identifypotentially problematic trends and to identify implement andmonitor implementation of corrective action Proper incidentinvestigations are also a federal regulatory requirement See 42 CFR sect 483420(d)(2)-(4) (requiring that incidents beinvestigated and appropriate action taken)

LSS does not have an effective incident management andquality improvement system For instance LSS does not audit toconfirm that significant resident injuries are reported forinvestigation Many abuse and neglect investigation files thatwe reviewed indicated that staff had knowledge of an incident butfailed to report it Further staff were not corrected forfailing to report A few examples of staffrsquos failure to reportabuse and neglect include

bull On February 7 2005 SH ingested an orange neonrubber string while on one-to-one supervision No incident report was ever filed nor was aninvestigation opened regarding the staffrsquos failure tosupervise SH properly

bull On August 5 2004 EE ingested stickers while she wassupervised by one-to-one staff Following thisincident staff also failed to file any written reportor investigate neglect

bull On June 15 2004 another LSS resident EN ingesteda nickel while on one-to-one supervision Like the other residents mentioned above there was no report ofthis incident or investigation of neglect

These examples indicate that LSS is experiencing significantunder reporting of incidents Failure by staff to report abuseand neglect places residents at significant risk of immediate andfuture harm

- 19 -

C BEHAVIOR PROGRAMS RESTRAINTS AND HABILITATION

LSSrsquos residents are entitled to ldquothe minimally adequatetraining required by the Constitution as may be reasonablein light of [the residentsrsquo] liberty interests in safety andfreedom from unreasonable restraintsrdquo Youngberg 457 US at322 LSS fails to provide adequate psychological services tomeet the needs of residents with behavior problemsSpecifically LSS (1) provides residents with ineffectivebehavioral programs (2) exposes residents to undue restraintsand (3) provides inadequate habilitation treatment and activityprograms

Generally accepted professional practice requires thatappropriate psychological interventions such as behaviorprograms andor habilitation plans14 be used to address significant behavior problems However many LSS residents whorequire psychological interventions are simply not provided themAs described in more detail below LSSrsquos deficiencies in thisarea substantially hinder treatment of residentsrsquo problembehaviors exposing residents to a significantly increased riskof abuse and compromising residentsrsquo opportunities for placementin a more integrated setting The examples of injurious behaviorset forth above in addition to demonstrating inadequatesupervision and neglect also demonstrate significant weaknessesin LSSrsquos behavioral programming

1 Behavior Programs

Generally accepted professional standards of practiceprovide that behavior programs (1) be based on adequatefunctional assessments (2) be implemented as written and (3) bemonitored and evaluated adequately Ineffective behavior programs increase the likelihood that residents engage in harmfuland inappropriate (rdquomaladaptiverdquo) behaviors subjecting them tounnecessarily restrictive interventions and treatments LSSrsquos behavior programs are ineffective and substantially depart fromgenerally accepted professional standards In particular theyare not based on adequate functional assessments not implementedas written and are not monitored evaluated and revisedadequately

14 Habilitation includes but is not limited toindividualized training education and skill acquisitionprograms developed and implemented by interdisciplinary teams topromote the growth development and independence of individuals

- 20 -

For example HH has been diagnosed with PICA Her psychologist reports that on October 8 2004 she tore open thearmrest of a recliner and attempted to eat the stuffing She also has chewed on the edge of a dining room table a bed sheetand a piece of diaper According to the psychologist testingHH boredom was the underlying cause which indicates that HHdoes not receive adequate habilitation and training HH has a behavior support plan (ldquoBSPrdquo) to address these issues but ratherthan modify the BSP or ensure that it was properly implementedto address her boredom HH was prescribed Zyprexa an atypicalantipsychotic medication and the antidepressant Paxil

a Functional Assessment

Generally accepted professional standards of care for thispopulation dictate that there is an adequate and currentfunctional assessment in all cases prior to the initiation ofpsychological treatment A functional assessment is a professional assessment technique that identifies the particularpositive or negative factors that prompt or maintain achallenging behavior for a given individual By understandingthe causes or ldquofunctionrdquo of challenging behaviorsprofessionals can attempt to reduce or eliminate these factorsrsquoinfluence and thus reduce or eliminate the challengingbehaviors Without such informed understanding of the cause ofbehaviors attempted treatments are arbitrary and ineffective

The functional assessments developed by LSSrsquos psychologystaff are seriously deficient They are somewhat arbitrary andfail to address highly relevant information such as (1) aresidentrsquos background including social history and treatmentexperiences (2) summary behavior data (3) assessment tools usedto determine the function of the behavior (4) medical issuesparticularly health problems that might influence the behavior(5) mental health concerns including clinical diagnoses anddescriptions of clinical or behavioral manifestations associatedwith each diagnosis and (6) recommended treatmentinterventionthat develop new skills and appropriate replacement behaviorsthat adequately substitute for the maladaptive behavior

Without a thorough assessment of the function of theresidentrsquos maladaptive behavior including clearly identifiedappropriate replacement behaviors behavior programs will not besuccessful in modifying the maladaptive behavior As a result of LSSrsquos incomplete assessments numerous residents with behavioraldifficulties and other residents in their proximity haveremained at risk of harm due to ongoing behavior problems thatare not treated effectively

- 21 -

b Behavior Program Implementation

Improper implementation of a behavior program can lead tothe inadvertent reinforcement of maladaptive behaviors as wellexcessive use of restrictive treatments Throughout LSS weobserved numerous incidents of inadequate implementation ofbehavioral support programs

Consistent and correct implementation of appropriatebehavior programs is essential However as stated above thewritten programs themselves are deficient and the inconsistentimplementation of these inadequate programs only magnifies theseinadequacies resulting in a level of care that is grosslyinconsistent with generally accepted professional standards ofcare This poor implementation of programming places LSSrsquosresidents with behavior problems at risk of continued harmcontinued exposure to restrictive interventions and continuedinstitutionalization Many of the problems stem from inadequatecompetency-based training of staff regarding the properimplementation of behavior programs

c Monitoring and Evaluation

Generally accepted professional standards of care requirethat facilities monitor residents who have behavior programs toassess the residentsrsquo progress and the programrsquos efficacyWithout the necessary monitoring and evaluation residents are indanger of being subjected to inadequate and unnecessarilyrestrictive treatment as well as avoidable injuries related tountreated behaviors In this regard the injury data discussedabove particularly regarding human bites provides strongevidence that plans are ineffective

None of the behavior programs we reviewed specified theprocedure used to monitor the resident or supervise staffimplementation of the program and none of the programs providedfor measuring changes in replacement behaviors Further thesafeguard of professional review and monitoring of behaviorsupport services at LSS is woefully inadequate Contrary togenerally accepted professional standards of care there is noprofessional review prior to implementation of BSPs byindividuals with expertise in applied behavior analysis and inthe development and implementation of behavior supports We found no documentation evidencing a review of BSPs forappropriate content completion and protection of individualrights including restraint reduction plans and informed consentfor any restrictive practices which again is contrary togenerally accepted standards of care

- 22 -

The Behavior Support Review Committee (ldquoBSRCrdquo) review forQN diagnosed with Alzheimerrsquos was limited to a review of herpsychotropic medications and a statement that her problembehavior of aggression would be included in her BSP There was no evidence of a review of the BSP itself including whether itprovided for monitoring of the behaviors which the psychotropicmedication was intended to address (ldquotarget behaviorsrdquo) noconsideration of assessment results nor consideration of thehypothesized function of the problem behavior There was also no discussion of the BSPrsquos failure to identify any support for theAlzheimerrsquos diagnosis

d Quality Assurance

There is no ongoing facility-wide tracking of criticalaspects of psychological services at LSS such as the use ofrestraints the use of emergency procedures the development andupdate of functional assessments and staff implementation ofprograms There is no systemic tracking and analysis of the typeof restrictive components contained in BSPs In fact no oneknew basic information such as the number of BSPs that had restrictive components

Additionally all of the BSPs we reviewed failed to provideprecise strategies for measuring the effectiveness of the planThe outcomes currently used by LSS to measure effectiveness arenot indicators of a positive quality of life Instead there isa reliance on the frequency of problem behaviors Although theBSPs all mention collecting data regarding the occurrence ofproblem behaviors no plan addresses the methods used to ensurepromotion of positive replacement behaviors and we found nonethat monitors the individualrsquos use of such behaviors

There is also no systemic review of data reliability at LSSSimilarly the accuracy of behavior data is suspect In this regard problem behaviors are often too poorly defined to bemonitored accurately For example five different behaviorscould be described as ldquoaggressionrdquo and data are recorded asldquoaggressionrdquo when any of the five behaviors is exhibited Cf 42 CFR sect 483440(e)(1) (ldquoData relative to accomplishment of thecriteria specified in client individual program plan objectivesmust be documented in measurable termsrdquo) Consequently thecollected data are not clinically useful

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 17 -

April 18 2004 staff discovered NP chewing on apiece of gel cushion on September 28 2004 during aldquodiaper checkrdquo staff discovered a glove coming out ofNPrsquos rectum and on October 25 2004 a ldquoforeignbodyrdquo was discovered in NP during an x-ray

bull On February 18 2004 MK had an x-ray to determine ifhe had a high fecal impaction The x-ray confirmed theimpaction and also revealed that MK had ingested abutton Examination of his clothing revealed severalbuttons were missing from his shirts LSS had removed clothing with buttons from MKrsquos wardrobe but did notaddress the adequacy of his supervision

bull On either June 6 2005 or June 7 2005 QD was foundwith a 15 cut to his face and two black eyes No one reportedly witnessed the cause of the injuries The LSS investigation included a report stating that otherindividuals in the same home had had bruises or injuries during the same approximate time period butincidents that may have caused bruising and injurieshad never been seen Individuals sustaining injurieswere unable to explain what happened Multiple staffmembers including direct care staff and managementstaff stated to us during our visit that ldquomostrdquo of theapproximately 23 residents in the home were intimidatedor frightened by a particular male staff memberassigned to this home on the 200 pm - 1000 pmshift This staff person reportedly has beeninvestigated in the past for similar incidents and wasalways working within the time frame of the reportedinjuries We did not see evidence that LSS took action in response to these residentsrsquo concerns or the patternof injuries and staff assignments

As of the time of our visit 66 of the population at LSShas been injured by another resident badly enough to require morethan first aid Almost 50 of the population was injured byanother peer at least one time from April 2004 to April 2005Individuals at LSS continue to be at risk of resident-to-resident injuries including human bites and fractures Seventy-threeresidents (21 of the LSS population) have been injured fromtheir peersrsquo bites and 41 of these residents (56) requiredmedical attention as a result

Even in instances where known behavioral risks have been communicated staff were unable to respond adequately This is particularly evident in cases of residents causing injuries to

- 18 -

other residents For example UKT was bitten by otherresidents 26 times between May 2003 and May 2005 One resident was responsible for 16 of those bites while another residentcaused five bites As a result of these bites UKT requiredmedical care to her face wrist forearm upper arm shoulder andback

2 Inadequate Incident Management

Generally accepted professional standards of care requirethat facilities gather and assess incident data to identifypotentially problematic trends and to identify implement andmonitor implementation of corrective action Proper incidentinvestigations are also a federal regulatory requirement See 42 CFR sect 483420(d)(2)-(4) (requiring that incidents beinvestigated and appropriate action taken)

LSS does not have an effective incident management andquality improvement system For instance LSS does not audit toconfirm that significant resident injuries are reported forinvestigation Many abuse and neglect investigation files thatwe reviewed indicated that staff had knowledge of an incident butfailed to report it Further staff were not corrected forfailing to report A few examples of staffrsquos failure to reportabuse and neglect include

bull On February 7 2005 SH ingested an orange neonrubber string while on one-to-one supervision No incident report was ever filed nor was aninvestigation opened regarding the staffrsquos failure tosupervise SH properly

bull On August 5 2004 EE ingested stickers while she wassupervised by one-to-one staff Following thisincident staff also failed to file any written reportor investigate neglect

bull On June 15 2004 another LSS resident EN ingesteda nickel while on one-to-one supervision Like the other residents mentioned above there was no report ofthis incident or investigation of neglect

These examples indicate that LSS is experiencing significantunder reporting of incidents Failure by staff to report abuseand neglect places residents at significant risk of immediate andfuture harm

- 19 -

C BEHAVIOR PROGRAMS RESTRAINTS AND HABILITATION

LSSrsquos residents are entitled to ldquothe minimally adequatetraining required by the Constitution as may be reasonablein light of [the residentsrsquo] liberty interests in safety andfreedom from unreasonable restraintsrdquo Youngberg 457 US at322 LSS fails to provide adequate psychological services tomeet the needs of residents with behavior problemsSpecifically LSS (1) provides residents with ineffectivebehavioral programs (2) exposes residents to undue restraintsand (3) provides inadequate habilitation treatment and activityprograms

Generally accepted professional practice requires thatappropriate psychological interventions such as behaviorprograms andor habilitation plans14 be used to address significant behavior problems However many LSS residents whorequire psychological interventions are simply not provided themAs described in more detail below LSSrsquos deficiencies in thisarea substantially hinder treatment of residentsrsquo problembehaviors exposing residents to a significantly increased riskof abuse and compromising residentsrsquo opportunities for placementin a more integrated setting The examples of injurious behaviorset forth above in addition to demonstrating inadequatesupervision and neglect also demonstrate significant weaknessesin LSSrsquos behavioral programming

1 Behavior Programs

Generally accepted professional standards of practiceprovide that behavior programs (1) be based on adequatefunctional assessments (2) be implemented as written and (3) bemonitored and evaluated adequately Ineffective behavior programs increase the likelihood that residents engage in harmfuland inappropriate (rdquomaladaptiverdquo) behaviors subjecting them tounnecessarily restrictive interventions and treatments LSSrsquos behavior programs are ineffective and substantially depart fromgenerally accepted professional standards In particular theyare not based on adequate functional assessments not implementedas written and are not monitored evaluated and revisedadequately

14 Habilitation includes but is not limited toindividualized training education and skill acquisitionprograms developed and implemented by interdisciplinary teams topromote the growth development and independence of individuals

- 20 -

For example HH has been diagnosed with PICA Her psychologist reports that on October 8 2004 she tore open thearmrest of a recliner and attempted to eat the stuffing She also has chewed on the edge of a dining room table a bed sheetand a piece of diaper According to the psychologist testingHH boredom was the underlying cause which indicates that HHdoes not receive adequate habilitation and training HH has a behavior support plan (ldquoBSPrdquo) to address these issues but ratherthan modify the BSP or ensure that it was properly implementedto address her boredom HH was prescribed Zyprexa an atypicalantipsychotic medication and the antidepressant Paxil

a Functional Assessment

Generally accepted professional standards of care for thispopulation dictate that there is an adequate and currentfunctional assessment in all cases prior to the initiation ofpsychological treatment A functional assessment is a professional assessment technique that identifies the particularpositive or negative factors that prompt or maintain achallenging behavior for a given individual By understandingthe causes or ldquofunctionrdquo of challenging behaviorsprofessionals can attempt to reduce or eliminate these factorsrsquoinfluence and thus reduce or eliminate the challengingbehaviors Without such informed understanding of the cause ofbehaviors attempted treatments are arbitrary and ineffective

The functional assessments developed by LSSrsquos psychologystaff are seriously deficient They are somewhat arbitrary andfail to address highly relevant information such as (1) aresidentrsquos background including social history and treatmentexperiences (2) summary behavior data (3) assessment tools usedto determine the function of the behavior (4) medical issuesparticularly health problems that might influence the behavior(5) mental health concerns including clinical diagnoses anddescriptions of clinical or behavioral manifestations associatedwith each diagnosis and (6) recommended treatmentinterventionthat develop new skills and appropriate replacement behaviorsthat adequately substitute for the maladaptive behavior

Without a thorough assessment of the function of theresidentrsquos maladaptive behavior including clearly identifiedappropriate replacement behaviors behavior programs will not besuccessful in modifying the maladaptive behavior As a result of LSSrsquos incomplete assessments numerous residents with behavioraldifficulties and other residents in their proximity haveremained at risk of harm due to ongoing behavior problems thatare not treated effectively

- 21 -

b Behavior Program Implementation

Improper implementation of a behavior program can lead tothe inadvertent reinforcement of maladaptive behaviors as wellexcessive use of restrictive treatments Throughout LSS weobserved numerous incidents of inadequate implementation ofbehavioral support programs

Consistent and correct implementation of appropriatebehavior programs is essential However as stated above thewritten programs themselves are deficient and the inconsistentimplementation of these inadequate programs only magnifies theseinadequacies resulting in a level of care that is grosslyinconsistent with generally accepted professional standards ofcare This poor implementation of programming places LSSrsquosresidents with behavior problems at risk of continued harmcontinued exposure to restrictive interventions and continuedinstitutionalization Many of the problems stem from inadequatecompetency-based training of staff regarding the properimplementation of behavior programs

c Monitoring and Evaluation

Generally accepted professional standards of care requirethat facilities monitor residents who have behavior programs toassess the residentsrsquo progress and the programrsquos efficacyWithout the necessary monitoring and evaluation residents are indanger of being subjected to inadequate and unnecessarilyrestrictive treatment as well as avoidable injuries related tountreated behaviors In this regard the injury data discussedabove particularly regarding human bites provides strongevidence that plans are ineffective

None of the behavior programs we reviewed specified theprocedure used to monitor the resident or supervise staffimplementation of the program and none of the programs providedfor measuring changes in replacement behaviors Further thesafeguard of professional review and monitoring of behaviorsupport services at LSS is woefully inadequate Contrary togenerally accepted professional standards of care there is noprofessional review prior to implementation of BSPs byindividuals with expertise in applied behavior analysis and inthe development and implementation of behavior supports We found no documentation evidencing a review of BSPs forappropriate content completion and protection of individualrights including restraint reduction plans and informed consentfor any restrictive practices which again is contrary togenerally accepted standards of care

- 22 -

The Behavior Support Review Committee (ldquoBSRCrdquo) review forQN diagnosed with Alzheimerrsquos was limited to a review of herpsychotropic medications and a statement that her problembehavior of aggression would be included in her BSP There was no evidence of a review of the BSP itself including whether itprovided for monitoring of the behaviors which the psychotropicmedication was intended to address (ldquotarget behaviorsrdquo) noconsideration of assessment results nor consideration of thehypothesized function of the problem behavior There was also no discussion of the BSPrsquos failure to identify any support for theAlzheimerrsquos diagnosis

d Quality Assurance

There is no ongoing facility-wide tracking of criticalaspects of psychological services at LSS such as the use ofrestraints the use of emergency procedures the development andupdate of functional assessments and staff implementation ofprograms There is no systemic tracking and analysis of the typeof restrictive components contained in BSPs In fact no oneknew basic information such as the number of BSPs that had restrictive components

Additionally all of the BSPs we reviewed failed to provideprecise strategies for measuring the effectiveness of the planThe outcomes currently used by LSS to measure effectiveness arenot indicators of a positive quality of life Instead there isa reliance on the frequency of problem behaviors Although theBSPs all mention collecting data regarding the occurrence ofproblem behaviors no plan addresses the methods used to ensurepromotion of positive replacement behaviors and we found nonethat monitors the individualrsquos use of such behaviors

There is also no systemic review of data reliability at LSSSimilarly the accuracy of behavior data is suspect In this regard problem behaviors are often too poorly defined to bemonitored accurately For example five different behaviorscould be described as ldquoaggressionrdquo and data are recorded asldquoaggressionrdquo when any of the five behaviors is exhibited Cf 42 CFR sect 483440(e)(1) (ldquoData relative to accomplishment of thecriteria specified in client individual program plan objectivesmust be documented in measurable termsrdquo) Consequently thecollected data are not clinically useful

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 18 -

other residents For example UKT was bitten by otherresidents 26 times between May 2003 and May 2005 One resident was responsible for 16 of those bites while another residentcaused five bites As a result of these bites UKT requiredmedical care to her face wrist forearm upper arm shoulder andback

2 Inadequate Incident Management

Generally accepted professional standards of care requirethat facilities gather and assess incident data to identifypotentially problematic trends and to identify implement andmonitor implementation of corrective action Proper incidentinvestigations are also a federal regulatory requirement See 42 CFR sect 483420(d)(2)-(4) (requiring that incidents beinvestigated and appropriate action taken)

LSS does not have an effective incident management andquality improvement system For instance LSS does not audit toconfirm that significant resident injuries are reported forinvestigation Many abuse and neglect investigation files thatwe reviewed indicated that staff had knowledge of an incident butfailed to report it Further staff were not corrected forfailing to report A few examples of staffrsquos failure to reportabuse and neglect include

bull On February 7 2005 SH ingested an orange neonrubber string while on one-to-one supervision No incident report was ever filed nor was aninvestigation opened regarding the staffrsquos failure tosupervise SH properly

bull On August 5 2004 EE ingested stickers while she wassupervised by one-to-one staff Following thisincident staff also failed to file any written reportor investigate neglect

bull On June 15 2004 another LSS resident EN ingesteda nickel while on one-to-one supervision Like the other residents mentioned above there was no report ofthis incident or investigation of neglect

These examples indicate that LSS is experiencing significantunder reporting of incidents Failure by staff to report abuseand neglect places residents at significant risk of immediate andfuture harm

- 19 -

C BEHAVIOR PROGRAMS RESTRAINTS AND HABILITATION

LSSrsquos residents are entitled to ldquothe minimally adequatetraining required by the Constitution as may be reasonablein light of [the residentsrsquo] liberty interests in safety andfreedom from unreasonable restraintsrdquo Youngberg 457 US at322 LSS fails to provide adequate psychological services tomeet the needs of residents with behavior problemsSpecifically LSS (1) provides residents with ineffectivebehavioral programs (2) exposes residents to undue restraintsand (3) provides inadequate habilitation treatment and activityprograms

Generally accepted professional practice requires thatappropriate psychological interventions such as behaviorprograms andor habilitation plans14 be used to address significant behavior problems However many LSS residents whorequire psychological interventions are simply not provided themAs described in more detail below LSSrsquos deficiencies in thisarea substantially hinder treatment of residentsrsquo problembehaviors exposing residents to a significantly increased riskof abuse and compromising residentsrsquo opportunities for placementin a more integrated setting The examples of injurious behaviorset forth above in addition to demonstrating inadequatesupervision and neglect also demonstrate significant weaknessesin LSSrsquos behavioral programming

1 Behavior Programs

Generally accepted professional standards of practiceprovide that behavior programs (1) be based on adequatefunctional assessments (2) be implemented as written and (3) bemonitored and evaluated adequately Ineffective behavior programs increase the likelihood that residents engage in harmfuland inappropriate (rdquomaladaptiverdquo) behaviors subjecting them tounnecessarily restrictive interventions and treatments LSSrsquos behavior programs are ineffective and substantially depart fromgenerally accepted professional standards In particular theyare not based on adequate functional assessments not implementedas written and are not monitored evaluated and revisedadequately

14 Habilitation includes but is not limited toindividualized training education and skill acquisitionprograms developed and implemented by interdisciplinary teams topromote the growth development and independence of individuals

- 20 -

For example HH has been diagnosed with PICA Her psychologist reports that on October 8 2004 she tore open thearmrest of a recliner and attempted to eat the stuffing She also has chewed on the edge of a dining room table a bed sheetand a piece of diaper According to the psychologist testingHH boredom was the underlying cause which indicates that HHdoes not receive adequate habilitation and training HH has a behavior support plan (ldquoBSPrdquo) to address these issues but ratherthan modify the BSP or ensure that it was properly implementedto address her boredom HH was prescribed Zyprexa an atypicalantipsychotic medication and the antidepressant Paxil

a Functional Assessment

Generally accepted professional standards of care for thispopulation dictate that there is an adequate and currentfunctional assessment in all cases prior to the initiation ofpsychological treatment A functional assessment is a professional assessment technique that identifies the particularpositive or negative factors that prompt or maintain achallenging behavior for a given individual By understandingthe causes or ldquofunctionrdquo of challenging behaviorsprofessionals can attempt to reduce or eliminate these factorsrsquoinfluence and thus reduce or eliminate the challengingbehaviors Without such informed understanding of the cause ofbehaviors attempted treatments are arbitrary and ineffective

The functional assessments developed by LSSrsquos psychologystaff are seriously deficient They are somewhat arbitrary andfail to address highly relevant information such as (1) aresidentrsquos background including social history and treatmentexperiences (2) summary behavior data (3) assessment tools usedto determine the function of the behavior (4) medical issuesparticularly health problems that might influence the behavior(5) mental health concerns including clinical diagnoses anddescriptions of clinical or behavioral manifestations associatedwith each diagnosis and (6) recommended treatmentinterventionthat develop new skills and appropriate replacement behaviorsthat adequately substitute for the maladaptive behavior

Without a thorough assessment of the function of theresidentrsquos maladaptive behavior including clearly identifiedappropriate replacement behaviors behavior programs will not besuccessful in modifying the maladaptive behavior As a result of LSSrsquos incomplete assessments numerous residents with behavioraldifficulties and other residents in their proximity haveremained at risk of harm due to ongoing behavior problems thatare not treated effectively

- 21 -

b Behavior Program Implementation

Improper implementation of a behavior program can lead tothe inadvertent reinforcement of maladaptive behaviors as wellexcessive use of restrictive treatments Throughout LSS weobserved numerous incidents of inadequate implementation ofbehavioral support programs

Consistent and correct implementation of appropriatebehavior programs is essential However as stated above thewritten programs themselves are deficient and the inconsistentimplementation of these inadequate programs only magnifies theseinadequacies resulting in a level of care that is grosslyinconsistent with generally accepted professional standards ofcare This poor implementation of programming places LSSrsquosresidents with behavior problems at risk of continued harmcontinued exposure to restrictive interventions and continuedinstitutionalization Many of the problems stem from inadequatecompetency-based training of staff regarding the properimplementation of behavior programs

c Monitoring and Evaluation

Generally accepted professional standards of care requirethat facilities monitor residents who have behavior programs toassess the residentsrsquo progress and the programrsquos efficacyWithout the necessary monitoring and evaluation residents are indanger of being subjected to inadequate and unnecessarilyrestrictive treatment as well as avoidable injuries related tountreated behaviors In this regard the injury data discussedabove particularly regarding human bites provides strongevidence that plans are ineffective

None of the behavior programs we reviewed specified theprocedure used to monitor the resident or supervise staffimplementation of the program and none of the programs providedfor measuring changes in replacement behaviors Further thesafeguard of professional review and monitoring of behaviorsupport services at LSS is woefully inadequate Contrary togenerally accepted professional standards of care there is noprofessional review prior to implementation of BSPs byindividuals with expertise in applied behavior analysis and inthe development and implementation of behavior supports We found no documentation evidencing a review of BSPs forappropriate content completion and protection of individualrights including restraint reduction plans and informed consentfor any restrictive practices which again is contrary togenerally accepted standards of care

- 22 -

The Behavior Support Review Committee (ldquoBSRCrdquo) review forQN diagnosed with Alzheimerrsquos was limited to a review of herpsychotropic medications and a statement that her problembehavior of aggression would be included in her BSP There was no evidence of a review of the BSP itself including whether itprovided for monitoring of the behaviors which the psychotropicmedication was intended to address (ldquotarget behaviorsrdquo) noconsideration of assessment results nor consideration of thehypothesized function of the problem behavior There was also no discussion of the BSPrsquos failure to identify any support for theAlzheimerrsquos diagnosis

d Quality Assurance

There is no ongoing facility-wide tracking of criticalaspects of psychological services at LSS such as the use ofrestraints the use of emergency procedures the development andupdate of functional assessments and staff implementation ofprograms There is no systemic tracking and analysis of the typeof restrictive components contained in BSPs In fact no oneknew basic information such as the number of BSPs that had restrictive components

Additionally all of the BSPs we reviewed failed to provideprecise strategies for measuring the effectiveness of the planThe outcomes currently used by LSS to measure effectiveness arenot indicators of a positive quality of life Instead there isa reliance on the frequency of problem behaviors Although theBSPs all mention collecting data regarding the occurrence ofproblem behaviors no plan addresses the methods used to ensurepromotion of positive replacement behaviors and we found nonethat monitors the individualrsquos use of such behaviors

There is also no systemic review of data reliability at LSSSimilarly the accuracy of behavior data is suspect In this regard problem behaviors are often too poorly defined to bemonitored accurately For example five different behaviorscould be described as ldquoaggressionrdquo and data are recorded asldquoaggressionrdquo when any of the five behaviors is exhibited Cf 42 CFR sect 483440(e)(1) (ldquoData relative to accomplishment of thecriteria specified in client individual program plan objectivesmust be documented in measurable termsrdquo) Consequently thecollected data are not clinically useful

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 19 -

C BEHAVIOR PROGRAMS RESTRAINTS AND HABILITATION

LSSrsquos residents are entitled to ldquothe minimally adequatetraining required by the Constitution as may be reasonablein light of [the residentsrsquo] liberty interests in safety andfreedom from unreasonable restraintsrdquo Youngberg 457 US at322 LSS fails to provide adequate psychological services tomeet the needs of residents with behavior problemsSpecifically LSS (1) provides residents with ineffectivebehavioral programs (2) exposes residents to undue restraintsand (3) provides inadequate habilitation treatment and activityprograms

Generally accepted professional practice requires thatappropriate psychological interventions such as behaviorprograms andor habilitation plans14 be used to address significant behavior problems However many LSS residents whorequire psychological interventions are simply not provided themAs described in more detail below LSSrsquos deficiencies in thisarea substantially hinder treatment of residentsrsquo problembehaviors exposing residents to a significantly increased riskof abuse and compromising residentsrsquo opportunities for placementin a more integrated setting The examples of injurious behaviorset forth above in addition to demonstrating inadequatesupervision and neglect also demonstrate significant weaknessesin LSSrsquos behavioral programming

1 Behavior Programs

Generally accepted professional standards of practiceprovide that behavior programs (1) be based on adequatefunctional assessments (2) be implemented as written and (3) bemonitored and evaluated adequately Ineffective behavior programs increase the likelihood that residents engage in harmfuland inappropriate (rdquomaladaptiverdquo) behaviors subjecting them tounnecessarily restrictive interventions and treatments LSSrsquos behavior programs are ineffective and substantially depart fromgenerally accepted professional standards In particular theyare not based on adequate functional assessments not implementedas written and are not monitored evaluated and revisedadequately

14 Habilitation includes but is not limited toindividualized training education and skill acquisitionprograms developed and implemented by interdisciplinary teams topromote the growth development and independence of individuals

- 20 -

For example HH has been diagnosed with PICA Her psychologist reports that on October 8 2004 she tore open thearmrest of a recliner and attempted to eat the stuffing She also has chewed on the edge of a dining room table a bed sheetand a piece of diaper According to the psychologist testingHH boredom was the underlying cause which indicates that HHdoes not receive adequate habilitation and training HH has a behavior support plan (ldquoBSPrdquo) to address these issues but ratherthan modify the BSP or ensure that it was properly implementedto address her boredom HH was prescribed Zyprexa an atypicalantipsychotic medication and the antidepressant Paxil

a Functional Assessment

Generally accepted professional standards of care for thispopulation dictate that there is an adequate and currentfunctional assessment in all cases prior to the initiation ofpsychological treatment A functional assessment is a professional assessment technique that identifies the particularpositive or negative factors that prompt or maintain achallenging behavior for a given individual By understandingthe causes or ldquofunctionrdquo of challenging behaviorsprofessionals can attempt to reduce or eliminate these factorsrsquoinfluence and thus reduce or eliminate the challengingbehaviors Without such informed understanding of the cause ofbehaviors attempted treatments are arbitrary and ineffective

The functional assessments developed by LSSrsquos psychologystaff are seriously deficient They are somewhat arbitrary andfail to address highly relevant information such as (1) aresidentrsquos background including social history and treatmentexperiences (2) summary behavior data (3) assessment tools usedto determine the function of the behavior (4) medical issuesparticularly health problems that might influence the behavior(5) mental health concerns including clinical diagnoses anddescriptions of clinical or behavioral manifestations associatedwith each diagnosis and (6) recommended treatmentinterventionthat develop new skills and appropriate replacement behaviorsthat adequately substitute for the maladaptive behavior

Without a thorough assessment of the function of theresidentrsquos maladaptive behavior including clearly identifiedappropriate replacement behaviors behavior programs will not besuccessful in modifying the maladaptive behavior As a result of LSSrsquos incomplete assessments numerous residents with behavioraldifficulties and other residents in their proximity haveremained at risk of harm due to ongoing behavior problems thatare not treated effectively

- 21 -

b Behavior Program Implementation

Improper implementation of a behavior program can lead tothe inadvertent reinforcement of maladaptive behaviors as wellexcessive use of restrictive treatments Throughout LSS weobserved numerous incidents of inadequate implementation ofbehavioral support programs

Consistent and correct implementation of appropriatebehavior programs is essential However as stated above thewritten programs themselves are deficient and the inconsistentimplementation of these inadequate programs only magnifies theseinadequacies resulting in a level of care that is grosslyinconsistent with generally accepted professional standards ofcare This poor implementation of programming places LSSrsquosresidents with behavior problems at risk of continued harmcontinued exposure to restrictive interventions and continuedinstitutionalization Many of the problems stem from inadequatecompetency-based training of staff regarding the properimplementation of behavior programs

c Monitoring and Evaluation

Generally accepted professional standards of care requirethat facilities monitor residents who have behavior programs toassess the residentsrsquo progress and the programrsquos efficacyWithout the necessary monitoring and evaluation residents are indanger of being subjected to inadequate and unnecessarilyrestrictive treatment as well as avoidable injuries related tountreated behaviors In this regard the injury data discussedabove particularly regarding human bites provides strongevidence that plans are ineffective

None of the behavior programs we reviewed specified theprocedure used to monitor the resident or supervise staffimplementation of the program and none of the programs providedfor measuring changes in replacement behaviors Further thesafeguard of professional review and monitoring of behaviorsupport services at LSS is woefully inadequate Contrary togenerally accepted professional standards of care there is noprofessional review prior to implementation of BSPs byindividuals with expertise in applied behavior analysis and inthe development and implementation of behavior supports We found no documentation evidencing a review of BSPs forappropriate content completion and protection of individualrights including restraint reduction plans and informed consentfor any restrictive practices which again is contrary togenerally accepted standards of care

- 22 -

The Behavior Support Review Committee (ldquoBSRCrdquo) review forQN diagnosed with Alzheimerrsquos was limited to a review of herpsychotropic medications and a statement that her problembehavior of aggression would be included in her BSP There was no evidence of a review of the BSP itself including whether itprovided for monitoring of the behaviors which the psychotropicmedication was intended to address (ldquotarget behaviorsrdquo) noconsideration of assessment results nor consideration of thehypothesized function of the problem behavior There was also no discussion of the BSPrsquos failure to identify any support for theAlzheimerrsquos diagnosis

d Quality Assurance

There is no ongoing facility-wide tracking of criticalaspects of psychological services at LSS such as the use ofrestraints the use of emergency procedures the development andupdate of functional assessments and staff implementation ofprograms There is no systemic tracking and analysis of the typeof restrictive components contained in BSPs In fact no oneknew basic information such as the number of BSPs that had restrictive components

Additionally all of the BSPs we reviewed failed to provideprecise strategies for measuring the effectiveness of the planThe outcomes currently used by LSS to measure effectiveness arenot indicators of a positive quality of life Instead there isa reliance on the frequency of problem behaviors Although theBSPs all mention collecting data regarding the occurrence ofproblem behaviors no plan addresses the methods used to ensurepromotion of positive replacement behaviors and we found nonethat monitors the individualrsquos use of such behaviors

There is also no systemic review of data reliability at LSSSimilarly the accuracy of behavior data is suspect In this regard problem behaviors are often too poorly defined to bemonitored accurately For example five different behaviorscould be described as ldquoaggressionrdquo and data are recorded asldquoaggressionrdquo when any of the five behaviors is exhibited Cf 42 CFR sect 483440(e)(1) (ldquoData relative to accomplishment of thecriteria specified in client individual program plan objectivesmust be documented in measurable termsrdquo) Consequently thecollected data are not clinically useful

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 20 -

For example HH has been diagnosed with PICA Her psychologist reports that on October 8 2004 she tore open thearmrest of a recliner and attempted to eat the stuffing She also has chewed on the edge of a dining room table a bed sheetand a piece of diaper According to the psychologist testingHH boredom was the underlying cause which indicates that HHdoes not receive adequate habilitation and training HH has a behavior support plan (ldquoBSPrdquo) to address these issues but ratherthan modify the BSP or ensure that it was properly implementedto address her boredom HH was prescribed Zyprexa an atypicalantipsychotic medication and the antidepressant Paxil

a Functional Assessment

Generally accepted professional standards of care for thispopulation dictate that there is an adequate and currentfunctional assessment in all cases prior to the initiation ofpsychological treatment A functional assessment is a professional assessment technique that identifies the particularpositive or negative factors that prompt or maintain achallenging behavior for a given individual By understandingthe causes or ldquofunctionrdquo of challenging behaviorsprofessionals can attempt to reduce or eliminate these factorsrsquoinfluence and thus reduce or eliminate the challengingbehaviors Without such informed understanding of the cause ofbehaviors attempted treatments are arbitrary and ineffective

The functional assessments developed by LSSrsquos psychologystaff are seriously deficient They are somewhat arbitrary andfail to address highly relevant information such as (1) aresidentrsquos background including social history and treatmentexperiences (2) summary behavior data (3) assessment tools usedto determine the function of the behavior (4) medical issuesparticularly health problems that might influence the behavior(5) mental health concerns including clinical diagnoses anddescriptions of clinical or behavioral manifestations associatedwith each diagnosis and (6) recommended treatmentinterventionthat develop new skills and appropriate replacement behaviorsthat adequately substitute for the maladaptive behavior

Without a thorough assessment of the function of theresidentrsquos maladaptive behavior including clearly identifiedappropriate replacement behaviors behavior programs will not besuccessful in modifying the maladaptive behavior As a result of LSSrsquos incomplete assessments numerous residents with behavioraldifficulties and other residents in their proximity haveremained at risk of harm due to ongoing behavior problems thatare not treated effectively

- 21 -

b Behavior Program Implementation

Improper implementation of a behavior program can lead tothe inadvertent reinforcement of maladaptive behaviors as wellexcessive use of restrictive treatments Throughout LSS weobserved numerous incidents of inadequate implementation ofbehavioral support programs

Consistent and correct implementation of appropriatebehavior programs is essential However as stated above thewritten programs themselves are deficient and the inconsistentimplementation of these inadequate programs only magnifies theseinadequacies resulting in a level of care that is grosslyinconsistent with generally accepted professional standards ofcare This poor implementation of programming places LSSrsquosresidents with behavior problems at risk of continued harmcontinued exposure to restrictive interventions and continuedinstitutionalization Many of the problems stem from inadequatecompetency-based training of staff regarding the properimplementation of behavior programs

c Monitoring and Evaluation

Generally accepted professional standards of care requirethat facilities monitor residents who have behavior programs toassess the residentsrsquo progress and the programrsquos efficacyWithout the necessary monitoring and evaluation residents are indanger of being subjected to inadequate and unnecessarilyrestrictive treatment as well as avoidable injuries related tountreated behaviors In this regard the injury data discussedabove particularly regarding human bites provides strongevidence that plans are ineffective

None of the behavior programs we reviewed specified theprocedure used to monitor the resident or supervise staffimplementation of the program and none of the programs providedfor measuring changes in replacement behaviors Further thesafeguard of professional review and monitoring of behaviorsupport services at LSS is woefully inadequate Contrary togenerally accepted professional standards of care there is noprofessional review prior to implementation of BSPs byindividuals with expertise in applied behavior analysis and inthe development and implementation of behavior supports We found no documentation evidencing a review of BSPs forappropriate content completion and protection of individualrights including restraint reduction plans and informed consentfor any restrictive practices which again is contrary togenerally accepted standards of care

- 22 -

The Behavior Support Review Committee (ldquoBSRCrdquo) review forQN diagnosed with Alzheimerrsquos was limited to a review of herpsychotropic medications and a statement that her problembehavior of aggression would be included in her BSP There was no evidence of a review of the BSP itself including whether itprovided for monitoring of the behaviors which the psychotropicmedication was intended to address (ldquotarget behaviorsrdquo) noconsideration of assessment results nor consideration of thehypothesized function of the problem behavior There was also no discussion of the BSPrsquos failure to identify any support for theAlzheimerrsquos diagnosis

d Quality Assurance

There is no ongoing facility-wide tracking of criticalaspects of psychological services at LSS such as the use ofrestraints the use of emergency procedures the development andupdate of functional assessments and staff implementation ofprograms There is no systemic tracking and analysis of the typeof restrictive components contained in BSPs In fact no oneknew basic information such as the number of BSPs that had restrictive components

Additionally all of the BSPs we reviewed failed to provideprecise strategies for measuring the effectiveness of the planThe outcomes currently used by LSS to measure effectiveness arenot indicators of a positive quality of life Instead there isa reliance on the frequency of problem behaviors Although theBSPs all mention collecting data regarding the occurrence ofproblem behaviors no plan addresses the methods used to ensurepromotion of positive replacement behaviors and we found nonethat monitors the individualrsquos use of such behaviors

There is also no systemic review of data reliability at LSSSimilarly the accuracy of behavior data is suspect In this regard problem behaviors are often too poorly defined to bemonitored accurately For example five different behaviorscould be described as ldquoaggressionrdquo and data are recorded asldquoaggressionrdquo when any of the five behaviors is exhibited Cf 42 CFR sect 483440(e)(1) (ldquoData relative to accomplishment of thecriteria specified in client individual program plan objectivesmust be documented in measurable termsrdquo) Consequently thecollected data are not clinically useful

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 21 -

b Behavior Program Implementation

Improper implementation of a behavior program can lead tothe inadvertent reinforcement of maladaptive behaviors as wellexcessive use of restrictive treatments Throughout LSS weobserved numerous incidents of inadequate implementation ofbehavioral support programs

Consistent and correct implementation of appropriatebehavior programs is essential However as stated above thewritten programs themselves are deficient and the inconsistentimplementation of these inadequate programs only magnifies theseinadequacies resulting in a level of care that is grosslyinconsistent with generally accepted professional standards ofcare This poor implementation of programming places LSSrsquosresidents with behavior problems at risk of continued harmcontinued exposure to restrictive interventions and continuedinstitutionalization Many of the problems stem from inadequatecompetency-based training of staff regarding the properimplementation of behavior programs

c Monitoring and Evaluation

Generally accepted professional standards of care requirethat facilities monitor residents who have behavior programs toassess the residentsrsquo progress and the programrsquos efficacyWithout the necessary monitoring and evaluation residents are indanger of being subjected to inadequate and unnecessarilyrestrictive treatment as well as avoidable injuries related tountreated behaviors In this regard the injury data discussedabove particularly regarding human bites provides strongevidence that plans are ineffective

None of the behavior programs we reviewed specified theprocedure used to monitor the resident or supervise staffimplementation of the program and none of the programs providedfor measuring changes in replacement behaviors Further thesafeguard of professional review and monitoring of behaviorsupport services at LSS is woefully inadequate Contrary togenerally accepted professional standards of care there is noprofessional review prior to implementation of BSPs byindividuals with expertise in applied behavior analysis and inthe development and implementation of behavior supports We found no documentation evidencing a review of BSPs forappropriate content completion and protection of individualrights including restraint reduction plans and informed consentfor any restrictive practices which again is contrary togenerally accepted standards of care

- 22 -

The Behavior Support Review Committee (ldquoBSRCrdquo) review forQN diagnosed with Alzheimerrsquos was limited to a review of herpsychotropic medications and a statement that her problembehavior of aggression would be included in her BSP There was no evidence of a review of the BSP itself including whether itprovided for monitoring of the behaviors which the psychotropicmedication was intended to address (ldquotarget behaviorsrdquo) noconsideration of assessment results nor consideration of thehypothesized function of the problem behavior There was also no discussion of the BSPrsquos failure to identify any support for theAlzheimerrsquos diagnosis

d Quality Assurance

There is no ongoing facility-wide tracking of criticalaspects of psychological services at LSS such as the use ofrestraints the use of emergency procedures the development andupdate of functional assessments and staff implementation ofprograms There is no systemic tracking and analysis of the typeof restrictive components contained in BSPs In fact no oneknew basic information such as the number of BSPs that had restrictive components

Additionally all of the BSPs we reviewed failed to provideprecise strategies for measuring the effectiveness of the planThe outcomes currently used by LSS to measure effectiveness arenot indicators of a positive quality of life Instead there isa reliance on the frequency of problem behaviors Although theBSPs all mention collecting data regarding the occurrence ofproblem behaviors no plan addresses the methods used to ensurepromotion of positive replacement behaviors and we found nonethat monitors the individualrsquos use of such behaviors

There is also no systemic review of data reliability at LSSSimilarly the accuracy of behavior data is suspect In this regard problem behaviors are often too poorly defined to bemonitored accurately For example five different behaviorscould be described as ldquoaggressionrdquo and data are recorded asldquoaggressionrdquo when any of the five behaviors is exhibited Cf 42 CFR sect 483440(e)(1) (ldquoData relative to accomplishment of thecriteria specified in client individual program plan objectivesmust be documented in measurable termsrdquo) Consequently thecollected data are not clinically useful

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 22 -

The Behavior Support Review Committee (ldquoBSRCrdquo) review forQN diagnosed with Alzheimerrsquos was limited to a review of herpsychotropic medications and a statement that her problembehavior of aggression would be included in her BSP There was no evidence of a review of the BSP itself including whether itprovided for monitoring of the behaviors which the psychotropicmedication was intended to address (ldquotarget behaviorsrdquo) noconsideration of assessment results nor consideration of thehypothesized function of the problem behavior There was also no discussion of the BSPrsquos failure to identify any support for theAlzheimerrsquos diagnosis

d Quality Assurance

There is no ongoing facility-wide tracking of criticalaspects of psychological services at LSS such as the use ofrestraints the use of emergency procedures the development andupdate of functional assessments and staff implementation ofprograms There is no systemic tracking and analysis of the typeof restrictive components contained in BSPs In fact no oneknew basic information such as the number of BSPs that had restrictive components

Additionally all of the BSPs we reviewed failed to provideprecise strategies for measuring the effectiveness of the planThe outcomes currently used by LSS to measure effectiveness arenot indicators of a positive quality of life Instead there isa reliance on the frequency of problem behaviors Although theBSPs all mention collecting data regarding the occurrence ofproblem behaviors no plan addresses the methods used to ensurepromotion of positive replacement behaviors and we found nonethat monitors the individualrsquos use of such behaviors

There is also no systemic review of data reliability at LSSSimilarly the accuracy of behavior data is suspect In this regard problem behaviors are often too poorly defined to bemonitored accurately For example five different behaviorscould be described as ldquoaggressionrdquo and data are recorded asldquoaggressionrdquo when any of the five behaviors is exhibited Cf 42 CFR sect 483440(e)(1) (ldquoData relative to accomplishment of thecriteria specified in client individual program plan objectivesmust be documented in measurable termsrdquo) Consequently thecollected data are not clinically useful

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 23 -

e Psychological Staffing

Lack of sufficient psychological and behavior supportservices is a significant cause of LSSrsquos problems in this areaAlthough the Director of Psychological Services is a masters-level psychologist trained and experienced in applied behavioranalysis there is an overwhelming lack of expertise in appliedbehavior analysis among the remaining members of the psychologydepartment The staffrsquos inexperience is exemplified by manyreferences in LSSrsquos records to problem behavior occurring for ldquonoreasonrdquo Separately it appears that LSSrsquos psychology staffingratios are severely lacking we note that the ratio of cliniciansto residents is almost one-half of the generally accepted minimumratio of 125 for a facility serving persons with developmentaldisabilities

2 Restraints

LSS uses several types of mechanical restraints to controlresidentsrsquo behavior including arm splints helmets poseymittens15 restraint chairs restraint boards16 seatbeltsstraight jackets transport jackets wristlets and anklets and4-point and 5-point restraints Staff also often utilize physical and chemical restraints Examples of physicalrestraints include manual holds involving hand arm and leg bearhugs basketholds and horizontal restraints Chemical restraints consist of psychotropic medications administered inresponse to behavioral outbursts

Generally accepted professional standards of care dictatethat restrictive interventions such as these should be included in a behavior program only when justified by the results of anadequate functional assessment Further such intentions shouldonly be used (1) if the person poses an imminent andsubstantial risk of harm to themselves or others (2) after ahierarchy of less restrictive measures has been exhausted orconsidered in a clinically justifiable manner (3) continuouslyonly if proven effective and (4) other than as punishment for

15 ldquoPosey mittensrdquo are similar to boxing gloves They aremade of canvas or plastic and secured at the wrist with velcrometal slide buckles or straps and they serve to prevent theindividual wearing them from using his or her hands

16 A padded rigid board to which an individual is securedface-up See LSSrsquos Operational Procedures Manual 6(g)

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 24 -

the convenience of staff or in the absence of or as analternative to treatment Further such interventions should beterminated as soon as the person is no longer a danger to himselfor others

LSSrsquos use of restraints substantially departs from generallyaccepted professional standards of care and exposes residents toexcessive and unnecessarily restrictive interventions At least 58 residentsrsquo BSP includes manual holds Fifty-three residentsat LSS are subjected to mechanical restraints simply forundefined ldquoinappropriate behaviorrdquo Helmets restraint boardsrestraint chairs posey mittens and arm splints are used assubstitutes for professionally developed and implemented behaviorprograms At least nine residentsrsquo BSPs include a provision forsupine restraint on a restraint board Another 15 residents are subjected to wearing a helmet to prevent access to their headface or mouth due to self-injurious behavior (ldquoSIBrdquo) or PICAand four of these helmets also have a face-guard As of May2005 16 residents were subjected to Posey mittens - 9 for SIBand aggression and another 6 as protective restraint to preventinjury At least eight residents have application of arm splintsor arm guards included in their BSP In addition six residentsare subjected to wearing jumpsuits ldquoto prevent aberrantbehaviorsrdquo All of these residents are subjected to restraintwithout any restraint reduction plan contrary to acceptedstandards of care

Additionally and contrary to generally acceptedprofessional standards of care LSS fails to monitorappropriately the use of restraints This places individuals atLSS at significant risk for physical abuse bodily injury andneglect

a Mechanical Restraints

We found that non-medical restraints17 were used without the support of data from a formal functional analysis or from aprevious treatment trial with a less restrictive interventionIn many of these cases restraints were implemented on anunplanned emergency basis rather than as part of the residentsrsquowritten behavior programs Several residents are kept in

17 Medical restraints on the other hand are restraintsput in place initially for the residentrsquos protection based on amedical reason eg stabilization in connection with a medicalprocedure

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 25 -

restraints for nearly all of their waking hours regardless ofwhether they have exhibited the problem behavior Some residents even sleep in restraints at night when they are not a danger tothemselves or others

For example JD was required to wear a helmet due to SIBfor 24 days in February 2005 26 days in March 2005 23 days inApril 2005 and 28 days in June 2005 Another example involvesAS a 19-year-old man who has been at LSS since July 2003 andwho wears a ldquocollarrdquo mechanical restraint (a device around hisneck preventing him from bringing his arms to his mouth) 24-hours-a-day even when sleeping to prevent him from biting hisarms These examples strongly suggest that less restrictivemeasures either were not utilized prior to placing theseindividuals in restraints or were not implemented effectively

We found that some highly restrictive interventions such astwo-point or four-point mechanical restraints jumpsuits orrestrictive helmets with face masks are labeled as ldquomedicalrdquorestraints Although these restraints may have been legitimatelyput in place initially for the residentrsquos protection based on amedical reason their use has continued for non-medical purposesie behavior control purposes This indicates that the facility has failed to develop appropriate ways to treatresidentsrsquo problem behaviors and that staff utilize restraintseither for their own convenience or to control behaviors in lieuof effective behavioral treatment

LSSrsquos restraint release criteria are also contrary tostandards of care While accepted standards of care and federalregulations (42 CFR sect 483450(d)(6)) provide that release isto occur every hour residents at LSS have been restrained forhours without any release For example DC has had a plansince December 2003 and is subjected to Posey mitts contingent onSIB However she was mechanically restrained 35 hours withoutrelease for exercise Another resident TX has a plan forcontingent use of a mitten restraint for SIB to be applied for aminimum of 20 minutes to a maximum of one hour BB was subjected to contingent use of a helmet and mittens at least 39times in the past year with the length of time restrainedranging from 15 minutes to 35 hours Yet another resident VPhas been mechanically restrained as long as three hours and 45minutes at least two times and two hours and 55 minutes twotimes from March 2004 to March 2005 without release forexercise

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 26 -

b Manual Restraint by Staff

We observed staff also engage in the practice of manualrestraint including the dangerous practice of prone manualrestraint which involves tight physical holds and often stafflying on top of residents who are face-down on the floor The use of extensive manual restraints on persons with developmentaldisabilities poses a significant risk of injury to the residentas illustrated in the following examples

bull On February 6 2005 ES was restrained for 11 minutesby 2 staff in a side-lying position As a result hesustained multiple scratches to his arms wristsshoulders neck middle of back legs ankles andfeet In another incident ES was restrained andsuffered a scratch to his eyelid

bull On June 5 2005 ES again was injured fromrestraints scratching his nose and jaw during a ldquo2-mansideline restraint so nurse could give him a shotrdquo An incident report stated that staff then told ES thathe could either ldquotake [his medication] the hard way orthe easy wayrdquo Reportedly ES chose to ldquotake it thehard wayrdquo and he was grabbed choked and thrown onthe floor slamming his face on the floor He was administered an intramuscular (ldquoIMrdquo) injection inresponse to refusing his medications and was bruised onhis face and neck (There was no documented evidenceof a nurse assessment of these bruises at the time of the incident) The male staff who restrained ES told investigators that he was unable to restrain ES inthe ldquoproperrdquo or ldquoidealrdquo restraint because of theresistance There was no documented evidence that the improper restraint was investigated or that the staffreceived follow-up training on appropriate restraintuse The following day ES was once again restrainedand suffered scratches to his shoulders lip templeand ldquotop part of both legsrdquo

The manner in which staff interacted with ES demonstrates a significant lack of knowledge regarding appropriate behavioralinterventions Repeatedly engaging individuals in physicalconfrontations and restraints in order to administer them medications is an extraordinary departure from generally acceptedprofessional standards of care that places the individuals andtheir staff at significant risk of harm

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 27 -

c Chemical Restraints

Generally accepted professional standards dictate thatchemical restraints should only be utilized as a last resort whenother less restrictive interventions have been ineffectiveHowever some residents at LSS receive chemical restraints on aregular basis This practice strongly suggests that theirbehavioral treatment regimen is not adequate to address theirbehaviors Forty residents at LSS are subjected to chemicalrestraints often described by LSS as ldquoemergency medicationsrdquo18

Further the majority of BSPs reviewed contained a pro formaprovision for the use of emergency medication in addition tomechanicalmanual restraint ldquo[Name]rsquos BSP includes emergencymedications lsquoafter two restraints and still agitatedrsquordquo Chemical restraints if used at all to control behavioral problems shouldbe prescribed only in unusual cases to address specified andindividualized behaviors and for limited periods of timeFurther a physician should promptly conduct a face-to-faceassessment of each individual receiving a chemical restraintLSSrsquos use of chemical restraints substantially departs from thesegenerally accepted professional standards of care

One resident CC received chemical restraints on 60occasions in a six-month period without any documented assessmentto justify the need for such drugs In another case WQ waschemically restrained 14 times in 35 days yet there was nodocumentation that either her psychiatrist or her IDT was awareof how many restraints she was receiving As discussed above atsection IA2c psychotropic medications use at LSS is notappropriately assessed by the Psychotropic Review Clinic or bythe individuals IDT This lapse places residents at significantrisk of harm

18 In fact for 34 of those persons the restraints areclassified as ldquoemergency medicationrdquo The distinction LSS makes between chemical restraint and emergency medication is not clearbut LSSrsquos use of standing orders for ldquoemergency medicationrdquoinappropriately confuses ldquostatrdquo medications which should beprescribed in response to a single unexpected emergency withldquostandingrdquo or ldquopro re natardquo (ldquoPRNrdquo) medications which should beprescribed in response to an expected occurrence eg painmedication if an individual expresses discomfort following aninvasive medical procedure

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 28 -

d LSS Continues the Use of Restraint Even When Proven Ineffective

When a restrictive intervention is effective in preventingor limiting a residentrsquos targeted behavior the need for theintervention should decrease over time LSS however continuesto utilize highly restrictive interventions with numerousresidents often for escalating periods of time even when therestraint appears to be ineffective

For example KKH wears a custom helmet with a ldquolongfaceguardrdquo continuously 50 minutes on and 10 minutes offHowever during the 10 minutes off KKH must wear a helmetwithout a faceguard and mitts to prevent PICA Similarly UXwho has a problem with SIB is subjected to arm splints UX also wears Posey mitts to prevent removal of the splints and ahard shell helmet with ear protectors and face shield Another resident UV is restrained 40 minutes of every waking hourwith 20 minutes out of restraint At night he is restrainedwith arm splints until he falls asleep and continues to berestrained with Posey mitts to prevent scratching his earsResidents SH and TK wear jumpsuits to prevent PICA

Although the facility collects data regarding the use ofrestraints it does not appear that the data lead toreconsideration of alternative methods of dealing with theresidentsrsquo targeted behaviors or modification of residentsrsquobehavior programs Moreover contrary to generally acceptedstandards there is no procedure whereby an increasing number ofrestrictive interventions trigger a review of a residentrsquosbehavioral treatment by the entire treatment team

We were unable to find any evidence that these individualsrsquobehavioral problems in any way improved as a result of thesefundamentally regressive interventions Notwithstanding theexistence of widely-used indeed generally accepted behavioralinterventions that have had demonstrated success resolvingsimilar behaviors in populations like that of LSS these LSSresidents would appear relegated to spend the rest of their livesencased in barred helmets arm splints and hand mitts While undoubtedly well-intended LSSrsquos choice of behavioralinterventions cannot be readily viewed as humane in effect

3 Habilitation Treatment and Activity Programming

LSSrsquos residents are entitled to adequate habilitativetreatment to ensure safety and facilitate their ability tofunction freely from restraints LSSrsquos habilitation treatment

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 29 -

services and activity programming substantially depart fromgenerally accepted professional standards of care As a resultresidentsrsquo skills are allowed to deteriorate and they are deniedthe opportunity to live in more integrated settings

Many LSS residents receive little meaningful trainingDuring our visit we observed a low level of staff interactionwith residents On several occasions during periods of expectedactivity we saw numerous residents sitting unengaged in chairseven though staff were present When residents are not providedwith adequate habilitation treatment programming not only arethey less likely to learn adaptive behaviors they are morelikely to seek attention through maladaptive behaviors such asaggression and self-injury19 Since a lack of meaningful activityoften exacerbates behavior problems the result is an increase inthe use of restraints

The lack of adequate activity programming is due in partto inadequate training and supervision provided to direct carestaff Even for those residents whose habilitation plans calledfor meaningful activities LSS fails to provide staff withadequate training on how to implement habilitation plansSeparately many habilitation programs were quite poor Examplesof counter-productive habilitative programs include

bull A ldquonutrition training sessionrdquo involving passing aplacard picture of a hotdog among residents whoengaged in self-injurious behavior and lacked typicalcommunication skills and asking them to identify theitem As we observed one of the residents attemptedto eat the cardboard hotdog

bull Attempting for several years to teach HQ to tell timeby having him set his alarm clock for 15 minutes a dayThis exercise is not functional it is highly unlikelyto enable HQ to tell time

LSSrsquos programs and services lack function and relevance and areprovided outside the natural context Consequently residentsfail to acquire skills that will enable them to live safely freefrom restraints

19 In this regard the identified function of nearly alldocumented problem behaviors at LSS is staff attention

- 30 -

4 Speech and Communications

If communication skills deteriorate or are not developedresidents are more likely to be unable to convey basic needs andconcerns are more likely to engage in maladaptive behavior as aform of communication and are more likely to be at risk ofbodily injury unnecessary psychotropic medications andpsychological harm from having no means to express needs andwants Lack of communication skills also will make it more difficult for staff to recognize and diagnose health issues suchas pain LSS fails to provide its residents with adequate andappropriate communication services There is an obvious absence of communication assessment strategies that identifycommunication needs and corresponding supports

LSSrsquos speech services are insufficient to meet thesignificant needs of its residents In particular the facilityfails to provide residents with a needs assessment that addressesthe residentrsquos ability to communicate whether the resident hasany swallowing disorders and whether the resident should receivealternative or augmentative communication devices The communication plans that LSS provides do not seek to enhancecommunication skills and safe eating and swallowing practicesMoreover monitoring of the plansrsquo implementation is notadequate Further the absence of information in LSSrsquos plans ofcare regarding the residentrsquos unique communication abilities themanner in which the resident communicates his or her needs andthe limitations of his or her ability constitutes a significantdeparture from generally accepted standards of care

These weaknesses appear to derive from a severe shortage ofresources to meet communication needs By LSSrsquos own statistics321 of the 344 residents at LSS have been diagnosed with acommunication disorder and 214 of those residents have a severeneed for communication services Yet only one part-timemasters-level speech professional is contracted to provideservices to residents with a communication disorder

Additionally LSS fails to provide any augmentative andalternative communication (ldquoAACrdquo) evaluations and services AAC devices (eg communication boards electronic devices etc)are used by individuals who have the capacity to communicate withothers but who have impairments that interfere with theirability to do so verbally AAC devices enable individuals who otherwise would be unable to do so to explain their medical(eg pain illness symptoms etc) or other problems (egabuse neglect etc) AAC devices can be critical to communityplacement and independent living opportunities Contrary to

- 31 -

generally accepted professional standards of care LSS has nopolicy regarding the provision of an AAC to residents with a needfor communication assistance

This failure to provide adequate communication servicescauses significant harm to residents For example SE now 40years old has lived at LSS since the age of five SE was hospitalized for several weeks in March 2004 due to a ldquosevererdquourinary tract infection that required special cauterizationUpon release from the hospital SE had ldquodramatic increases inSIB and tissue damagerdquo The IDT opined that the increases in SIBldquomay be due to pain or discomfort as he cried moaned shook aswell as episodes of feeling hot to the touch and sweating He calmed after given pain medication It became clear he required restraint to prevent further injury caused by his SIBrdquoHis BSP was revised to include the use of a helmet and mitt restraints and Atvian three times a day for anxiety There is no documented evidence of strategies to assist staff in recognizingSErsquos manner of communicating pain for early detection or thatcommunication intervention has been developed so SE does nothave to go to the extreme of causing severe injury to himself tocommunicate his need for assistance

D SERVING RESIDENTS IN THE MOST INTEGRATED SETTING

Texas is failing to serve residents of LSS in the mostintegrated setting appropriate to their individualized needs inviolation of Title II of the ADA and the regulations promulgatedthereunder One such regulation ndash the ldquointegration regulationrdquo ndashprovides that ldquo[a] public entity shall administer servicesprograms and activities in the most integrated settingappropriate to the needs of qualified individuals withdisabilitiesrdquo 28 CFR sect 35130(d) The preamble to theregulations defines ldquothe most integrated settingrdquo to mean asetting ldquothat enables individuals with disabilities to interactwith non-disabled persons to the fullest extent possiblerdquo28 CFR sect 35 App A at 450

In construing the anti-discrimination provision contained inTitle II of the ADA the Supreme Court has held thatldquo[u]njustified [institutional] isolation is properlyregarded as discrimination based on disabilityrdquo Olmstead v LC 527 US 581 597 600 (1999) Specifically the Courtestablished that States are required to provide community-basedtreatment for persons with developmental disabilities when theStatersquos treatment professionals have determined that communityplacement is appropriate provided that the transfer is notopposed by the affected individual and the placement can be

- 32 -

reasonably accommodated taking into account the resourcesavailable to the State and the needs of others with mental disabilities Id at 602 607

Further President Bush as part of his New FreedomInitiative has decreed it a major priority for hisAdministration to remove barriers to equality and to expandopportunities available to Americans living with disabilitiesAs one step in implementing the New Freedom Initiative thePresident on June 18 2001 signed Executive Order No 13217entitled ldquoCommunity-Based Alternatives for Individuals withDisabilitiesrdquo This Order emphasized that unjustified isolationor segregation of qualified individuals with disabilities ininstitutions is a form of prohibited discrimination and that theUnited States is committed to community-based alternatives forindividuals with disabilities Exec Order No 13217sectsect 1(a)-(c) 66 Fed Reg 33155 (June 18 2001)

As to the residents of LSS the State of Texas has not takenadequate steps regarding (1) community placements(2) assessments (3) communication of information on communityresources to residents guardians and family members and(4) execution of the discharge process As a consequenceindividuals who desire to live in the community and whoreasonably can be accommodated there are denied the opportunityto live and work in more integrated settings in violation of theStatersquos obligations under Title II of the ADA

1 Inadequate Community Placements

LSS does not have a systematic transition and dischargeplacement planning process that actively seeks to place in a moreintegrated setting individuals who can be accommodated thereDuring our visit we interacted with a number of remarkablycapable individuals Their presence at LSS provided a strongindication that the State is failing to serve in a moreintegrated setting individuals who can be reasonably accommodatedthere In 2003 only eight individuals were placed in community-based facilities The following year that number dropped to 6individuals As of March 2005 only two individuals had beenplaced outside LSS

2 Inadequate Assessments

Generally accepted standards regarding the transition ofpersons with developmental disabilities from institutions to thecommunity require that treatment teams carefully evaluate theneeds of each individual by taking into account the personrsquos

- 33 -

strengths limitations and preferences and identify services tobe provided in the most integrated setting appropriate to theindividualrsquos needs LSS has no comprehensive facility policy bywhich to guide transitions from the institution to communityliving arrangements Without such a roadmap on how to constructan appropriate placement transition planning is inconsistent andineffective

Similarly successful implementation of community transitiondepends on the development of a transition plan that sets forthan action plan identifying the individualrsquos strengthsweaknesses and preferences needed individual supports in thecommunity along with time lines by which specified staff are todevelop the supports a list of all assistive devices being usedcurrently or still needed for placement to occur a list ofactivities to be completed before during and after transitionand requirements for ldquofollow alongrdquo after a placement hasoccurred

Contrary to the requirements of the ADA LSSrsquosinterdisciplinary teams appear to endorse the retention ofindividuals in the institution The teams do not developcomplete analyses of how and where each resident can beappropriately served in the most integrated setting LSS fails to provide treatment to individuals in the most integratedsetting appropriate to their needs as determined by professionaljudgment LSS fails to exercise professional judgment todetermine the individualrsquos appropriateness for community-basedplacement to determine criteria for discharge to identifyresources necessary to facilitate the placement and to develop aschedule for instituting the placement

LSSrsquos interdisciplinary teams assert that LSS is the mostintegrated setting even for those residents who have communicatedtheir desires for community placement For example despiteMHrsquos stated goal to live in a home or group home MHrsquos programplan states that LSS remains her most integrated setting MH is described as ldquoverbal and able to express her own opinionrdquoHowever her representative from the Texas Mental RetardationAuthority seeks to have her remain at LSS while providing norationale or criteria for discharge The unsubstantiated conclusion that LSS is her most integrated setting is highlyquestionable

- 34 -

II REMEDIAL MEASURES

To remedy the identified deficiencies and protect theconstitutional and statutory rights of LSSrsquos residents Texasshould implement promptly at a minimum the remedial measuresset forth below

A Health Care

1 General Medical Services

The facility should ensure that residents of LSS receiveroutine preventative and emergency medical and dental careconsistent with current generally accepted professionalstandards LSS should ensure that residents with health problemsare identified assessed diagnosed and treated in a timelymanner consistent with current generally accepted standards ofcare Specifically the facility should

a Develop and implement strategies to secureand retain adequate numbers of trainednursing staff

b Ensure that nursing care plans includeindividualized proactive interventionsensure that individuals who are identified as ldquoat riskrdquo or ldquohigh riskrdquo are identifiedmonitored consistent with their risk statusand treated according to generally acceptedpractices

c Develop a system to analyze and monitor theuse of ldquopro re natardquo (as-needed) medicationson a regular basis

d Develop a system to analyze and addressmedication variances on a regular basis

e Develop and implement an adequate system ofdocumentation to ensure timely accurate andthorough recording of all medical and nursingcare provided to LSSrsquos residents ensure thatmenses records monthly breast examinationsvital signs and bowel management records aretimely entered Ensure that internal audits and chart reviews are regularly conducted toidentify areas of weakness or strength

- 35 -

f Check emergency equipment on every shift anddocument that it is in full working order

g Provide competency-based training consistentwith generally accepted professionalstandards of care to staff in the areas ofbasic emergency response and first aidinfection control procedures skin care mealplans and sanitation of adaptive equipment

h Develop a system of pharmacy review toappropriately identify adverse druginteractions and recommend follow-up asneeded including medical and laboratorytests

i Provide quality assurance programs includingmedical peer review and quality improvementsystems to regularly evaluate the adequacyof medical care

j Ensure that comprehensive dental assessmentsare recorded in the medical record

2 Occupational and Physical Therapy ServicesPhysical and Nutritional Management

The facility should ensure that residents of LSS receiveadequate and appropriate assessment and treatment by occupationaland physical therapy services consistent with current generallyaccepted professional standards of practice The facility shouldensure that there are a sufficient number of adequately trainedtherapy staff adequate resources and quality improvementprocedures to ensure adequate therapy services includingphysical and nutritional management services to residents inneed Specifically the facility should

a Develop and implement a system to regularlyevaluate and document the status of residents who require therapy services includingbaseline data utilizing generally acceptedmeasurement standards and status updates atregular intervals

b Provide adequate levels of specializedtraining to members of the PhysicalNutritional Management Team to ensure thatservices are provided on the basis of

- 36 -

current generally accepted standards ofpractice

c Identify all individuals at LSS who havephysical and nutritional management needs anddevelop and implement treatment interventionsto address the needs Develop meal plansthat provide staff clear individualizedinstructions regarding necessary supports(eg positioning and food texture) to keepindividuals safe during mealtimes

d Develop and implement a system to monitordocument and respond to individual triggersacross normal life activities related todysphagia regularly review all dysphagiamonitoring data

e Develop competency-based training for all LSSstaff who assist individuals with dysphagiaor choking risks

3 Psychiatric Services

No resident should receive psychotropic medications withouthaving first been thoroughly evaluated and diagnosed according tocurrent professional standards of care including sufficientdocumentation to withstand clinical scrutiny More particularlythe facility should

a Develop standard psychological andpsychiatric assessment and interviewprotocols for reliably reaching a psychiatricdiagnosis for individuals with mild andmoderate mental retardation and standard protocols for individuals with severe andprofound mental retardation Use these protocols to assess each person uponadmission for possible psychiatricdisorder(s)

b Undertake a thorough psychiatricevaluationwork up of all individualscurrently residing at LSS provide aclinically justifiable current diagnosis foreach individual and remove all diagnoseswhich cannot be clinically justified

- 37 -

c As to all residents residing at the facilityreceiving psychotropic medications undertakea new psychiatric consultation to ensure thatall such medications are appropriate and arespecifically matched to current clinicallyjustifiable diagnoses

d Ensure that each psychotropic medication isprescribed in its appropriate therapeuticrange

e Ensure that an interdisciplinary process isutilized at Psychotropic Review Clinics andensure that the following persons attendthe individual the primary care physicianand members of the interdisciplinary team

f If more than one drug is prescribed for thesame indication provide a particularizedjustification at the mechanism level for thepolypharmacy and eliminate all polypharmacythat cannot be justified at the mechanismlevel

g In all prescriptions and psychiatricconsults specify the marker or targetvariables for each drug and the expected timeline for the effects to be evident Monitor the use of each such medication against themarkers or target variables that have beenidentified to evaluate its effect Reassess diagnoses and treatments as appropriate

h Ensure that where psychotropic medicationsare used ongoing consideration is given tothe potential impact of the individualsother medications and the impact on otheraspects of the individuals health

i Develop and implement a system to assess andrefer individuals for individual and grouptherapy as necessary

j Develop and implement a system to evaluateand track the use of pre-medications byoutcomes including injury and cognitivedeficiency alert the psychiatrist when suchmedications are utilized and initiate

- 38 -

programs to reduce the use of suchmedications through de-sensitizationprograms

k Develop and implement a system forcollaboration between the psychiatrist andthe neurologist to treat residents who have amental illness and a seizure disorder

B Protection from Harm

Incidents involving injury and unusual incidents should bereliably and accurately reported and investigated withappropriate follow-up More particularly LSS should

1 Ensure that incidents involving injury and unusualincidents are tracked and analyzed to identifyroot causes

2 Ensure that analyses are transmitted to therelevant disciplines and direct-care areas forresponsive action and responses are monitored toensure that appropriate steps are taken

3 Ensure that assessments are conducted to determine whether root causes have been addressed and ifnot ensure that appropriate feedback is providedto the responsible disciplines and direct-careareas

4 Ensure that all staff and (to the extent possible)residents are trained adequately on processes forreporting abuse and neglect

C Behavior Programs Restraints and Habilitation

1 Behavioral Programs

Behavioral data used in forming psychological assessmentsshould be current accurate and complete behavioral assessmentsshould be complete and substantiated treatments should be gearedtoward improving the individuals quality of life and all of theforegoing should be implemented according to current professionalstandards of care including with documentation sufficient towithstand clinical scrutiny More particularly LSS should

- 39 -

a Develop standard protocols for efficientaccurate collection of behavioral dataincluding relevant contextual information

b Develop standard psychological assessment andinterview protocols Ensure in these protocols that possible medical psychiatricor other motivations for target behaviors areconsidered

c Use these protocols to ensure that functionalassessments and findings about behaviors areadequately substantiated current andcomplete In this regard ensure that otherpotential functions have been assessed andexcluded

d Ensure that behavioral plans are written at alevel that can be understood and implementedby direct care staff

e Ensure that outcomes of behavioral plansinclude fundamental objectives such asreduction in use of medication enhancedlearning opportunities and greater communityintegration

f Ensure that outcomes are frequentlymonitored and that assessments andtreatments are reevaluated promptly if targetbehaviors do not improve

g Ensure that the psychologist-to-residentratio is adequate to support both residentsneeding behavior programs and the facilitysgeneral population

h Ensure that psychiatric disorders orconditions that require primary oradjunctive psychopharmacological treatmentare distinguished from essentially learning-based behavior problems that requirebehavioral or other interventions Expresslyidentify those that have overlap Provide appropriate integrated treatment

i Ensure that behavior plans reflect anassessment in a manner that will permit

- 40 -

clinical review of medical condition(s)psychiatric treatment and the use and impactof psychotropic drugs

2 Restraints and Restrictive Controls

Any device or procedure that restricts limits or directs apersons freedom of movement (including but not limited tomechanical restraints physical or manual restraints chemicalrestraints or time out procedures) (Restrictive Controls)should be permissible only as a last resort More specificallyLSS should

a Develop and implement a policy on restraintsand restrictive measures that comports withcurrent professional standards

b Eliminate use of mechanical restraints from all behavior plans and programs and limit useof mechanical restraints to true emergencysituations

c Eliminate prone holds in all circumstances

d Eliminate as needed or standing ordersfor Restrictive Controls

e Eliminate use of all other Restrictive Controls except

(i) when active treatment strategieshave been attempted or consideredin a clinically justifiable mannerand would not protect the person orothers from harm

(ii) other less intrusive orrestrictive methods have been ineffective and

(iii) as a planned approvedintervention when a personsbehavior poses an immediate risk ofharm to self or others

f Ensure that an individual in restraint is given appropriate opportunities fortoileting nourishment and exercise of

- 41 -

restrained limbs and is released fromrestraint as soon as he or she does not posean immediate risk of harm to any person

g Convene an interdisciplinary team to reviewand revise as appropriate the behaviorsupport plan of any individual placed inrestraints more than three times in any four-week period

h Provide ongoing competency-based training forall psychology supervisory and direct carestaff on treatment and behavioral interventions including the proper use ofrestraints and on data collection regardingrestraint use

i Ensure that only the least restrictiverestraint techniques necessary are utilizedand that restraints are never used as a substitute for adequate behavioralinterventions as punishment or for theconvenience of staff

j Maintain quality assurance oversight toensure that restraint use is proper andaccurately tracked

3 Habilitation

LSS should provide its residents with adequate habilitationincluding but not limited to individualized training educationand skill acquisition programs developed and implemented topromote the growth development and independence of eachresident to minimize regression and loss of skills and toensure reasonable safety security and freedom from undue use ofrestraint More specifically LSS should

a Formalize habilitation planning protocolspolicies and procedures consistent withgenerally accepted professional standards ofcare for use throughout LSS

b Provide staff competency-based training onthe development of individualizedhabilitation plans and their implementation

- 42 -

c Develop and implement individualizedhabilitation programming directly matched toeach residentrsquos goals interests needs andlifestyle preferences

d Monitor and analyze the efficacy of theindividualized planning and implementationprocess Each individualized plan shouldhave outcome measures that specify actionsteps and training strategies and relatedtarget dates and responsible staff Revise programming as appropriate based onoutcomes

D Serving Persons in the Most Integrated SettingAppropriate to Their Individualized Needs

1 Develop and implement comprehensive formalguidelines policies and procedures fortransition planning These should include at aminimum target dates measurable outcomestraining and transition strategies andresponsible staff

2 Assess the specific characteristics of the mostappropriate setting and support needs for eachresident of LSS Assessments (for new admissions)should be done at admission Periodically updatethe assessments for individuals who remain at the facility for extended periods of time

3 If it is determined that a more integrated settingwould appropriately meet the individuals needspromptly develop and implement with appropriateconsent a transition plan that specifies actionsnecessary to ensure a safe successful transitionfrom the facility to a more integrated settingthe names and positions of those responsible forthese actions and corresponding time frames

4 Provide adequate education about availablecommunity placements to residents and theirfamilies or guardians to enable them to makeinformed choices

5 Provide adequate staff training and resources toensure timely and adequate transition planning

- 43 -

The collaborative approach that the parties have taken thusfar has been productive We hope to continue working with theState in an amicable and cooperative fashion to resolve ouroutstanding concerns regarding LSS

Please note that this findings letter is a public documentand it will be posted on the Civil Rights Divisionrsquos websiteWhile we will provide a copy of this letter to any individual orentity upon request as a matter of courtesy we will not postthis letter on the Civil Rights Divisionrsquos website until 10calendar days from the date of this letter

Provided our cooperative relationship continues we alsowould be willing to send our expert consultantsrsquo evaluations ofthe facility under separate cover These reports are not publicdocuments Although the reports are our expert consultantsrsquo workand do not necessarily represent the official conclusions of theDepartment of Justice their observations analyses andrecommendations provide further elaboration of the issuesdiscussed in this letter and offer practical assistance inaddressing them

We are obligated by statute to advise you that in theunexpected event that we are unable to reach a resolutionregarding our concerns the Attorney General may institute alawsuit pursuant to CRIPA to correct deficiencies of the kindidentified in this letter forty-nine days after appropriateofficials have been notified of them 42 USC sect 1997b(a)(1)We would prefer however to resolve this matter by workingcooperatively with you and we are confident that we will be ableto do so in this case The lawyers assigned to this matter willbe contacting your attorneys to discuss this matter in furtherdetail If you have any questions regarding this letter pleasecall Shanetta Y Cutlar Chief of the Civil Rights DivisionrsquosSpecial Litigation Section at 202-514-0195

Sincerely

s Wan J KimWan J Kim Assistant Attorney General

- 44 -

cc The Honorable Greg AbbottAttorney GeneralState of Texas

Adelaide Horn Commissioner Texas Department of Aging and Disability Services

Nancy CondonSuperintendentLSS State School

Richard B Roper IIIUnited States Attorney for theNorthern District of Texas

- 31 -

generally accepted professional standards of care LSS has nopolicy regarding the provision of an AAC to residents with a needfor communication assistance

This failure to provide adequate communication servicescauses significant harm to residents For example SE now 40years old has lived at LSS since the age of five SE was hospitalized for several weeks in March 2004 due to a ldquosevererdquourinary tract infection that required special cauterizationUpon release from the hospital SE had ldquodramatic increases inSIB and tissue damagerdquo The IDT opined that the increases in SIBldquomay be due to pain or discomfort as he cried moaned shook aswell as episodes of feeling hot to the touch and sweating He calmed after given pain medication It became clear he required restraint to prevent further injury caused by his SIBrdquoHis BSP was revised to include the use of a helmet and mitt restraints and Atvian three times a day for anxiety There is no documented evidence of strategies to assist staff in recognizingSErsquos manner of communicating pain for early detection or thatcommunication intervention has been developed so SE does nothave to go to the extreme of causing severe injury to himself tocommunicate his need for assistance

D SERVING RESIDENTS IN THE MOST INTEGRATED SETTING

Texas is failing to serve residents of LSS in the mostintegrated setting appropriate to their individualized needs inviolation of Title II of the ADA and the regulations promulgatedthereunder One such regulation ndash the ldquointegration regulationrdquo ndashprovides that ldquo[a] public entity shall administer servicesprograms and activities in the most integrated settingappropriate to the needs of qualified individuals withdisabilitiesrdquo 28 CFR sect 35130(d) The preamble to theregulations defines ldquothe most integrated settingrdquo to mean asetting ldquothat enables individuals with disabilities to interactwith non-disabled persons to the fullest extent possiblerdquo28 CFR sect 35 App A at 450

In construing the anti-discrimination provision contained inTitle II of the ADA the Supreme Court has held thatldquo[u]njustified [institutional] isolation is properlyregarded as discrimination based on disabilityrdquo Olmstead v LC 527 US 581 597 600 (1999) Specifically the Courtestablished that States are required to provide community-basedtreatment for persons with developmental disabilities when theStatersquos treatment professionals have determined that communityplacement is appropriate provided that the transfer is notopposed by the affected individual and the placement can be

- 32 -

reasonably accommodated taking into account the resourcesavailable to the State and the needs of others with mental disabilities Id at 602 607

Further President Bush as part of his New FreedomInitiative has decreed it a major priority for hisAdministration to remove barriers to equality and to expandopportunities available to Americans living with disabilitiesAs one step in implementing the New Freedom Initiative thePresident on June 18 2001 signed Executive Order No 13217entitled ldquoCommunity-Based Alternatives for Individuals withDisabilitiesrdquo This Order emphasized that unjustified isolationor segregation of qualified individuals with disabilities ininstitutions is a form of prohibited discrimination and that theUnited States is committed to community-based alternatives forindividuals with disabilities Exec Order No 13217sectsect 1(a)-(c) 66 Fed Reg 33155 (June 18 2001)

As to the residents of LSS the State of Texas has not takenadequate steps regarding (1) community placements(2) assessments (3) communication of information on communityresources to residents guardians and family members and(4) execution of the discharge process As a consequenceindividuals who desire to live in the community and whoreasonably can be accommodated there are denied the opportunityto live and work in more integrated settings in violation of theStatersquos obligations under Title II of the ADA

1 Inadequate Community Placements

LSS does not have a systematic transition and dischargeplacement planning process that actively seeks to place in a moreintegrated setting individuals who can be accommodated thereDuring our visit we interacted with a number of remarkablycapable individuals Their presence at LSS provided a strongindication that the State is failing to serve in a moreintegrated setting individuals who can be reasonably accommodatedthere In 2003 only eight individuals were placed in community-based facilities The following year that number dropped to 6individuals As of March 2005 only two individuals had beenplaced outside LSS

2 Inadequate Assessments

Generally accepted standards regarding the transition ofpersons with developmental disabilities from institutions to thecommunity require that treatment teams carefully evaluate theneeds of each individual by taking into account the personrsquos

- 33 -

strengths limitations and preferences and identify services tobe provided in the most integrated setting appropriate to theindividualrsquos needs LSS has no comprehensive facility policy bywhich to guide transitions from the institution to communityliving arrangements Without such a roadmap on how to constructan appropriate placement transition planning is inconsistent andineffective

Similarly successful implementation of community transitiondepends on the development of a transition plan that sets forthan action plan identifying the individualrsquos strengthsweaknesses and preferences needed individual supports in thecommunity along with time lines by which specified staff are todevelop the supports a list of all assistive devices being usedcurrently or still needed for placement to occur a list ofactivities to be completed before during and after transitionand requirements for ldquofollow alongrdquo after a placement hasoccurred

Contrary to the requirements of the ADA LSSrsquosinterdisciplinary teams appear to endorse the retention ofindividuals in the institution The teams do not developcomplete analyses of how and where each resident can beappropriately served in the most integrated setting LSS fails to provide treatment to individuals in the most integratedsetting appropriate to their needs as determined by professionaljudgment LSS fails to exercise professional judgment todetermine the individualrsquos appropriateness for community-basedplacement to determine criteria for discharge to identifyresources necessary to facilitate the placement and to develop aschedule for instituting the placement

LSSrsquos interdisciplinary teams assert that LSS is the mostintegrated setting even for those residents who have communicatedtheir desires for community placement For example despiteMHrsquos stated goal to live in a home or group home MHrsquos programplan states that LSS remains her most integrated setting MH is described as ldquoverbal and able to express her own opinionrdquoHowever her representative from the Texas Mental RetardationAuthority seeks to have her remain at LSS while providing norationale or criteria for discharge The unsubstantiated conclusion that LSS is her most integrated setting is highlyquestionable

- 34 -

II REMEDIAL MEASURES

To remedy the identified deficiencies and protect theconstitutional and statutory rights of LSSrsquos residents Texasshould implement promptly at a minimum the remedial measuresset forth below

A Health Care

1 General Medical Services

The facility should ensure that residents of LSS receiveroutine preventative and emergency medical and dental careconsistent with current generally accepted professionalstandards LSS should ensure that residents with health problemsare identified assessed diagnosed and treated in a timelymanner consistent with current generally accepted standards ofcare Specifically the facility should

a Develop and implement strategies to secureand retain adequate numbers of trainednursing staff

b Ensure that nursing care plans includeindividualized proactive interventionsensure that individuals who are identified as ldquoat riskrdquo or ldquohigh riskrdquo are identifiedmonitored consistent with their risk statusand treated according to generally acceptedpractices

c Develop a system to analyze and monitor theuse of ldquopro re natardquo (as-needed) medicationson a regular basis

d Develop a system to analyze and addressmedication variances on a regular basis

e Develop and implement an adequate system ofdocumentation to ensure timely accurate andthorough recording of all medical and nursingcare provided to LSSrsquos residents ensure thatmenses records monthly breast examinationsvital signs and bowel management records aretimely entered Ensure that internal audits and chart reviews are regularly conducted toidentify areas of weakness or strength

- 35 -

f Check emergency equipment on every shift anddocument that it is in full working order

g Provide competency-based training consistentwith generally accepted professionalstandards of care to staff in the areas ofbasic emergency response and first aidinfection control procedures skin care mealplans and sanitation of adaptive equipment

h Develop a system of pharmacy review toappropriately identify adverse druginteractions and recommend follow-up asneeded including medical and laboratorytests

i Provide quality assurance programs includingmedical peer review and quality improvementsystems to regularly evaluate the adequacyof medical care

j Ensure that comprehensive dental assessmentsare recorded in the medical record

2 Occupational and Physical Therapy ServicesPhysical and Nutritional Management

The facility should ensure that residents of LSS receiveadequate and appropriate assessment and treatment by occupationaland physical therapy services consistent with current generallyaccepted professional standards of practice The facility shouldensure that there are a sufficient number of adequately trainedtherapy staff adequate resources and quality improvementprocedures to ensure adequate therapy services includingphysical and nutritional management services to residents inneed Specifically the facility should

a Develop and implement a system to regularlyevaluate and document the status of residents who require therapy services includingbaseline data utilizing generally acceptedmeasurement standards and status updates atregular intervals

b Provide adequate levels of specializedtraining to members of the PhysicalNutritional Management Team to ensure thatservices are provided on the basis of

- 36 -

current generally accepted standards ofpractice

c Identify all individuals at LSS who havephysical and nutritional management needs anddevelop and implement treatment interventionsto address the needs Develop meal plansthat provide staff clear individualizedinstructions regarding necessary supports(eg positioning and food texture) to keepindividuals safe during mealtimes

d Develop and implement a system to monitordocument and respond to individual triggersacross normal life activities related todysphagia regularly review all dysphagiamonitoring data

e Develop competency-based training for all LSSstaff who assist individuals with dysphagiaor choking risks

3 Psychiatric Services

No resident should receive psychotropic medications withouthaving first been thoroughly evaluated and diagnosed according tocurrent professional standards of care including sufficientdocumentation to withstand clinical scrutiny More particularlythe facility should

a Develop standard psychological andpsychiatric assessment and interviewprotocols for reliably reaching a psychiatricdiagnosis for individuals with mild andmoderate mental retardation and standard protocols for individuals with severe andprofound mental retardation Use these protocols to assess each person uponadmission for possible psychiatricdisorder(s)

b Undertake a thorough psychiatricevaluationwork up of all individualscurrently residing at LSS provide aclinically justifiable current diagnosis foreach individual and remove all diagnoseswhich cannot be clinically justified

- 37 -

c As to all residents residing at the facilityreceiving psychotropic medications undertakea new psychiatric consultation to ensure thatall such medications are appropriate and arespecifically matched to current clinicallyjustifiable diagnoses

d Ensure that each psychotropic medication isprescribed in its appropriate therapeuticrange

e Ensure that an interdisciplinary process isutilized at Psychotropic Review Clinics andensure that the following persons attendthe individual the primary care physicianand members of the interdisciplinary team

f If more than one drug is prescribed for thesame indication provide a particularizedjustification at the mechanism level for thepolypharmacy and eliminate all polypharmacythat cannot be justified at the mechanismlevel

g In all prescriptions and psychiatricconsults specify the marker or targetvariables for each drug and the expected timeline for the effects to be evident Monitor the use of each such medication against themarkers or target variables that have beenidentified to evaluate its effect Reassess diagnoses and treatments as appropriate

h Ensure that where psychotropic medicationsare used ongoing consideration is given tothe potential impact of the individualsother medications and the impact on otheraspects of the individuals health

i Develop and implement a system to assess andrefer individuals for individual and grouptherapy as necessary

j Develop and implement a system to evaluateand track the use of pre-medications byoutcomes including injury and cognitivedeficiency alert the psychiatrist when suchmedications are utilized and initiate

- 38 -

programs to reduce the use of suchmedications through de-sensitizationprograms

k Develop and implement a system forcollaboration between the psychiatrist andthe neurologist to treat residents who have amental illness and a seizure disorder

B Protection from Harm

Incidents involving injury and unusual incidents should bereliably and accurately reported and investigated withappropriate follow-up More particularly LSS should

1 Ensure that incidents involving injury and unusualincidents are tracked and analyzed to identifyroot causes

2 Ensure that analyses are transmitted to therelevant disciplines and direct-care areas forresponsive action and responses are monitored toensure that appropriate steps are taken

3 Ensure that assessments are conducted to determine whether root causes have been addressed and ifnot ensure that appropriate feedback is providedto the responsible disciplines and direct-careareas

4 Ensure that all staff and (to the extent possible)residents are trained adequately on processes forreporting abuse and neglect

C Behavior Programs Restraints and Habilitation

1 Behavioral Programs

Behavioral data used in forming psychological assessmentsshould be current accurate and complete behavioral assessmentsshould be complete and substantiated treatments should be gearedtoward improving the individuals quality of life and all of theforegoing should be implemented according to current professionalstandards of care including with documentation sufficient towithstand clinical scrutiny More particularly LSS should

- 39 -

a Develop standard protocols for efficientaccurate collection of behavioral dataincluding relevant contextual information

b Develop standard psychological assessment andinterview protocols Ensure in these protocols that possible medical psychiatricor other motivations for target behaviors areconsidered

c Use these protocols to ensure that functionalassessments and findings about behaviors areadequately substantiated current andcomplete In this regard ensure that otherpotential functions have been assessed andexcluded

d Ensure that behavioral plans are written at alevel that can be understood and implementedby direct care staff

e Ensure that outcomes of behavioral plansinclude fundamental objectives such asreduction in use of medication enhancedlearning opportunities and greater communityintegration

f Ensure that outcomes are frequentlymonitored and that assessments andtreatments are reevaluated promptly if targetbehaviors do not improve

g Ensure that the psychologist-to-residentratio is adequate to support both residentsneeding behavior programs and the facilitysgeneral population

h Ensure that psychiatric disorders orconditions that require primary oradjunctive psychopharmacological treatmentare distinguished from essentially learning-based behavior problems that requirebehavioral or other interventions Expresslyidentify those that have overlap Provide appropriate integrated treatment

i Ensure that behavior plans reflect anassessment in a manner that will permit

- 40 -

clinical review of medical condition(s)psychiatric treatment and the use and impactof psychotropic drugs

2 Restraints and Restrictive Controls

Any device or procedure that restricts limits or directs apersons freedom of movement (including but not limited tomechanical restraints physical or manual restraints chemicalrestraints or time out procedures) (Restrictive Controls)should be permissible only as a last resort More specificallyLSS should

a Develop and implement a policy on restraintsand restrictive measures that comports withcurrent professional standards

b Eliminate use of mechanical restraints from all behavior plans and programs and limit useof mechanical restraints to true emergencysituations

c Eliminate prone holds in all circumstances

d Eliminate as needed or standing ordersfor Restrictive Controls

e Eliminate use of all other Restrictive Controls except

(i) when active treatment strategieshave been attempted or consideredin a clinically justifiable mannerand would not protect the person orothers from harm

(ii) other less intrusive orrestrictive methods have been ineffective and

(iii) as a planned approvedintervention when a personsbehavior poses an immediate risk ofharm to self or others

f Ensure that an individual in restraint is given appropriate opportunities fortoileting nourishment and exercise of

- 41 -

restrained limbs and is released fromrestraint as soon as he or she does not posean immediate risk of harm to any person

g Convene an interdisciplinary team to reviewand revise as appropriate the behaviorsupport plan of any individual placed inrestraints more than three times in any four-week period

h Provide ongoing competency-based training forall psychology supervisory and direct carestaff on treatment and behavioral interventions including the proper use ofrestraints and on data collection regardingrestraint use

i Ensure that only the least restrictiverestraint techniques necessary are utilizedand that restraints are never used as a substitute for adequate behavioralinterventions as punishment or for theconvenience of staff

j Maintain quality assurance oversight toensure that restraint use is proper andaccurately tracked

3 Habilitation

LSS should provide its residents with adequate habilitationincluding but not limited to individualized training educationand skill acquisition programs developed and implemented topromote the growth development and independence of eachresident to minimize regression and loss of skills and toensure reasonable safety security and freedom from undue use ofrestraint More specifically LSS should

a Formalize habilitation planning protocolspolicies and procedures consistent withgenerally accepted professional standards ofcare for use throughout LSS

b Provide staff competency-based training onthe development of individualizedhabilitation plans and their implementation

- 42 -

c Develop and implement individualizedhabilitation programming directly matched toeach residentrsquos goals interests needs andlifestyle preferences

d Monitor and analyze the efficacy of theindividualized planning and implementationprocess Each individualized plan shouldhave outcome measures that specify actionsteps and training strategies and relatedtarget dates and responsible staff Revise programming as appropriate based onoutcomes

D Serving Persons in the Most Integrated SettingAppropriate to Their Individualized Needs

1 Develop and implement comprehensive formalguidelines policies and procedures fortransition planning These should include at aminimum target dates measurable outcomestraining and transition strategies andresponsible staff

2 Assess the specific characteristics of the mostappropriate setting and support needs for eachresident of LSS Assessments (for new admissions)should be done at admission Periodically updatethe assessments for individuals who remain at the facility for extended periods of time

3 If it is determined that a more integrated settingwould appropriately meet the individuals needspromptly develop and implement with appropriateconsent a transition plan that specifies actionsnecessary to ensure a safe successful transitionfrom the facility to a more integrated settingthe names and positions of those responsible forthese actions and corresponding time frames

4 Provide adequate education about availablecommunity placements to residents and theirfamilies or guardians to enable them to makeinformed choices

5 Provide adequate staff training and resources toensure timely and adequate transition planning

- 43 -

The collaborative approach that the parties have taken thusfar has been productive We hope to continue working with theState in an amicable and cooperative fashion to resolve ouroutstanding concerns regarding LSS

Please note that this findings letter is a public documentand it will be posted on the Civil Rights Divisionrsquos websiteWhile we will provide a copy of this letter to any individual orentity upon request as a matter of courtesy we will not postthis letter on the Civil Rights Divisionrsquos website until 10calendar days from the date of this letter

Provided our cooperative relationship continues we alsowould be willing to send our expert consultantsrsquo evaluations ofthe facility under separate cover These reports are not publicdocuments Although the reports are our expert consultantsrsquo workand do not necessarily represent the official conclusions of theDepartment of Justice their observations analyses andrecommendations provide further elaboration of the issuesdiscussed in this letter and offer practical assistance inaddressing them

We are obligated by statute to advise you that in theunexpected event that we are unable to reach a resolutionregarding our concerns the Attorney General may institute alawsuit pursuant to CRIPA to correct deficiencies of the kindidentified in this letter forty-nine days after appropriateofficials have been notified of them 42 USC sect 1997b(a)(1)We would prefer however to resolve this matter by workingcooperatively with you and we are confident that we will be ableto do so in this case The lawyers assigned to this matter willbe contacting your attorneys to discuss this matter in furtherdetail If you have any questions regarding this letter pleasecall Shanetta Y Cutlar Chief of the Civil Rights DivisionrsquosSpecial Litigation Section at 202-514-0195

Sincerely

s Wan J KimWan J Kim Assistant Attorney General

- 44 -

cc The Honorable Greg AbbottAttorney GeneralState of Texas

Adelaide Horn Commissioner Texas Department of Aging and Disability Services

Nancy CondonSuperintendentLSS State School

Richard B Roper IIIUnited States Attorney for theNorthern District of Texas

- 32 -

reasonably accommodated taking into account the resourcesavailable to the State and the needs of others with mental disabilities Id at 602 607

Further President Bush as part of his New FreedomInitiative has decreed it a major priority for hisAdministration to remove barriers to equality and to expandopportunities available to Americans living with disabilitiesAs one step in implementing the New Freedom Initiative thePresident on June 18 2001 signed Executive Order No 13217entitled ldquoCommunity-Based Alternatives for Individuals withDisabilitiesrdquo This Order emphasized that unjustified isolationor segregation of qualified individuals with disabilities ininstitutions is a form of prohibited discrimination and that theUnited States is committed to community-based alternatives forindividuals with disabilities Exec Order No 13217sectsect 1(a)-(c) 66 Fed Reg 33155 (June 18 2001)

As to the residents of LSS the State of Texas has not takenadequate steps regarding (1) community placements(2) assessments (3) communication of information on communityresources to residents guardians and family members and(4) execution of the discharge process As a consequenceindividuals who desire to live in the community and whoreasonably can be accommodated there are denied the opportunityto live and work in more integrated settings in violation of theStatersquos obligations under Title II of the ADA

1 Inadequate Community Placements

LSS does not have a systematic transition and dischargeplacement planning process that actively seeks to place in a moreintegrated setting individuals who can be accommodated thereDuring our visit we interacted with a number of remarkablycapable individuals Their presence at LSS provided a strongindication that the State is failing to serve in a moreintegrated setting individuals who can be reasonably accommodatedthere In 2003 only eight individuals were placed in community-based facilities The following year that number dropped to 6individuals As of March 2005 only two individuals had beenplaced outside LSS

2 Inadequate Assessments

Generally accepted standards regarding the transition ofpersons with developmental disabilities from institutions to thecommunity require that treatment teams carefully evaluate theneeds of each individual by taking into account the personrsquos

- 33 -

strengths limitations and preferences and identify services tobe provided in the most integrated setting appropriate to theindividualrsquos needs LSS has no comprehensive facility policy bywhich to guide transitions from the institution to communityliving arrangements Without such a roadmap on how to constructan appropriate placement transition planning is inconsistent andineffective

Similarly successful implementation of community transitiondepends on the development of a transition plan that sets forthan action plan identifying the individualrsquos strengthsweaknesses and preferences needed individual supports in thecommunity along with time lines by which specified staff are todevelop the supports a list of all assistive devices being usedcurrently or still needed for placement to occur a list ofactivities to be completed before during and after transitionand requirements for ldquofollow alongrdquo after a placement hasoccurred

Contrary to the requirements of the ADA LSSrsquosinterdisciplinary teams appear to endorse the retention ofindividuals in the institution The teams do not developcomplete analyses of how and where each resident can beappropriately served in the most integrated setting LSS fails to provide treatment to individuals in the most integratedsetting appropriate to their needs as determined by professionaljudgment LSS fails to exercise professional judgment todetermine the individualrsquos appropriateness for community-basedplacement to determine criteria for discharge to identifyresources necessary to facilitate the placement and to develop aschedule for instituting the placement

LSSrsquos interdisciplinary teams assert that LSS is the mostintegrated setting even for those residents who have communicatedtheir desires for community placement For example despiteMHrsquos stated goal to live in a home or group home MHrsquos programplan states that LSS remains her most integrated setting MH is described as ldquoverbal and able to express her own opinionrdquoHowever her representative from the Texas Mental RetardationAuthority seeks to have her remain at LSS while providing norationale or criteria for discharge The unsubstantiated conclusion that LSS is her most integrated setting is highlyquestionable

- 34 -

II REMEDIAL MEASURES

To remedy the identified deficiencies and protect theconstitutional and statutory rights of LSSrsquos residents Texasshould implement promptly at a minimum the remedial measuresset forth below

A Health Care

1 General Medical Services

The facility should ensure that residents of LSS receiveroutine preventative and emergency medical and dental careconsistent with current generally accepted professionalstandards LSS should ensure that residents with health problemsare identified assessed diagnosed and treated in a timelymanner consistent with current generally accepted standards ofcare Specifically the facility should

a Develop and implement strategies to secureand retain adequate numbers of trainednursing staff

b Ensure that nursing care plans includeindividualized proactive interventionsensure that individuals who are identified as ldquoat riskrdquo or ldquohigh riskrdquo are identifiedmonitored consistent with their risk statusand treated according to generally acceptedpractices

c Develop a system to analyze and monitor theuse of ldquopro re natardquo (as-needed) medicationson a regular basis

d Develop a system to analyze and addressmedication variances on a regular basis

e Develop and implement an adequate system ofdocumentation to ensure timely accurate andthorough recording of all medical and nursingcare provided to LSSrsquos residents ensure thatmenses records monthly breast examinationsvital signs and bowel management records aretimely entered Ensure that internal audits and chart reviews are regularly conducted toidentify areas of weakness or strength

- 35 -

f Check emergency equipment on every shift anddocument that it is in full working order

g Provide competency-based training consistentwith generally accepted professionalstandards of care to staff in the areas ofbasic emergency response and first aidinfection control procedures skin care mealplans and sanitation of adaptive equipment

h Develop a system of pharmacy review toappropriately identify adverse druginteractions and recommend follow-up asneeded including medical and laboratorytests

i Provide quality assurance programs includingmedical peer review and quality improvementsystems to regularly evaluate the adequacyof medical care

j Ensure that comprehensive dental assessmentsare recorded in the medical record

2 Occupational and Physical Therapy ServicesPhysical and Nutritional Management

The facility should ensure that residents of LSS receiveadequate and appropriate assessment and treatment by occupationaland physical therapy services consistent with current generallyaccepted professional standards of practice The facility shouldensure that there are a sufficient number of adequately trainedtherapy staff adequate resources and quality improvementprocedures to ensure adequate therapy services includingphysical and nutritional management services to residents inneed Specifically the facility should

a Develop and implement a system to regularlyevaluate and document the status of residents who require therapy services includingbaseline data utilizing generally acceptedmeasurement standards and status updates atregular intervals

b Provide adequate levels of specializedtraining to members of the PhysicalNutritional Management Team to ensure thatservices are provided on the basis of

- 36 -

current generally accepted standards ofpractice

c Identify all individuals at LSS who havephysical and nutritional management needs anddevelop and implement treatment interventionsto address the needs Develop meal plansthat provide staff clear individualizedinstructions regarding necessary supports(eg positioning and food texture) to keepindividuals safe during mealtimes

d Develop and implement a system to monitordocument and respond to individual triggersacross normal life activities related todysphagia regularly review all dysphagiamonitoring data

e Develop competency-based training for all LSSstaff who assist individuals with dysphagiaor choking risks

3 Psychiatric Services

No resident should receive psychotropic medications withouthaving first been thoroughly evaluated and diagnosed according tocurrent professional standards of care including sufficientdocumentation to withstand clinical scrutiny More particularlythe facility should

a Develop standard psychological andpsychiatric assessment and interviewprotocols for reliably reaching a psychiatricdiagnosis for individuals with mild andmoderate mental retardation and standard protocols for individuals with severe andprofound mental retardation Use these protocols to assess each person uponadmission for possible psychiatricdisorder(s)

b Undertake a thorough psychiatricevaluationwork up of all individualscurrently residing at LSS provide aclinically justifiable current diagnosis foreach individual and remove all diagnoseswhich cannot be clinically justified

- 37 -

c As to all residents residing at the facilityreceiving psychotropic medications undertakea new psychiatric consultation to ensure thatall such medications are appropriate and arespecifically matched to current clinicallyjustifiable diagnoses

d Ensure that each psychotropic medication isprescribed in its appropriate therapeuticrange

e Ensure that an interdisciplinary process isutilized at Psychotropic Review Clinics andensure that the following persons attendthe individual the primary care physicianand members of the interdisciplinary team

f If more than one drug is prescribed for thesame indication provide a particularizedjustification at the mechanism level for thepolypharmacy and eliminate all polypharmacythat cannot be justified at the mechanismlevel

g In all prescriptions and psychiatricconsults specify the marker or targetvariables for each drug and the expected timeline for the effects to be evident Monitor the use of each such medication against themarkers or target variables that have beenidentified to evaluate its effect Reassess diagnoses and treatments as appropriate

h Ensure that where psychotropic medicationsare used ongoing consideration is given tothe potential impact of the individualsother medications and the impact on otheraspects of the individuals health

i Develop and implement a system to assess andrefer individuals for individual and grouptherapy as necessary

j Develop and implement a system to evaluateand track the use of pre-medications byoutcomes including injury and cognitivedeficiency alert the psychiatrist when suchmedications are utilized and initiate

- 38 -

programs to reduce the use of suchmedications through de-sensitizationprograms

k Develop and implement a system forcollaboration between the psychiatrist andthe neurologist to treat residents who have amental illness and a seizure disorder

B Protection from Harm

Incidents involving injury and unusual incidents should bereliably and accurately reported and investigated withappropriate follow-up More particularly LSS should

1 Ensure that incidents involving injury and unusualincidents are tracked and analyzed to identifyroot causes

2 Ensure that analyses are transmitted to therelevant disciplines and direct-care areas forresponsive action and responses are monitored toensure that appropriate steps are taken

3 Ensure that assessments are conducted to determine whether root causes have been addressed and ifnot ensure that appropriate feedback is providedto the responsible disciplines and direct-careareas

4 Ensure that all staff and (to the extent possible)residents are trained adequately on processes forreporting abuse and neglect

C Behavior Programs Restraints and Habilitation

1 Behavioral Programs

Behavioral data used in forming psychological assessmentsshould be current accurate and complete behavioral assessmentsshould be complete and substantiated treatments should be gearedtoward improving the individuals quality of life and all of theforegoing should be implemented according to current professionalstandards of care including with documentation sufficient towithstand clinical scrutiny More particularly LSS should

- 39 -

a Develop standard protocols for efficientaccurate collection of behavioral dataincluding relevant contextual information

b Develop standard psychological assessment andinterview protocols Ensure in these protocols that possible medical psychiatricor other motivations for target behaviors areconsidered

c Use these protocols to ensure that functionalassessments and findings about behaviors areadequately substantiated current andcomplete In this regard ensure that otherpotential functions have been assessed andexcluded

d Ensure that behavioral plans are written at alevel that can be understood and implementedby direct care staff

e Ensure that outcomes of behavioral plansinclude fundamental objectives such asreduction in use of medication enhancedlearning opportunities and greater communityintegration

f Ensure that outcomes are frequentlymonitored and that assessments andtreatments are reevaluated promptly if targetbehaviors do not improve

g Ensure that the psychologist-to-residentratio is adequate to support both residentsneeding behavior programs and the facilitysgeneral population

h Ensure that psychiatric disorders orconditions that require primary oradjunctive psychopharmacological treatmentare distinguished from essentially learning-based behavior problems that requirebehavioral or other interventions Expresslyidentify those that have overlap Provide appropriate integrated treatment

i Ensure that behavior plans reflect anassessment in a manner that will permit

- 40 -

clinical review of medical condition(s)psychiatric treatment and the use and impactof psychotropic drugs

2 Restraints and Restrictive Controls

Any device or procedure that restricts limits or directs apersons freedom of movement (including but not limited tomechanical restraints physical or manual restraints chemicalrestraints or time out procedures) (Restrictive Controls)should be permissible only as a last resort More specificallyLSS should

a Develop and implement a policy on restraintsand restrictive measures that comports withcurrent professional standards

b Eliminate use of mechanical restraints from all behavior plans and programs and limit useof mechanical restraints to true emergencysituations

c Eliminate prone holds in all circumstances

d Eliminate as needed or standing ordersfor Restrictive Controls

e Eliminate use of all other Restrictive Controls except

(i) when active treatment strategieshave been attempted or consideredin a clinically justifiable mannerand would not protect the person orothers from harm

(ii) other less intrusive orrestrictive methods have been ineffective and

(iii) as a planned approvedintervention when a personsbehavior poses an immediate risk ofharm to self or others

f Ensure that an individual in restraint is given appropriate opportunities fortoileting nourishment and exercise of

- 41 -

restrained limbs and is released fromrestraint as soon as he or she does not posean immediate risk of harm to any person

g Convene an interdisciplinary team to reviewand revise as appropriate the behaviorsupport plan of any individual placed inrestraints more than three times in any four-week period

h Provide ongoing competency-based training forall psychology supervisory and direct carestaff on treatment and behavioral interventions including the proper use ofrestraints and on data collection regardingrestraint use

i Ensure that only the least restrictiverestraint techniques necessary are utilizedand that restraints are never used as a substitute for adequate behavioralinterventions as punishment or for theconvenience of staff

j Maintain quality assurance oversight toensure that restraint use is proper andaccurately tracked

3 Habilitation

LSS should provide its residents with adequate habilitationincluding but not limited to individualized training educationand skill acquisition programs developed and implemented topromote the growth development and independence of eachresident to minimize regression and loss of skills and toensure reasonable safety security and freedom from undue use ofrestraint More specifically LSS should

a Formalize habilitation planning protocolspolicies and procedures consistent withgenerally accepted professional standards ofcare for use throughout LSS

b Provide staff competency-based training onthe development of individualizedhabilitation plans and their implementation

- 42 -

c Develop and implement individualizedhabilitation programming directly matched toeach residentrsquos goals interests needs andlifestyle preferences

d Monitor and analyze the efficacy of theindividualized planning and implementationprocess Each individualized plan shouldhave outcome measures that specify actionsteps and training strategies and relatedtarget dates and responsible staff Revise programming as appropriate based onoutcomes

D Serving Persons in the Most Integrated SettingAppropriate to Their Individualized Needs

1 Develop and implement comprehensive formalguidelines policies and procedures fortransition planning These should include at aminimum target dates measurable outcomestraining and transition strategies andresponsible staff

2 Assess the specific characteristics of the mostappropriate setting and support needs for eachresident of LSS Assessments (for new admissions)should be done at admission Periodically updatethe assessments for individuals who remain at the facility for extended periods of time

3 If it is determined that a more integrated settingwould appropriately meet the individuals needspromptly develop and implement with appropriateconsent a transition plan that specifies actionsnecessary to ensure a safe successful transitionfrom the facility to a more integrated settingthe names and positions of those responsible forthese actions and corresponding time frames

4 Provide adequate education about availablecommunity placements to residents and theirfamilies or guardians to enable them to makeinformed choices

5 Provide adequate staff training and resources toensure timely and adequate transition planning

- 43 -

The collaborative approach that the parties have taken thusfar has been productive We hope to continue working with theState in an amicable and cooperative fashion to resolve ouroutstanding concerns regarding LSS

Please note that this findings letter is a public documentand it will be posted on the Civil Rights Divisionrsquos websiteWhile we will provide a copy of this letter to any individual orentity upon request as a matter of courtesy we will not postthis letter on the Civil Rights Divisionrsquos website until 10calendar days from the date of this letter

Provided our cooperative relationship continues we alsowould be willing to send our expert consultantsrsquo evaluations ofthe facility under separate cover These reports are not publicdocuments Although the reports are our expert consultantsrsquo workand do not necessarily represent the official conclusions of theDepartment of Justice their observations analyses andrecommendations provide further elaboration of the issuesdiscussed in this letter and offer practical assistance inaddressing them

We are obligated by statute to advise you that in theunexpected event that we are unable to reach a resolutionregarding our concerns the Attorney General may institute alawsuit pursuant to CRIPA to correct deficiencies of the kindidentified in this letter forty-nine days after appropriateofficials have been notified of them 42 USC sect 1997b(a)(1)We would prefer however to resolve this matter by workingcooperatively with you and we are confident that we will be ableto do so in this case The lawyers assigned to this matter willbe contacting your attorneys to discuss this matter in furtherdetail If you have any questions regarding this letter pleasecall Shanetta Y Cutlar Chief of the Civil Rights DivisionrsquosSpecial Litigation Section at 202-514-0195

Sincerely

s Wan J KimWan J Kim Assistant Attorney General

- 44 -

cc The Honorable Greg AbbottAttorney GeneralState of Texas

Adelaide Horn Commissioner Texas Department of Aging and Disability Services

Nancy CondonSuperintendentLSS State School

Richard B Roper IIIUnited States Attorney for theNorthern District of Texas

- 33 -

strengths limitations and preferences and identify services tobe provided in the most integrated setting appropriate to theindividualrsquos needs LSS has no comprehensive facility policy bywhich to guide transitions from the institution to communityliving arrangements Without such a roadmap on how to constructan appropriate placement transition planning is inconsistent andineffective

Similarly successful implementation of community transitiondepends on the development of a transition plan that sets forthan action plan identifying the individualrsquos strengthsweaknesses and preferences needed individual supports in thecommunity along with time lines by which specified staff are todevelop the supports a list of all assistive devices being usedcurrently or still needed for placement to occur a list ofactivities to be completed before during and after transitionand requirements for ldquofollow alongrdquo after a placement hasoccurred

Contrary to the requirements of the ADA LSSrsquosinterdisciplinary teams appear to endorse the retention ofindividuals in the institution The teams do not developcomplete analyses of how and where each resident can beappropriately served in the most integrated setting LSS fails to provide treatment to individuals in the most integratedsetting appropriate to their needs as determined by professionaljudgment LSS fails to exercise professional judgment todetermine the individualrsquos appropriateness for community-basedplacement to determine criteria for discharge to identifyresources necessary to facilitate the placement and to develop aschedule for instituting the placement

LSSrsquos interdisciplinary teams assert that LSS is the mostintegrated setting even for those residents who have communicatedtheir desires for community placement For example despiteMHrsquos stated goal to live in a home or group home MHrsquos programplan states that LSS remains her most integrated setting MH is described as ldquoverbal and able to express her own opinionrdquoHowever her representative from the Texas Mental RetardationAuthority seeks to have her remain at LSS while providing norationale or criteria for discharge The unsubstantiated conclusion that LSS is her most integrated setting is highlyquestionable

- 34 -

II REMEDIAL MEASURES

To remedy the identified deficiencies and protect theconstitutional and statutory rights of LSSrsquos residents Texasshould implement promptly at a minimum the remedial measuresset forth below

A Health Care

1 General Medical Services

The facility should ensure that residents of LSS receiveroutine preventative and emergency medical and dental careconsistent with current generally accepted professionalstandards LSS should ensure that residents with health problemsare identified assessed diagnosed and treated in a timelymanner consistent with current generally accepted standards ofcare Specifically the facility should

a Develop and implement strategies to secureand retain adequate numbers of trainednursing staff

b Ensure that nursing care plans includeindividualized proactive interventionsensure that individuals who are identified as ldquoat riskrdquo or ldquohigh riskrdquo are identifiedmonitored consistent with their risk statusand treated according to generally acceptedpractices

c Develop a system to analyze and monitor theuse of ldquopro re natardquo (as-needed) medicationson a regular basis

d Develop a system to analyze and addressmedication variances on a regular basis

e Develop and implement an adequate system ofdocumentation to ensure timely accurate andthorough recording of all medical and nursingcare provided to LSSrsquos residents ensure thatmenses records monthly breast examinationsvital signs and bowel management records aretimely entered Ensure that internal audits and chart reviews are regularly conducted toidentify areas of weakness or strength

- 35 -

f Check emergency equipment on every shift anddocument that it is in full working order

g Provide competency-based training consistentwith generally accepted professionalstandards of care to staff in the areas ofbasic emergency response and first aidinfection control procedures skin care mealplans and sanitation of adaptive equipment

h Develop a system of pharmacy review toappropriately identify adverse druginteractions and recommend follow-up asneeded including medical and laboratorytests

i Provide quality assurance programs includingmedical peer review and quality improvementsystems to regularly evaluate the adequacyof medical care

j Ensure that comprehensive dental assessmentsare recorded in the medical record

2 Occupational and Physical Therapy ServicesPhysical and Nutritional Management

The facility should ensure that residents of LSS receiveadequate and appropriate assessment and treatment by occupationaland physical therapy services consistent with current generallyaccepted professional standards of practice The facility shouldensure that there are a sufficient number of adequately trainedtherapy staff adequate resources and quality improvementprocedures to ensure adequate therapy services includingphysical and nutritional management services to residents inneed Specifically the facility should

a Develop and implement a system to regularlyevaluate and document the status of residents who require therapy services includingbaseline data utilizing generally acceptedmeasurement standards and status updates atregular intervals

b Provide adequate levels of specializedtraining to members of the PhysicalNutritional Management Team to ensure thatservices are provided on the basis of

- 36 -

current generally accepted standards ofpractice

c Identify all individuals at LSS who havephysical and nutritional management needs anddevelop and implement treatment interventionsto address the needs Develop meal plansthat provide staff clear individualizedinstructions regarding necessary supports(eg positioning and food texture) to keepindividuals safe during mealtimes

d Develop and implement a system to monitordocument and respond to individual triggersacross normal life activities related todysphagia regularly review all dysphagiamonitoring data

e Develop competency-based training for all LSSstaff who assist individuals with dysphagiaor choking risks

3 Psychiatric Services

No resident should receive psychotropic medications withouthaving first been thoroughly evaluated and diagnosed according tocurrent professional standards of care including sufficientdocumentation to withstand clinical scrutiny More particularlythe facility should

a Develop standard psychological andpsychiatric assessment and interviewprotocols for reliably reaching a psychiatricdiagnosis for individuals with mild andmoderate mental retardation and standard protocols for individuals with severe andprofound mental retardation Use these protocols to assess each person uponadmission for possible psychiatricdisorder(s)

b Undertake a thorough psychiatricevaluationwork up of all individualscurrently residing at LSS provide aclinically justifiable current diagnosis foreach individual and remove all diagnoseswhich cannot be clinically justified

- 37 -

c As to all residents residing at the facilityreceiving psychotropic medications undertakea new psychiatric consultation to ensure thatall such medications are appropriate and arespecifically matched to current clinicallyjustifiable diagnoses

d Ensure that each psychotropic medication isprescribed in its appropriate therapeuticrange

e Ensure that an interdisciplinary process isutilized at Psychotropic Review Clinics andensure that the following persons attendthe individual the primary care physicianand members of the interdisciplinary team

f If more than one drug is prescribed for thesame indication provide a particularizedjustification at the mechanism level for thepolypharmacy and eliminate all polypharmacythat cannot be justified at the mechanismlevel

g In all prescriptions and psychiatricconsults specify the marker or targetvariables for each drug and the expected timeline for the effects to be evident Monitor the use of each such medication against themarkers or target variables that have beenidentified to evaluate its effect Reassess diagnoses and treatments as appropriate

h Ensure that where psychotropic medicationsare used ongoing consideration is given tothe potential impact of the individualsother medications and the impact on otheraspects of the individuals health

i Develop and implement a system to assess andrefer individuals for individual and grouptherapy as necessary

j Develop and implement a system to evaluateand track the use of pre-medications byoutcomes including injury and cognitivedeficiency alert the psychiatrist when suchmedications are utilized and initiate

- 38 -

programs to reduce the use of suchmedications through de-sensitizationprograms

k Develop and implement a system forcollaboration between the psychiatrist andthe neurologist to treat residents who have amental illness and a seizure disorder

B Protection from Harm

Incidents involving injury and unusual incidents should bereliably and accurately reported and investigated withappropriate follow-up More particularly LSS should

1 Ensure that incidents involving injury and unusualincidents are tracked and analyzed to identifyroot causes

2 Ensure that analyses are transmitted to therelevant disciplines and direct-care areas forresponsive action and responses are monitored toensure that appropriate steps are taken

3 Ensure that assessments are conducted to determine whether root causes have been addressed and ifnot ensure that appropriate feedback is providedto the responsible disciplines and direct-careareas

4 Ensure that all staff and (to the extent possible)residents are trained adequately on processes forreporting abuse and neglect

C Behavior Programs Restraints and Habilitation

1 Behavioral Programs

Behavioral data used in forming psychological assessmentsshould be current accurate and complete behavioral assessmentsshould be complete and substantiated treatments should be gearedtoward improving the individuals quality of life and all of theforegoing should be implemented according to current professionalstandards of care including with documentation sufficient towithstand clinical scrutiny More particularly LSS should

- 39 -

a Develop standard protocols for efficientaccurate collection of behavioral dataincluding relevant contextual information

b Develop standard psychological assessment andinterview protocols Ensure in these protocols that possible medical psychiatricor other motivations for target behaviors areconsidered

c Use these protocols to ensure that functionalassessments and findings about behaviors areadequately substantiated current andcomplete In this regard ensure that otherpotential functions have been assessed andexcluded

d Ensure that behavioral plans are written at alevel that can be understood and implementedby direct care staff

e Ensure that outcomes of behavioral plansinclude fundamental objectives such asreduction in use of medication enhancedlearning opportunities and greater communityintegration

f Ensure that outcomes are frequentlymonitored and that assessments andtreatments are reevaluated promptly if targetbehaviors do not improve

g Ensure that the psychologist-to-residentratio is adequate to support both residentsneeding behavior programs and the facilitysgeneral population

h Ensure that psychiatric disorders orconditions that require primary oradjunctive psychopharmacological treatmentare distinguished from essentially learning-based behavior problems that requirebehavioral or other interventions Expresslyidentify those that have overlap Provide appropriate integrated treatment

i Ensure that behavior plans reflect anassessment in a manner that will permit

- 40 -

clinical review of medical condition(s)psychiatric treatment and the use and impactof psychotropic drugs

2 Restraints and Restrictive Controls

Any device or procedure that restricts limits or directs apersons freedom of movement (including but not limited tomechanical restraints physical or manual restraints chemicalrestraints or time out procedures) (Restrictive Controls)should be permissible only as a last resort More specificallyLSS should

a Develop and implement a policy on restraintsand restrictive measures that comports withcurrent professional standards

b Eliminate use of mechanical restraints from all behavior plans and programs and limit useof mechanical restraints to true emergencysituations

c Eliminate prone holds in all circumstances

d Eliminate as needed or standing ordersfor Restrictive Controls

e Eliminate use of all other Restrictive Controls except

(i) when active treatment strategieshave been attempted or consideredin a clinically justifiable mannerand would not protect the person orothers from harm

(ii) other less intrusive orrestrictive methods have been ineffective and

(iii) as a planned approvedintervention when a personsbehavior poses an immediate risk ofharm to self or others

f Ensure that an individual in restraint is given appropriate opportunities fortoileting nourishment and exercise of

- 41 -

restrained limbs and is released fromrestraint as soon as he or she does not posean immediate risk of harm to any person

g Convene an interdisciplinary team to reviewand revise as appropriate the behaviorsupport plan of any individual placed inrestraints more than three times in any four-week period

h Provide ongoing competency-based training forall psychology supervisory and direct carestaff on treatment and behavioral interventions including the proper use ofrestraints and on data collection regardingrestraint use

i Ensure that only the least restrictiverestraint techniques necessary are utilizedand that restraints are never used as a substitute for adequate behavioralinterventions as punishment or for theconvenience of staff

j Maintain quality assurance oversight toensure that restraint use is proper andaccurately tracked

3 Habilitation

LSS should provide its residents with adequate habilitationincluding but not limited to individualized training educationand skill acquisition programs developed and implemented topromote the growth development and independence of eachresident to minimize regression and loss of skills and toensure reasonable safety security and freedom from undue use ofrestraint More specifically LSS should

a Formalize habilitation planning protocolspolicies and procedures consistent withgenerally accepted professional standards ofcare for use throughout LSS

b Provide staff competency-based training onthe development of individualizedhabilitation plans and their implementation

- 42 -

c Develop and implement individualizedhabilitation programming directly matched toeach residentrsquos goals interests needs andlifestyle preferences

d Monitor and analyze the efficacy of theindividualized planning and implementationprocess Each individualized plan shouldhave outcome measures that specify actionsteps and training strategies and relatedtarget dates and responsible staff Revise programming as appropriate based onoutcomes

D Serving Persons in the Most Integrated SettingAppropriate to Their Individualized Needs

1 Develop and implement comprehensive formalguidelines policies and procedures fortransition planning These should include at aminimum target dates measurable outcomestraining and transition strategies andresponsible staff

2 Assess the specific characteristics of the mostappropriate setting and support needs for eachresident of LSS Assessments (for new admissions)should be done at admission Periodically updatethe assessments for individuals who remain at the facility for extended periods of time

3 If it is determined that a more integrated settingwould appropriately meet the individuals needspromptly develop and implement with appropriateconsent a transition plan that specifies actionsnecessary to ensure a safe successful transitionfrom the facility to a more integrated settingthe names and positions of those responsible forthese actions and corresponding time frames

4 Provide adequate education about availablecommunity placements to residents and theirfamilies or guardians to enable them to makeinformed choices

5 Provide adequate staff training and resources toensure timely and adequate transition planning

- 43 -

The collaborative approach that the parties have taken thusfar has been productive We hope to continue working with theState in an amicable and cooperative fashion to resolve ouroutstanding concerns regarding LSS

Please note that this findings letter is a public documentand it will be posted on the Civil Rights Divisionrsquos websiteWhile we will provide a copy of this letter to any individual orentity upon request as a matter of courtesy we will not postthis letter on the Civil Rights Divisionrsquos website until 10calendar days from the date of this letter

Provided our cooperative relationship continues we alsowould be willing to send our expert consultantsrsquo evaluations ofthe facility under separate cover These reports are not publicdocuments Although the reports are our expert consultantsrsquo workand do not necessarily represent the official conclusions of theDepartment of Justice their observations analyses andrecommendations provide further elaboration of the issuesdiscussed in this letter and offer practical assistance inaddressing them

We are obligated by statute to advise you that in theunexpected event that we are unable to reach a resolutionregarding our concerns the Attorney General may institute alawsuit pursuant to CRIPA to correct deficiencies of the kindidentified in this letter forty-nine days after appropriateofficials have been notified of them 42 USC sect 1997b(a)(1)We would prefer however to resolve this matter by workingcooperatively with you and we are confident that we will be ableto do so in this case The lawyers assigned to this matter willbe contacting your attorneys to discuss this matter in furtherdetail If you have any questions regarding this letter pleasecall Shanetta Y Cutlar Chief of the Civil Rights DivisionrsquosSpecial Litigation Section at 202-514-0195

Sincerely

s Wan J KimWan J Kim Assistant Attorney General

- 44 -

cc The Honorable Greg AbbottAttorney GeneralState of Texas

Adelaide Horn Commissioner Texas Department of Aging and Disability Services

Nancy CondonSuperintendentLSS State School

Richard B Roper IIIUnited States Attorney for theNorthern District of Texas

- 34 -

II REMEDIAL MEASURES

To remedy the identified deficiencies and protect theconstitutional and statutory rights of LSSrsquos residents Texasshould implement promptly at a minimum the remedial measuresset forth below

A Health Care

1 General Medical Services

The facility should ensure that residents of LSS receiveroutine preventative and emergency medical and dental careconsistent with current generally accepted professionalstandards LSS should ensure that residents with health problemsare identified assessed diagnosed and treated in a timelymanner consistent with current generally accepted standards ofcare Specifically the facility should

a Develop and implement strategies to secureand retain adequate numbers of trainednursing staff

b Ensure that nursing care plans includeindividualized proactive interventionsensure that individuals who are identified as ldquoat riskrdquo or ldquohigh riskrdquo are identifiedmonitored consistent with their risk statusand treated according to generally acceptedpractices

c Develop a system to analyze and monitor theuse of ldquopro re natardquo (as-needed) medicationson a regular basis

d Develop a system to analyze and addressmedication variances on a regular basis

e Develop and implement an adequate system ofdocumentation to ensure timely accurate andthorough recording of all medical and nursingcare provided to LSSrsquos residents ensure thatmenses records monthly breast examinationsvital signs and bowel management records aretimely entered Ensure that internal audits and chart reviews are regularly conducted toidentify areas of weakness or strength

- 35 -

f Check emergency equipment on every shift anddocument that it is in full working order

g Provide competency-based training consistentwith generally accepted professionalstandards of care to staff in the areas ofbasic emergency response and first aidinfection control procedures skin care mealplans and sanitation of adaptive equipment

h Develop a system of pharmacy review toappropriately identify adverse druginteractions and recommend follow-up asneeded including medical and laboratorytests

i Provide quality assurance programs includingmedical peer review and quality improvementsystems to regularly evaluate the adequacyof medical care

j Ensure that comprehensive dental assessmentsare recorded in the medical record

2 Occupational and Physical Therapy ServicesPhysical and Nutritional Management

The facility should ensure that residents of LSS receiveadequate and appropriate assessment and treatment by occupationaland physical therapy services consistent with current generallyaccepted professional standards of practice The facility shouldensure that there are a sufficient number of adequately trainedtherapy staff adequate resources and quality improvementprocedures to ensure adequate therapy services includingphysical and nutritional management services to residents inneed Specifically the facility should

a Develop and implement a system to regularlyevaluate and document the status of residents who require therapy services includingbaseline data utilizing generally acceptedmeasurement standards and status updates atregular intervals

b Provide adequate levels of specializedtraining to members of the PhysicalNutritional Management Team to ensure thatservices are provided on the basis of

- 36 -

current generally accepted standards ofpractice

c Identify all individuals at LSS who havephysical and nutritional management needs anddevelop and implement treatment interventionsto address the needs Develop meal plansthat provide staff clear individualizedinstructions regarding necessary supports(eg positioning and food texture) to keepindividuals safe during mealtimes

d Develop and implement a system to monitordocument and respond to individual triggersacross normal life activities related todysphagia regularly review all dysphagiamonitoring data

e Develop competency-based training for all LSSstaff who assist individuals with dysphagiaor choking risks

3 Psychiatric Services

No resident should receive psychotropic medications withouthaving first been thoroughly evaluated and diagnosed according tocurrent professional standards of care including sufficientdocumentation to withstand clinical scrutiny More particularlythe facility should

a Develop standard psychological andpsychiatric assessment and interviewprotocols for reliably reaching a psychiatricdiagnosis for individuals with mild andmoderate mental retardation and standard protocols for individuals with severe andprofound mental retardation Use these protocols to assess each person uponadmission for possible psychiatricdisorder(s)

b Undertake a thorough psychiatricevaluationwork up of all individualscurrently residing at LSS provide aclinically justifiable current diagnosis foreach individual and remove all diagnoseswhich cannot be clinically justified

- 37 -

c As to all residents residing at the facilityreceiving psychotropic medications undertakea new psychiatric consultation to ensure thatall such medications are appropriate and arespecifically matched to current clinicallyjustifiable diagnoses

d Ensure that each psychotropic medication isprescribed in its appropriate therapeuticrange

e Ensure that an interdisciplinary process isutilized at Psychotropic Review Clinics andensure that the following persons attendthe individual the primary care physicianand members of the interdisciplinary team

f If more than one drug is prescribed for thesame indication provide a particularizedjustification at the mechanism level for thepolypharmacy and eliminate all polypharmacythat cannot be justified at the mechanismlevel

g In all prescriptions and psychiatricconsults specify the marker or targetvariables for each drug and the expected timeline for the effects to be evident Monitor the use of each such medication against themarkers or target variables that have beenidentified to evaluate its effect Reassess diagnoses and treatments as appropriate

h Ensure that where psychotropic medicationsare used ongoing consideration is given tothe potential impact of the individualsother medications and the impact on otheraspects of the individuals health

i Develop and implement a system to assess andrefer individuals for individual and grouptherapy as necessary

j Develop and implement a system to evaluateand track the use of pre-medications byoutcomes including injury and cognitivedeficiency alert the psychiatrist when suchmedications are utilized and initiate

- 38 -

programs to reduce the use of suchmedications through de-sensitizationprograms

k Develop and implement a system forcollaboration between the psychiatrist andthe neurologist to treat residents who have amental illness and a seizure disorder

B Protection from Harm

Incidents involving injury and unusual incidents should bereliably and accurately reported and investigated withappropriate follow-up More particularly LSS should

1 Ensure that incidents involving injury and unusualincidents are tracked and analyzed to identifyroot causes

2 Ensure that analyses are transmitted to therelevant disciplines and direct-care areas forresponsive action and responses are monitored toensure that appropriate steps are taken

3 Ensure that assessments are conducted to determine whether root causes have been addressed and ifnot ensure that appropriate feedback is providedto the responsible disciplines and direct-careareas

4 Ensure that all staff and (to the extent possible)residents are trained adequately on processes forreporting abuse and neglect

C Behavior Programs Restraints and Habilitation

1 Behavioral Programs

Behavioral data used in forming psychological assessmentsshould be current accurate and complete behavioral assessmentsshould be complete and substantiated treatments should be gearedtoward improving the individuals quality of life and all of theforegoing should be implemented according to current professionalstandards of care including with documentation sufficient towithstand clinical scrutiny More particularly LSS should

- 39 -

a Develop standard protocols for efficientaccurate collection of behavioral dataincluding relevant contextual information

b Develop standard psychological assessment andinterview protocols Ensure in these protocols that possible medical psychiatricor other motivations for target behaviors areconsidered

c Use these protocols to ensure that functionalassessments and findings about behaviors areadequately substantiated current andcomplete In this regard ensure that otherpotential functions have been assessed andexcluded

d Ensure that behavioral plans are written at alevel that can be understood and implementedby direct care staff

e Ensure that outcomes of behavioral plansinclude fundamental objectives such asreduction in use of medication enhancedlearning opportunities and greater communityintegration

f Ensure that outcomes are frequentlymonitored and that assessments andtreatments are reevaluated promptly if targetbehaviors do not improve

g Ensure that the psychologist-to-residentratio is adequate to support both residentsneeding behavior programs and the facilitysgeneral population

h Ensure that psychiatric disorders orconditions that require primary oradjunctive psychopharmacological treatmentare distinguished from essentially learning-based behavior problems that requirebehavioral or other interventions Expresslyidentify those that have overlap Provide appropriate integrated treatment

i Ensure that behavior plans reflect anassessment in a manner that will permit

- 40 -

clinical review of medical condition(s)psychiatric treatment and the use and impactof psychotropic drugs

2 Restraints and Restrictive Controls

Any device or procedure that restricts limits or directs apersons freedom of movement (including but not limited tomechanical restraints physical or manual restraints chemicalrestraints or time out procedures) (Restrictive Controls)should be permissible only as a last resort More specificallyLSS should

a Develop and implement a policy on restraintsand restrictive measures that comports withcurrent professional standards

b Eliminate use of mechanical restraints from all behavior plans and programs and limit useof mechanical restraints to true emergencysituations

c Eliminate prone holds in all circumstances

d Eliminate as needed or standing ordersfor Restrictive Controls

e Eliminate use of all other Restrictive Controls except

(i) when active treatment strategieshave been attempted or consideredin a clinically justifiable mannerand would not protect the person orothers from harm

(ii) other less intrusive orrestrictive methods have been ineffective and

(iii) as a planned approvedintervention when a personsbehavior poses an immediate risk ofharm to self or others

f Ensure that an individual in restraint is given appropriate opportunities fortoileting nourishment and exercise of

- 41 -

restrained limbs and is released fromrestraint as soon as he or she does not posean immediate risk of harm to any person

g Convene an interdisciplinary team to reviewand revise as appropriate the behaviorsupport plan of any individual placed inrestraints more than three times in any four-week period

h Provide ongoing competency-based training forall psychology supervisory and direct carestaff on treatment and behavioral interventions including the proper use ofrestraints and on data collection regardingrestraint use

i Ensure that only the least restrictiverestraint techniques necessary are utilizedand that restraints are never used as a substitute for adequate behavioralinterventions as punishment or for theconvenience of staff

j Maintain quality assurance oversight toensure that restraint use is proper andaccurately tracked

3 Habilitation

LSS should provide its residents with adequate habilitationincluding but not limited to individualized training educationand skill acquisition programs developed and implemented topromote the growth development and independence of eachresident to minimize regression and loss of skills and toensure reasonable safety security and freedom from undue use ofrestraint More specifically LSS should

a Formalize habilitation planning protocolspolicies and procedures consistent withgenerally accepted professional standards ofcare for use throughout LSS

b Provide staff competency-based training onthe development of individualizedhabilitation plans and their implementation

- 42 -

c Develop and implement individualizedhabilitation programming directly matched toeach residentrsquos goals interests needs andlifestyle preferences

d Monitor and analyze the efficacy of theindividualized planning and implementationprocess Each individualized plan shouldhave outcome measures that specify actionsteps and training strategies and relatedtarget dates and responsible staff Revise programming as appropriate based onoutcomes

D Serving Persons in the Most Integrated SettingAppropriate to Their Individualized Needs

1 Develop and implement comprehensive formalguidelines policies and procedures fortransition planning These should include at aminimum target dates measurable outcomestraining and transition strategies andresponsible staff

2 Assess the specific characteristics of the mostappropriate setting and support needs for eachresident of LSS Assessments (for new admissions)should be done at admission Periodically updatethe assessments for individuals who remain at the facility for extended periods of time

3 If it is determined that a more integrated settingwould appropriately meet the individuals needspromptly develop and implement with appropriateconsent a transition plan that specifies actionsnecessary to ensure a safe successful transitionfrom the facility to a more integrated settingthe names and positions of those responsible forthese actions and corresponding time frames

4 Provide adequate education about availablecommunity placements to residents and theirfamilies or guardians to enable them to makeinformed choices

5 Provide adequate staff training and resources toensure timely and adequate transition planning

- 43 -

The collaborative approach that the parties have taken thusfar has been productive We hope to continue working with theState in an amicable and cooperative fashion to resolve ouroutstanding concerns regarding LSS

Please note that this findings letter is a public documentand it will be posted on the Civil Rights Divisionrsquos websiteWhile we will provide a copy of this letter to any individual orentity upon request as a matter of courtesy we will not postthis letter on the Civil Rights Divisionrsquos website until 10calendar days from the date of this letter

Provided our cooperative relationship continues we alsowould be willing to send our expert consultantsrsquo evaluations ofthe facility under separate cover These reports are not publicdocuments Although the reports are our expert consultantsrsquo workand do not necessarily represent the official conclusions of theDepartment of Justice their observations analyses andrecommendations provide further elaboration of the issuesdiscussed in this letter and offer practical assistance inaddressing them

We are obligated by statute to advise you that in theunexpected event that we are unable to reach a resolutionregarding our concerns the Attorney General may institute alawsuit pursuant to CRIPA to correct deficiencies of the kindidentified in this letter forty-nine days after appropriateofficials have been notified of them 42 USC sect 1997b(a)(1)We would prefer however to resolve this matter by workingcooperatively with you and we are confident that we will be ableto do so in this case The lawyers assigned to this matter willbe contacting your attorneys to discuss this matter in furtherdetail If you have any questions regarding this letter pleasecall Shanetta Y Cutlar Chief of the Civil Rights DivisionrsquosSpecial Litigation Section at 202-514-0195

Sincerely

s Wan J KimWan J Kim Assistant Attorney General

- 44 -

cc The Honorable Greg AbbottAttorney GeneralState of Texas

Adelaide Horn Commissioner Texas Department of Aging and Disability Services

Nancy CondonSuperintendentLSS State School

Richard B Roper IIIUnited States Attorney for theNorthern District of Texas

- 35 -

f Check emergency equipment on every shift anddocument that it is in full working order

g Provide competency-based training consistentwith generally accepted professionalstandards of care to staff in the areas ofbasic emergency response and first aidinfection control procedures skin care mealplans and sanitation of adaptive equipment

h Develop a system of pharmacy review toappropriately identify adverse druginteractions and recommend follow-up asneeded including medical and laboratorytests

i Provide quality assurance programs includingmedical peer review and quality improvementsystems to regularly evaluate the adequacyof medical care

j Ensure that comprehensive dental assessmentsare recorded in the medical record

2 Occupational and Physical Therapy ServicesPhysical and Nutritional Management

The facility should ensure that residents of LSS receiveadequate and appropriate assessment and treatment by occupationaland physical therapy services consistent with current generallyaccepted professional standards of practice The facility shouldensure that there are a sufficient number of adequately trainedtherapy staff adequate resources and quality improvementprocedures to ensure adequate therapy services includingphysical and nutritional management services to residents inneed Specifically the facility should

a Develop and implement a system to regularlyevaluate and document the status of residents who require therapy services includingbaseline data utilizing generally acceptedmeasurement standards and status updates atregular intervals

b Provide adequate levels of specializedtraining to members of the PhysicalNutritional Management Team to ensure thatservices are provided on the basis of

- 36 -

current generally accepted standards ofpractice

c Identify all individuals at LSS who havephysical and nutritional management needs anddevelop and implement treatment interventionsto address the needs Develop meal plansthat provide staff clear individualizedinstructions regarding necessary supports(eg positioning and food texture) to keepindividuals safe during mealtimes

d Develop and implement a system to monitordocument and respond to individual triggersacross normal life activities related todysphagia regularly review all dysphagiamonitoring data

e Develop competency-based training for all LSSstaff who assist individuals with dysphagiaor choking risks

3 Psychiatric Services

No resident should receive psychotropic medications withouthaving first been thoroughly evaluated and diagnosed according tocurrent professional standards of care including sufficientdocumentation to withstand clinical scrutiny More particularlythe facility should

a Develop standard psychological andpsychiatric assessment and interviewprotocols for reliably reaching a psychiatricdiagnosis for individuals with mild andmoderate mental retardation and standard protocols for individuals with severe andprofound mental retardation Use these protocols to assess each person uponadmission for possible psychiatricdisorder(s)

b Undertake a thorough psychiatricevaluationwork up of all individualscurrently residing at LSS provide aclinically justifiable current diagnosis foreach individual and remove all diagnoseswhich cannot be clinically justified

- 37 -

c As to all residents residing at the facilityreceiving psychotropic medications undertakea new psychiatric consultation to ensure thatall such medications are appropriate and arespecifically matched to current clinicallyjustifiable diagnoses

d Ensure that each psychotropic medication isprescribed in its appropriate therapeuticrange

e Ensure that an interdisciplinary process isutilized at Psychotropic Review Clinics andensure that the following persons attendthe individual the primary care physicianand members of the interdisciplinary team

f If more than one drug is prescribed for thesame indication provide a particularizedjustification at the mechanism level for thepolypharmacy and eliminate all polypharmacythat cannot be justified at the mechanismlevel

g In all prescriptions and psychiatricconsults specify the marker or targetvariables for each drug and the expected timeline for the effects to be evident Monitor the use of each such medication against themarkers or target variables that have beenidentified to evaluate its effect Reassess diagnoses and treatments as appropriate

h Ensure that where psychotropic medicationsare used ongoing consideration is given tothe potential impact of the individualsother medications and the impact on otheraspects of the individuals health

i Develop and implement a system to assess andrefer individuals for individual and grouptherapy as necessary

j Develop and implement a system to evaluateand track the use of pre-medications byoutcomes including injury and cognitivedeficiency alert the psychiatrist when suchmedications are utilized and initiate

- 38 -

programs to reduce the use of suchmedications through de-sensitizationprograms

k Develop and implement a system forcollaboration between the psychiatrist andthe neurologist to treat residents who have amental illness and a seizure disorder

B Protection from Harm

Incidents involving injury and unusual incidents should bereliably and accurately reported and investigated withappropriate follow-up More particularly LSS should

1 Ensure that incidents involving injury and unusualincidents are tracked and analyzed to identifyroot causes

2 Ensure that analyses are transmitted to therelevant disciplines and direct-care areas forresponsive action and responses are monitored toensure that appropriate steps are taken

3 Ensure that assessments are conducted to determine whether root causes have been addressed and ifnot ensure that appropriate feedback is providedto the responsible disciplines and direct-careareas

4 Ensure that all staff and (to the extent possible)residents are trained adequately on processes forreporting abuse and neglect

C Behavior Programs Restraints and Habilitation

1 Behavioral Programs

Behavioral data used in forming psychological assessmentsshould be current accurate and complete behavioral assessmentsshould be complete and substantiated treatments should be gearedtoward improving the individuals quality of life and all of theforegoing should be implemented according to current professionalstandards of care including with documentation sufficient towithstand clinical scrutiny More particularly LSS should

- 39 -

a Develop standard protocols for efficientaccurate collection of behavioral dataincluding relevant contextual information

b Develop standard psychological assessment andinterview protocols Ensure in these protocols that possible medical psychiatricor other motivations for target behaviors areconsidered

c Use these protocols to ensure that functionalassessments and findings about behaviors areadequately substantiated current andcomplete In this regard ensure that otherpotential functions have been assessed andexcluded

d Ensure that behavioral plans are written at alevel that can be understood and implementedby direct care staff

e Ensure that outcomes of behavioral plansinclude fundamental objectives such asreduction in use of medication enhancedlearning opportunities and greater communityintegration

f Ensure that outcomes are frequentlymonitored and that assessments andtreatments are reevaluated promptly if targetbehaviors do not improve

g Ensure that the psychologist-to-residentratio is adequate to support both residentsneeding behavior programs and the facilitysgeneral population

h Ensure that psychiatric disorders orconditions that require primary oradjunctive psychopharmacological treatmentare distinguished from essentially learning-based behavior problems that requirebehavioral or other interventions Expresslyidentify those that have overlap Provide appropriate integrated treatment

i Ensure that behavior plans reflect anassessment in a manner that will permit

- 40 -

clinical review of medical condition(s)psychiatric treatment and the use and impactof psychotropic drugs

2 Restraints and Restrictive Controls

Any device or procedure that restricts limits or directs apersons freedom of movement (including but not limited tomechanical restraints physical or manual restraints chemicalrestraints or time out procedures) (Restrictive Controls)should be permissible only as a last resort More specificallyLSS should

a Develop and implement a policy on restraintsand restrictive measures that comports withcurrent professional standards

b Eliminate use of mechanical restraints from all behavior plans and programs and limit useof mechanical restraints to true emergencysituations

c Eliminate prone holds in all circumstances

d Eliminate as needed or standing ordersfor Restrictive Controls

e Eliminate use of all other Restrictive Controls except

(i) when active treatment strategieshave been attempted or consideredin a clinically justifiable mannerand would not protect the person orothers from harm

(ii) other less intrusive orrestrictive methods have been ineffective and

(iii) as a planned approvedintervention when a personsbehavior poses an immediate risk ofharm to self or others

f Ensure that an individual in restraint is given appropriate opportunities fortoileting nourishment and exercise of

- 41 -

restrained limbs and is released fromrestraint as soon as he or she does not posean immediate risk of harm to any person

g Convene an interdisciplinary team to reviewand revise as appropriate the behaviorsupport plan of any individual placed inrestraints more than three times in any four-week period

h Provide ongoing competency-based training forall psychology supervisory and direct carestaff on treatment and behavioral interventions including the proper use ofrestraints and on data collection regardingrestraint use

i Ensure that only the least restrictiverestraint techniques necessary are utilizedand that restraints are never used as a substitute for adequate behavioralinterventions as punishment or for theconvenience of staff

j Maintain quality assurance oversight toensure that restraint use is proper andaccurately tracked

3 Habilitation

LSS should provide its residents with adequate habilitationincluding but not limited to individualized training educationand skill acquisition programs developed and implemented topromote the growth development and independence of eachresident to minimize regression and loss of skills and toensure reasonable safety security and freedom from undue use ofrestraint More specifically LSS should

a Formalize habilitation planning protocolspolicies and procedures consistent withgenerally accepted professional standards ofcare for use throughout LSS

b Provide staff competency-based training onthe development of individualizedhabilitation plans and their implementation

- 42 -

c Develop and implement individualizedhabilitation programming directly matched toeach residentrsquos goals interests needs andlifestyle preferences

d Monitor and analyze the efficacy of theindividualized planning and implementationprocess Each individualized plan shouldhave outcome measures that specify actionsteps and training strategies and relatedtarget dates and responsible staff Revise programming as appropriate based onoutcomes

D Serving Persons in the Most Integrated SettingAppropriate to Their Individualized Needs

1 Develop and implement comprehensive formalguidelines policies and procedures fortransition planning These should include at aminimum target dates measurable outcomestraining and transition strategies andresponsible staff

2 Assess the specific characteristics of the mostappropriate setting and support needs for eachresident of LSS Assessments (for new admissions)should be done at admission Periodically updatethe assessments for individuals who remain at the facility for extended periods of time

3 If it is determined that a more integrated settingwould appropriately meet the individuals needspromptly develop and implement with appropriateconsent a transition plan that specifies actionsnecessary to ensure a safe successful transitionfrom the facility to a more integrated settingthe names and positions of those responsible forthese actions and corresponding time frames

4 Provide adequate education about availablecommunity placements to residents and theirfamilies or guardians to enable them to makeinformed choices

5 Provide adequate staff training and resources toensure timely and adequate transition planning

- 43 -

The collaborative approach that the parties have taken thusfar has been productive We hope to continue working with theState in an amicable and cooperative fashion to resolve ouroutstanding concerns regarding LSS

Please note that this findings letter is a public documentand it will be posted on the Civil Rights Divisionrsquos websiteWhile we will provide a copy of this letter to any individual orentity upon request as a matter of courtesy we will not postthis letter on the Civil Rights Divisionrsquos website until 10calendar days from the date of this letter

Provided our cooperative relationship continues we alsowould be willing to send our expert consultantsrsquo evaluations ofthe facility under separate cover These reports are not publicdocuments Although the reports are our expert consultantsrsquo workand do not necessarily represent the official conclusions of theDepartment of Justice their observations analyses andrecommendations provide further elaboration of the issuesdiscussed in this letter and offer practical assistance inaddressing them

We are obligated by statute to advise you that in theunexpected event that we are unable to reach a resolutionregarding our concerns the Attorney General may institute alawsuit pursuant to CRIPA to correct deficiencies of the kindidentified in this letter forty-nine days after appropriateofficials have been notified of them 42 USC sect 1997b(a)(1)We would prefer however to resolve this matter by workingcooperatively with you and we are confident that we will be ableto do so in this case The lawyers assigned to this matter willbe contacting your attorneys to discuss this matter in furtherdetail If you have any questions regarding this letter pleasecall Shanetta Y Cutlar Chief of the Civil Rights DivisionrsquosSpecial Litigation Section at 202-514-0195

Sincerely

s Wan J KimWan J Kim Assistant Attorney General

- 44 -

cc The Honorable Greg AbbottAttorney GeneralState of Texas

Adelaide Horn Commissioner Texas Department of Aging and Disability Services

Nancy CondonSuperintendentLSS State School

Richard B Roper IIIUnited States Attorney for theNorthern District of Texas

- 36 -

current generally accepted standards ofpractice

c Identify all individuals at LSS who havephysical and nutritional management needs anddevelop and implement treatment interventionsto address the needs Develop meal plansthat provide staff clear individualizedinstructions regarding necessary supports(eg positioning and food texture) to keepindividuals safe during mealtimes

d Develop and implement a system to monitordocument and respond to individual triggersacross normal life activities related todysphagia regularly review all dysphagiamonitoring data

e Develop competency-based training for all LSSstaff who assist individuals with dysphagiaor choking risks

3 Psychiatric Services

No resident should receive psychotropic medications withouthaving first been thoroughly evaluated and diagnosed according tocurrent professional standards of care including sufficientdocumentation to withstand clinical scrutiny More particularlythe facility should

a Develop standard psychological andpsychiatric assessment and interviewprotocols for reliably reaching a psychiatricdiagnosis for individuals with mild andmoderate mental retardation and standard protocols for individuals with severe andprofound mental retardation Use these protocols to assess each person uponadmission for possible psychiatricdisorder(s)

b Undertake a thorough psychiatricevaluationwork up of all individualscurrently residing at LSS provide aclinically justifiable current diagnosis foreach individual and remove all diagnoseswhich cannot be clinically justified

- 37 -

c As to all residents residing at the facilityreceiving psychotropic medications undertakea new psychiatric consultation to ensure thatall such medications are appropriate and arespecifically matched to current clinicallyjustifiable diagnoses

d Ensure that each psychotropic medication isprescribed in its appropriate therapeuticrange

e Ensure that an interdisciplinary process isutilized at Psychotropic Review Clinics andensure that the following persons attendthe individual the primary care physicianand members of the interdisciplinary team

f If more than one drug is prescribed for thesame indication provide a particularizedjustification at the mechanism level for thepolypharmacy and eliminate all polypharmacythat cannot be justified at the mechanismlevel

g In all prescriptions and psychiatricconsults specify the marker or targetvariables for each drug and the expected timeline for the effects to be evident Monitor the use of each such medication against themarkers or target variables that have beenidentified to evaluate its effect Reassess diagnoses and treatments as appropriate

h Ensure that where psychotropic medicationsare used ongoing consideration is given tothe potential impact of the individualsother medications and the impact on otheraspects of the individuals health

i Develop and implement a system to assess andrefer individuals for individual and grouptherapy as necessary

j Develop and implement a system to evaluateand track the use of pre-medications byoutcomes including injury and cognitivedeficiency alert the psychiatrist when suchmedications are utilized and initiate

- 38 -

programs to reduce the use of suchmedications through de-sensitizationprograms

k Develop and implement a system forcollaboration between the psychiatrist andthe neurologist to treat residents who have amental illness and a seizure disorder

B Protection from Harm

Incidents involving injury and unusual incidents should bereliably and accurately reported and investigated withappropriate follow-up More particularly LSS should

1 Ensure that incidents involving injury and unusualincidents are tracked and analyzed to identifyroot causes

2 Ensure that analyses are transmitted to therelevant disciplines and direct-care areas forresponsive action and responses are monitored toensure that appropriate steps are taken

3 Ensure that assessments are conducted to determine whether root causes have been addressed and ifnot ensure that appropriate feedback is providedto the responsible disciplines and direct-careareas

4 Ensure that all staff and (to the extent possible)residents are trained adequately on processes forreporting abuse and neglect

C Behavior Programs Restraints and Habilitation

1 Behavioral Programs

Behavioral data used in forming psychological assessmentsshould be current accurate and complete behavioral assessmentsshould be complete and substantiated treatments should be gearedtoward improving the individuals quality of life and all of theforegoing should be implemented according to current professionalstandards of care including with documentation sufficient towithstand clinical scrutiny More particularly LSS should

- 39 -

a Develop standard protocols for efficientaccurate collection of behavioral dataincluding relevant contextual information

b Develop standard psychological assessment andinterview protocols Ensure in these protocols that possible medical psychiatricor other motivations for target behaviors areconsidered

c Use these protocols to ensure that functionalassessments and findings about behaviors areadequately substantiated current andcomplete In this regard ensure that otherpotential functions have been assessed andexcluded

d Ensure that behavioral plans are written at alevel that can be understood and implementedby direct care staff

e Ensure that outcomes of behavioral plansinclude fundamental objectives such asreduction in use of medication enhancedlearning opportunities and greater communityintegration

f Ensure that outcomes are frequentlymonitored and that assessments andtreatments are reevaluated promptly if targetbehaviors do not improve

g Ensure that the psychologist-to-residentratio is adequate to support both residentsneeding behavior programs and the facilitysgeneral population

h Ensure that psychiatric disorders orconditions that require primary oradjunctive psychopharmacological treatmentare distinguished from essentially learning-based behavior problems that requirebehavioral or other interventions Expresslyidentify those that have overlap Provide appropriate integrated treatment

i Ensure that behavior plans reflect anassessment in a manner that will permit

- 40 -

clinical review of medical condition(s)psychiatric treatment and the use and impactof psychotropic drugs

2 Restraints and Restrictive Controls

Any device or procedure that restricts limits or directs apersons freedom of movement (including but not limited tomechanical restraints physical or manual restraints chemicalrestraints or time out procedures) (Restrictive Controls)should be permissible only as a last resort More specificallyLSS should

a Develop and implement a policy on restraintsand restrictive measures that comports withcurrent professional standards

b Eliminate use of mechanical restraints from all behavior plans and programs and limit useof mechanical restraints to true emergencysituations

c Eliminate prone holds in all circumstances

d Eliminate as needed or standing ordersfor Restrictive Controls

e Eliminate use of all other Restrictive Controls except

(i) when active treatment strategieshave been attempted or consideredin a clinically justifiable mannerand would not protect the person orothers from harm

(ii) other less intrusive orrestrictive methods have been ineffective and

(iii) as a planned approvedintervention when a personsbehavior poses an immediate risk ofharm to self or others

f Ensure that an individual in restraint is given appropriate opportunities fortoileting nourishment and exercise of

- 41 -

restrained limbs and is released fromrestraint as soon as he or she does not posean immediate risk of harm to any person

g Convene an interdisciplinary team to reviewand revise as appropriate the behaviorsupport plan of any individual placed inrestraints more than three times in any four-week period

h Provide ongoing competency-based training forall psychology supervisory and direct carestaff on treatment and behavioral interventions including the proper use ofrestraints and on data collection regardingrestraint use

i Ensure that only the least restrictiverestraint techniques necessary are utilizedand that restraints are never used as a substitute for adequate behavioralinterventions as punishment or for theconvenience of staff

j Maintain quality assurance oversight toensure that restraint use is proper andaccurately tracked

3 Habilitation

LSS should provide its residents with adequate habilitationincluding but not limited to individualized training educationand skill acquisition programs developed and implemented topromote the growth development and independence of eachresident to minimize regression and loss of skills and toensure reasonable safety security and freedom from undue use ofrestraint More specifically LSS should

a Formalize habilitation planning protocolspolicies and procedures consistent withgenerally accepted professional standards ofcare for use throughout LSS

b Provide staff competency-based training onthe development of individualizedhabilitation plans and their implementation

- 42 -

c Develop and implement individualizedhabilitation programming directly matched toeach residentrsquos goals interests needs andlifestyle preferences

d Monitor and analyze the efficacy of theindividualized planning and implementationprocess Each individualized plan shouldhave outcome measures that specify actionsteps and training strategies and relatedtarget dates and responsible staff Revise programming as appropriate based onoutcomes

D Serving Persons in the Most Integrated SettingAppropriate to Their Individualized Needs

1 Develop and implement comprehensive formalguidelines policies and procedures fortransition planning These should include at aminimum target dates measurable outcomestraining and transition strategies andresponsible staff

2 Assess the specific characteristics of the mostappropriate setting and support needs for eachresident of LSS Assessments (for new admissions)should be done at admission Periodically updatethe assessments for individuals who remain at the facility for extended periods of time

3 If it is determined that a more integrated settingwould appropriately meet the individuals needspromptly develop and implement with appropriateconsent a transition plan that specifies actionsnecessary to ensure a safe successful transitionfrom the facility to a more integrated settingthe names and positions of those responsible forthese actions and corresponding time frames

4 Provide adequate education about availablecommunity placements to residents and theirfamilies or guardians to enable them to makeinformed choices

5 Provide adequate staff training and resources toensure timely and adequate transition planning

- 43 -

The collaborative approach that the parties have taken thusfar has been productive We hope to continue working with theState in an amicable and cooperative fashion to resolve ouroutstanding concerns regarding LSS

Please note that this findings letter is a public documentand it will be posted on the Civil Rights Divisionrsquos websiteWhile we will provide a copy of this letter to any individual orentity upon request as a matter of courtesy we will not postthis letter on the Civil Rights Divisionrsquos website until 10calendar days from the date of this letter

Provided our cooperative relationship continues we alsowould be willing to send our expert consultantsrsquo evaluations ofthe facility under separate cover These reports are not publicdocuments Although the reports are our expert consultantsrsquo workand do not necessarily represent the official conclusions of theDepartment of Justice their observations analyses andrecommendations provide further elaboration of the issuesdiscussed in this letter and offer practical assistance inaddressing them

We are obligated by statute to advise you that in theunexpected event that we are unable to reach a resolutionregarding our concerns the Attorney General may institute alawsuit pursuant to CRIPA to correct deficiencies of the kindidentified in this letter forty-nine days after appropriateofficials have been notified of them 42 USC sect 1997b(a)(1)We would prefer however to resolve this matter by workingcooperatively with you and we are confident that we will be ableto do so in this case The lawyers assigned to this matter willbe contacting your attorneys to discuss this matter in furtherdetail If you have any questions regarding this letter pleasecall Shanetta Y Cutlar Chief of the Civil Rights DivisionrsquosSpecial Litigation Section at 202-514-0195

Sincerely

s Wan J KimWan J Kim Assistant Attorney General

- 44 -

cc The Honorable Greg AbbottAttorney GeneralState of Texas

Adelaide Horn Commissioner Texas Department of Aging and Disability Services

Nancy CondonSuperintendentLSS State School

Richard B Roper IIIUnited States Attorney for theNorthern District of Texas

- 37 -

c As to all residents residing at the facilityreceiving psychotropic medications undertakea new psychiatric consultation to ensure thatall such medications are appropriate and arespecifically matched to current clinicallyjustifiable diagnoses

d Ensure that each psychotropic medication isprescribed in its appropriate therapeuticrange

e Ensure that an interdisciplinary process isutilized at Psychotropic Review Clinics andensure that the following persons attendthe individual the primary care physicianand members of the interdisciplinary team

f If more than one drug is prescribed for thesame indication provide a particularizedjustification at the mechanism level for thepolypharmacy and eliminate all polypharmacythat cannot be justified at the mechanismlevel

g In all prescriptions and psychiatricconsults specify the marker or targetvariables for each drug and the expected timeline for the effects to be evident Monitor the use of each such medication against themarkers or target variables that have beenidentified to evaluate its effect Reassess diagnoses and treatments as appropriate

h Ensure that where psychotropic medicationsare used ongoing consideration is given tothe potential impact of the individualsother medications and the impact on otheraspects of the individuals health

i Develop and implement a system to assess andrefer individuals for individual and grouptherapy as necessary

j Develop and implement a system to evaluateand track the use of pre-medications byoutcomes including injury and cognitivedeficiency alert the psychiatrist when suchmedications are utilized and initiate

- 38 -

programs to reduce the use of suchmedications through de-sensitizationprograms

k Develop and implement a system forcollaboration between the psychiatrist andthe neurologist to treat residents who have amental illness and a seizure disorder

B Protection from Harm

Incidents involving injury and unusual incidents should bereliably and accurately reported and investigated withappropriate follow-up More particularly LSS should

1 Ensure that incidents involving injury and unusualincidents are tracked and analyzed to identifyroot causes

2 Ensure that analyses are transmitted to therelevant disciplines and direct-care areas forresponsive action and responses are monitored toensure that appropriate steps are taken

3 Ensure that assessments are conducted to determine whether root causes have been addressed and ifnot ensure that appropriate feedback is providedto the responsible disciplines and direct-careareas

4 Ensure that all staff and (to the extent possible)residents are trained adequately on processes forreporting abuse and neglect

C Behavior Programs Restraints and Habilitation

1 Behavioral Programs

Behavioral data used in forming psychological assessmentsshould be current accurate and complete behavioral assessmentsshould be complete and substantiated treatments should be gearedtoward improving the individuals quality of life and all of theforegoing should be implemented according to current professionalstandards of care including with documentation sufficient towithstand clinical scrutiny More particularly LSS should

- 39 -

a Develop standard protocols for efficientaccurate collection of behavioral dataincluding relevant contextual information

b Develop standard psychological assessment andinterview protocols Ensure in these protocols that possible medical psychiatricor other motivations for target behaviors areconsidered

c Use these protocols to ensure that functionalassessments and findings about behaviors areadequately substantiated current andcomplete In this regard ensure that otherpotential functions have been assessed andexcluded

d Ensure that behavioral plans are written at alevel that can be understood and implementedby direct care staff

e Ensure that outcomes of behavioral plansinclude fundamental objectives such asreduction in use of medication enhancedlearning opportunities and greater communityintegration

f Ensure that outcomes are frequentlymonitored and that assessments andtreatments are reevaluated promptly if targetbehaviors do not improve

g Ensure that the psychologist-to-residentratio is adequate to support both residentsneeding behavior programs and the facilitysgeneral population

h Ensure that psychiatric disorders orconditions that require primary oradjunctive psychopharmacological treatmentare distinguished from essentially learning-based behavior problems that requirebehavioral or other interventions Expresslyidentify those that have overlap Provide appropriate integrated treatment

i Ensure that behavior plans reflect anassessment in a manner that will permit

- 40 -

clinical review of medical condition(s)psychiatric treatment and the use and impactof psychotropic drugs

2 Restraints and Restrictive Controls

Any device or procedure that restricts limits or directs apersons freedom of movement (including but not limited tomechanical restraints physical or manual restraints chemicalrestraints or time out procedures) (Restrictive Controls)should be permissible only as a last resort More specificallyLSS should

a Develop and implement a policy on restraintsand restrictive measures that comports withcurrent professional standards

b Eliminate use of mechanical restraints from all behavior plans and programs and limit useof mechanical restraints to true emergencysituations

c Eliminate prone holds in all circumstances

d Eliminate as needed or standing ordersfor Restrictive Controls

e Eliminate use of all other Restrictive Controls except

(i) when active treatment strategieshave been attempted or consideredin a clinically justifiable mannerand would not protect the person orothers from harm

(ii) other less intrusive orrestrictive methods have been ineffective and

(iii) as a planned approvedintervention when a personsbehavior poses an immediate risk ofharm to self or others

f Ensure that an individual in restraint is given appropriate opportunities fortoileting nourishment and exercise of

- 41 -

restrained limbs and is released fromrestraint as soon as he or she does not posean immediate risk of harm to any person

g Convene an interdisciplinary team to reviewand revise as appropriate the behaviorsupport plan of any individual placed inrestraints more than three times in any four-week period

h Provide ongoing competency-based training forall psychology supervisory and direct carestaff on treatment and behavioral interventions including the proper use ofrestraints and on data collection regardingrestraint use

i Ensure that only the least restrictiverestraint techniques necessary are utilizedand that restraints are never used as a substitute for adequate behavioralinterventions as punishment or for theconvenience of staff

j Maintain quality assurance oversight toensure that restraint use is proper andaccurately tracked

3 Habilitation

LSS should provide its residents with adequate habilitationincluding but not limited to individualized training educationand skill acquisition programs developed and implemented topromote the growth development and independence of eachresident to minimize regression and loss of skills and toensure reasonable safety security and freedom from undue use ofrestraint More specifically LSS should

a Formalize habilitation planning protocolspolicies and procedures consistent withgenerally accepted professional standards ofcare for use throughout LSS

b Provide staff competency-based training onthe development of individualizedhabilitation plans and their implementation

- 42 -

c Develop and implement individualizedhabilitation programming directly matched toeach residentrsquos goals interests needs andlifestyle preferences

d Monitor and analyze the efficacy of theindividualized planning and implementationprocess Each individualized plan shouldhave outcome measures that specify actionsteps and training strategies and relatedtarget dates and responsible staff Revise programming as appropriate based onoutcomes

D Serving Persons in the Most Integrated SettingAppropriate to Their Individualized Needs

1 Develop and implement comprehensive formalguidelines policies and procedures fortransition planning These should include at aminimum target dates measurable outcomestraining and transition strategies andresponsible staff

2 Assess the specific characteristics of the mostappropriate setting and support needs for eachresident of LSS Assessments (for new admissions)should be done at admission Periodically updatethe assessments for individuals who remain at the facility for extended periods of time

3 If it is determined that a more integrated settingwould appropriately meet the individuals needspromptly develop and implement with appropriateconsent a transition plan that specifies actionsnecessary to ensure a safe successful transitionfrom the facility to a more integrated settingthe names and positions of those responsible forthese actions and corresponding time frames

4 Provide adequate education about availablecommunity placements to residents and theirfamilies or guardians to enable them to makeinformed choices

5 Provide adequate staff training and resources toensure timely and adequate transition planning

- 43 -

The collaborative approach that the parties have taken thusfar has been productive We hope to continue working with theState in an amicable and cooperative fashion to resolve ouroutstanding concerns regarding LSS

Please note that this findings letter is a public documentand it will be posted on the Civil Rights Divisionrsquos websiteWhile we will provide a copy of this letter to any individual orentity upon request as a matter of courtesy we will not postthis letter on the Civil Rights Divisionrsquos website until 10calendar days from the date of this letter

Provided our cooperative relationship continues we alsowould be willing to send our expert consultantsrsquo evaluations ofthe facility under separate cover These reports are not publicdocuments Although the reports are our expert consultantsrsquo workand do not necessarily represent the official conclusions of theDepartment of Justice their observations analyses andrecommendations provide further elaboration of the issuesdiscussed in this letter and offer practical assistance inaddressing them

We are obligated by statute to advise you that in theunexpected event that we are unable to reach a resolutionregarding our concerns the Attorney General may institute alawsuit pursuant to CRIPA to correct deficiencies of the kindidentified in this letter forty-nine days after appropriateofficials have been notified of them 42 USC sect 1997b(a)(1)We would prefer however to resolve this matter by workingcooperatively with you and we are confident that we will be ableto do so in this case The lawyers assigned to this matter willbe contacting your attorneys to discuss this matter in furtherdetail If you have any questions regarding this letter pleasecall Shanetta Y Cutlar Chief of the Civil Rights DivisionrsquosSpecial Litigation Section at 202-514-0195

Sincerely

s Wan J KimWan J Kim Assistant Attorney General

- 44 -

cc The Honorable Greg AbbottAttorney GeneralState of Texas

Adelaide Horn Commissioner Texas Department of Aging and Disability Services

Nancy CondonSuperintendentLSS State School

Richard B Roper IIIUnited States Attorney for theNorthern District of Texas

- 38 -

programs to reduce the use of suchmedications through de-sensitizationprograms

k Develop and implement a system forcollaboration between the psychiatrist andthe neurologist to treat residents who have amental illness and a seizure disorder

B Protection from Harm

Incidents involving injury and unusual incidents should bereliably and accurately reported and investigated withappropriate follow-up More particularly LSS should

1 Ensure that incidents involving injury and unusualincidents are tracked and analyzed to identifyroot causes

2 Ensure that analyses are transmitted to therelevant disciplines and direct-care areas forresponsive action and responses are monitored toensure that appropriate steps are taken

3 Ensure that assessments are conducted to determine whether root causes have been addressed and ifnot ensure that appropriate feedback is providedto the responsible disciplines and direct-careareas

4 Ensure that all staff and (to the extent possible)residents are trained adequately on processes forreporting abuse and neglect

C Behavior Programs Restraints and Habilitation

1 Behavioral Programs

Behavioral data used in forming psychological assessmentsshould be current accurate and complete behavioral assessmentsshould be complete and substantiated treatments should be gearedtoward improving the individuals quality of life and all of theforegoing should be implemented according to current professionalstandards of care including with documentation sufficient towithstand clinical scrutiny More particularly LSS should

- 39 -

a Develop standard protocols for efficientaccurate collection of behavioral dataincluding relevant contextual information

b Develop standard psychological assessment andinterview protocols Ensure in these protocols that possible medical psychiatricor other motivations for target behaviors areconsidered

c Use these protocols to ensure that functionalassessments and findings about behaviors areadequately substantiated current andcomplete In this regard ensure that otherpotential functions have been assessed andexcluded

d Ensure that behavioral plans are written at alevel that can be understood and implementedby direct care staff

e Ensure that outcomes of behavioral plansinclude fundamental objectives such asreduction in use of medication enhancedlearning opportunities and greater communityintegration

f Ensure that outcomes are frequentlymonitored and that assessments andtreatments are reevaluated promptly if targetbehaviors do not improve

g Ensure that the psychologist-to-residentratio is adequate to support both residentsneeding behavior programs and the facilitysgeneral population

h Ensure that psychiatric disorders orconditions that require primary oradjunctive psychopharmacological treatmentare distinguished from essentially learning-based behavior problems that requirebehavioral or other interventions Expresslyidentify those that have overlap Provide appropriate integrated treatment

i Ensure that behavior plans reflect anassessment in a manner that will permit

- 40 -

clinical review of medical condition(s)psychiatric treatment and the use and impactof psychotropic drugs

2 Restraints and Restrictive Controls

Any device or procedure that restricts limits or directs apersons freedom of movement (including but not limited tomechanical restraints physical or manual restraints chemicalrestraints or time out procedures) (Restrictive Controls)should be permissible only as a last resort More specificallyLSS should

a Develop and implement a policy on restraintsand restrictive measures that comports withcurrent professional standards

b Eliminate use of mechanical restraints from all behavior plans and programs and limit useof mechanical restraints to true emergencysituations

c Eliminate prone holds in all circumstances

d Eliminate as needed or standing ordersfor Restrictive Controls

e Eliminate use of all other Restrictive Controls except

(i) when active treatment strategieshave been attempted or consideredin a clinically justifiable mannerand would not protect the person orothers from harm

(ii) other less intrusive orrestrictive methods have been ineffective and

(iii) as a planned approvedintervention when a personsbehavior poses an immediate risk ofharm to self or others

f Ensure that an individual in restraint is given appropriate opportunities fortoileting nourishment and exercise of

- 41 -

restrained limbs and is released fromrestraint as soon as he or she does not posean immediate risk of harm to any person

g Convene an interdisciplinary team to reviewand revise as appropriate the behaviorsupport plan of any individual placed inrestraints more than three times in any four-week period

h Provide ongoing competency-based training forall psychology supervisory and direct carestaff on treatment and behavioral interventions including the proper use ofrestraints and on data collection regardingrestraint use

i Ensure that only the least restrictiverestraint techniques necessary are utilizedand that restraints are never used as a substitute for adequate behavioralinterventions as punishment or for theconvenience of staff

j Maintain quality assurance oversight toensure that restraint use is proper andaccurately tracked

3 Habilitation

LSS should provide its residents with adequate habilitationincluding but not limited to individualized training educationand skill acquisition programs developed and implemented topromote the growth development and independence of eachresident to minimize regression and loss of skills and toensure reasonable safety security and freedom from undue use ofrestraint More specifically LSS should

a Formalize habilitation planning protocolspolicies and procedures consistent withgenerally accepted professional standards ofcare for use throughout LSS

b Provide staff competency-based training onthe development of individualizedhabilitation plans and their implementation

- 42 -

c Develop and implement individualizedhabilitation programming directly matched toeach residentrsquos goals interests needs andlifestyle preferences

d Monitor and analyze the efficacy of theindividualized planning and implementationprocess Each individualized plan shouldhave outcome measures that specify actionsteps and training strategies and relatedtarget dates and responsible staff Revise programming as appropriate based onoutcomes

D Serving Persons in the Most Integrated SettingAppropriate to Their Individualized Needs

1 Develop and implement comprehensive formalguidelines policies and procedures fortransition planning These should include at aminimum target dates measurable outcomestraining and transition strategies andresponsible staff

2 Assess the specific characteristics of the mostappropriate setting and support needs for eachresident of LSS Assessments (for new admissions)should be done at admission Periodically updatethe assessments for individuals who remain at the facility for extended periods of time

3 If it is determined that a more integrated settingwould appropriately meet the individuals needspromptly develop and implement with appropriateconsent a transition plan that specifies actionsnecessary to ensure a safe successful transitionfrom the facility to a more integrated settingthe names and positions of those responsible forthese actions and corresponding time frames

4 Provide adequate education about availablecommunity placements to residents and theirfamilies or guardians to enable them to makeinformed choices

5 Provide adequate staff training and resources toensure timely and adequate transition planning

- 43 -

The collaborative approach that the parties have taken thusfar has been productive We hope to continue working with theState in an amicable and cooperative fashion to resolve ouroutstanding concerns regarding LSS

Please note that this findings letter is a public documentand it will be posted on the Civil Rights Divisionrsquos websiteWhile we will provide a copy of this letter to any individual orentity upon request as a matter of courtesy we will not postthis letter on the Civil Rights Divisionrsquos website until 10calendar days from the date of this letter

Provided our cooperative relationship continues we alsowould be willing to send our expert consultantsrsquo evaluations ofthe facility under separate cover These reports are not publicdocuments Although the reports are our expert consultantsrsquo workand do not necessarily represent the official conclusions of theDepartment of Justice their observations analyses andrecommendations provide further elaboration of the issuesdiscussed in this letter and offer practical assistance inaddressing them

We are obligated by statute to advise you that in theunexpected event that we are unable to reach a resolutionregarding our concerns the Attorney General may institute alawsuit pursuant to CRIPA to correct deficiencies of the kindidentified in this letter forty-nine days after appropriateofficials have been notified of them 42 USC sect 1997b(a)(1)We would prefer however to resolve this matter by workingcooperatively with you and we are confident that we will be ableto do so in this case The lawyers assigned to this matter willbe contacting your attorneys to discuss this matter in furtherdetail If you have any questions regarding this letter pleasecall Shanetta Y Cutlar Chief of the Civil Rights DivisionrsquosSpecial Litigation Section at 202-514-0195

Sincerely

s Wan J KimWan J Kim Assistant Attorney General

- 44 -

cc The Honorable Greg AbbottAttorney GeneralState of Texas

Adelaide Horn Commissioner Texas Department of Aging and Disability Services

Nancy CondonSuperintendentLSS State School

Richard B Roper IIIUnited States Attorney for theNorthern District of Texas

- 39 -

a Develop standard protocols for efficientaccurate collection of behavioral dataincluding relevant contextual information

b Develop standard psychological assessment andinterview protocols Ensure in these protocols that possible medical psychiatricor other motivations for target behaviors areconsidered

c Use these protocols to ensure that functionalassessments and findings about behaviors areadequately substantiated current andcomplete In this regard ensure that otherpotential functions have been assessed andexcluded

d Ensure that behavioral plans are written at alevel that can be understood and implementedby direct care staff

e Ensure that outcomes of behavioral plansinclude fundamental objectives such asreduction in use of medication enhancedlearning opportunities and greater communityintegration

f Ensure that outcomes are frequentlymonitored and that assessments andtreatments are reevaluated promptly if targetbehaviors do not improve

g Ensure that the psychologist-to-residentratio is adequate to support both residentsneeding behavior programs and the facilitysgeneral population

h Ensure that psychiatric disorders orconditions that require primary oradjunctive psychopharmacological treatmentare distinguished from essentially learning-based behavior problems that requirebehavioral or other interventions Expresslyidentify those that have overlap Provide appropriate integrated treatment

i Ensure that behavior plans reflect anassessment in a manner that will permit

- 40 -

clinical review of medical condition(s)psychiatric treatment and the use and impactof psychotropic drugs

2 Restraints and Restrictive Controls

Any device or procedure that restricts limits or directs apersons freedom of movement (including but not limited tomechanical restraints physical or manual restraints chemicalrestraints or time out procedures) (Restrictive Controls)should be permissible only as a last resort More specificallyLSS should

a Develop and implement a policy on restraintsand restrictive measures that comports withcurrent professional standards

b Eliminate use of mechanical restraints from all behavior plans and programs and limit useof mechanical restraints to true emergencysituations

c Eliminate prone holds in all circumstances

d Eliminate as needed or standing ordersfor Restrictive Controls

e Eliminate use of all other Restrictive Controls except

(i) when active treatment strategieshave been attempted or consideredin a clinically justifiable mannerand would not protect the person orothers from harm

(ii) other less intrusive orrestrictive methods have been ineffective and

(iii) as a planned approvedintervention when a personsbehavior poses an immediate risk ofharm to self or others

f Ensure that an individual in restraint is given appropriate opportunities fortoileting nourishment and exercise of

- 41 -

restrained limbs and is released fromrestraint as soon as he or she does not posean immediate risk of harm to any person

g Convene an interdisciplinary team to reviewand revise as appropriate the behaviorsupport plan of any individual placed inrestraints more than three times in any four-week period

h Provide ongoing competency-based training forall psychology supervisory and direct carestaff on treatment and behavioral interventions including the proper use ofrestraints and on data collection regardingrestraint use

i Ensure that only the least restrictiverestraint techniques necessary are utilizedand that restraints are never used as a substitute for adequate behavioralinterventions as punishment or for theconvenience of staff

j Maintain quality assurance oversight toensure that restraint use is proper andaccurately tracked

3 Habilitation

LSS should provide its residents with adequate habilitationincluding but not limited to individualized training educationand skill acquisition programs developed and implemented topromote the growth development and independence of eachresident to minimize regression and loss of skills and toensure reasonable safety security and freedom from undue use ofrestraint More specifically LSS should

a Formalize habilitation planning protocolspolicies and procedures consistent withgenerally accepted professional standards ofcare for use throughout LSS

b Provide staff competency-based training onthe development of individualizedhabilitation plans and their implementation

- 42 -

c Develop and implement individualizedhabilitation programming directly matched toeach residentrsquos goals interests needs andlifestyle preferences

d Monitor and analyze the efficacy of theindividualized planning and implementationprocess Each individualized plan shouldhave outcome measures that specify actionsteps and training strategies and relatedtarget dates and responsible staff Revise programming as appropriate based onoutcomes

D Serving Persons in the Most Integrated SettingAppropriate to Their Individualized Needs

1 Develop and implement comprehensive formalguidelines policies and procedures fortransition planning These should include at aminimum target dates measurable outcomestraining and transition strategies andresponsible staff

2 Assess the specific characteristics of the mostappropriate setting and support needs for eachresident of LSS Assessments (for new admissions)should be done at admission Periodically updatethe assessments for individuals who remain at the facility for extended periods of time

3 If it is determined that a more integrated settingwould appropriately meet the individuals needspromptly develop and implement with appropriateconsent a transition plan that specifies actionsnecessary to ensure a safe successful transitionfrom the facility to a more integrated settingthe names and positions of those responsible forthese actions and corresponding time frames

4 Provide adequate education about availablecommunity placements to residents and theirfamilies or guardians to enable them to makeinformed choices

5 Provide adequate staff training and resources toensure timely and adequate transition planning

- 43 -

The collaborative approach that the parties have taken thusfar has been productive We hope to continue working with theState in an amicable and cooperative fashion to resolve ouroutstanding concerns regarding LSS

Please note that this findings letter is a public documentand it will be posted on the Civil Rights Divisionrsquos websiteWhile we will provide a copy of this letter to any individual orentity upon request as a matter of courtesy we will not postthis letter on the Civil Rights Divisionrsquos website until 10calendar days from the date of this letter

Provided our cooperative relationship continues we alsowould be willing to send our expert consultantsrsquo evaluations ofthe facility under separate cover These reports are not publicdocuments Although the reports are our expert consultantsrsquo workand do not necessarily represent the official conclusions of theDepartment of Justice their observations analyses andrecommendations provide further elaboration of the issuesdiscussed in this letter and offer practical assistance inaddressing them

We are obligated by statute to advise you that in theunexpected event that we are unable to reach a resolutionregarding our concerns the Attorney General may institute alawsuit pursuant to CRIPA to correct deficiencies of the kindidentified in this letter forty-nine days after appropriateofficials have been notified of them 42 USC sect 1997b(a)(1)We would prefer however to resolve this matter by workingcooperatively with you and we are confident that we will be ableto do so in this case The lawyers assigned to this matter willbe contacting your attorneys to discuss this matter in furtherdetail If you have any questions regarding this letter pleasecall Shanetta Y Cutlar Chief of the Civil Rights DivisionrsquosSpecial Litigation Section at 202-514-0195

Sincerely

s Wan J KimWan J Kim Assistant Attorney General

- 44 -

cc The Honorable Greg AbbottAttorney GeneralState of Texas

Adelaide Horn Commissioner Texas Department of Aging and Disability Services

Nancy CondonSuperintendentLSS State School

Richard B Roper IIIUnited States Attorney for theNorthern District of Texas

- 40 -

clinical review of medical condition(s)psychiatric treatment and the use and impactof psychotropic drugs

2 Restraints and Restrictive Controls

Any device or procedure that restricts limits or directs apersons freedom of movement (including but not limited tomechanical restraints physical or manual restraints chemicalrestraints or time out procedures) (Restrictive Controls)should be permissible only as a last resort More specificallyLSS should

a Develop and implement a policy on restraintsand restrictive measures that comports withcurrent professional standards

b Eliminate use of mechanical restraints from all behavior plans and programs and limit useof mechanical restraints to true emergencysituations

c Eliminate prone holds in all circumstances

d Eliminate as needed or standing ordersfor Restrictive Controls

e Eliminate use of all other Restrictive Controls except

(i) when active treatment strategieshave been attempted or consideredin a clinically justifiable mannerand would not protect the person orothers from harm

(ii) other less intrusive orrestrictive methods have been ineffective and

(iii) as a planned approvedintervention when a personsbehavior poses an immediate risk ofharm to self or others

f Ensure that an individual in restraint is given appropriate opportunities fortoileting nourishment and exercise of

- 41 -

restrained limbs and is released fromrestraint as soon as he or she does not posean immediate risk of harm to any person

g Convene an interdisciplinary team to reviewand revise as appropriate the behaviorsupport plan of any individual placed inrestraints more than three times in any four-week period

h Provide ongoing competency-based training forall psychology supervisory and direct carestaff on treatment and behavioral interventions including the proper use ofrestraints and on data collection regardingrestraint use

i Ensure that only the least restrictiverestraint techniques necessary are utilizedand that restraints are never used as a substitute for adequate behavioralinterventions as punishment or for theconvenience of staff

j Maintain quality assurance oversight toensure that restraint use is proper andaccurately tracked

3 Habilitation

LSS should provide its residents with adequate habilitationincluding but not limited to individualized training educationand skill acquisition programs developed and implemented topromote the growth development and independence of eachresident to minimize regression and loss of skills and toensure reasonable safety security and freedom from undue use ofrestraint More specifically LSS should

a Formalize habilitation planning protocolspolicies and procedures consistent withgenerally accepted professional standards ofcare for use throughout LSS

b Provide staff competency-based training onthe development of individualizedhabilitation plans and their implementation

- 42 -

c Develop and implement individualizedhabilitation programming directly matched toeach residentrsquos goals interests needs andlifestyle preferences

d Monitor and analyze the efficacy of theindividualized planning and implementationprocess Each individualized plan shouldhave outcome measures that specify actionsteps and training strategies and relatedtarget dates and responsible staff Revise programming as appropriate based onoutcomes

D Serving Persons in the Most Integrated SettingAppropriate to Their Individualized Needs

1 Develop and implement comprehensive formalguidelines policies and procedures fortransition planning These should include at aminimum target dates measurable outcomestraining and transition strategies andresponsible staff

2 Assess the specific characteristics of the mostappropriate setting and support needs for eachresident of LSS Assessments (for new admissions)should be done at admission Periodically updatethe assessments for individuals who remain at the facility for extended periods of time

3 If it is determined that a more integrated settingwould appropriately meet the individuals needspromptly develop and implement with appropriateconsent a transition plan that specifies actionsnecessary to ensure a safe successful transitionfrom the facility to a more integrated settingthe names and positions of those responsible forthese actions and corresponding time frames

4 Provide adequate education about availablecommunity placements to residents and theirfamilies or guardians to enable them to makeinformed choices

5 Provide adequate staff training and resources toensure timely and adequate transition planning

- 43 -

The collaborative approach that the parties have taken thusfar has been productive We hope to continue working with theState in an amicable and cooperative fashion to resolve ouroutstanding concerns regarding LSS

Please note that this findings letter is a public documentand it will be posted on the Civil Rights Divisionrsquos websiteWhile we will provide a copy of this letter to any individual orentity upon request as a matter of courtesy we will not postthis letter on the Civil Rights Divisionrsquos website until 10calendar days from the date of this letter

Provided our cooperative relationship continues we alsowould be willing to send our expert consultantsrsquo evaluations ofthe facility under separate cover These reports are not publicdocuments Although the reports are our expert consultantsrsquo workand do not necessarily represent the official conclusions of theDepartment of Justice their observations analyses andrecommendations provide further elaboration of the issuesdiscussed in this letter and offer practical assistance inaddressing them

We are obligated by statute to advise you that in theunexpected event that we are unable to reach a resolutionregarding our concerns the Attorney General may institute alawsuit pursuant to CRIPA to correct deficiencies of the kindidentified in this letter forty-nine days after appropriateofficials have been notified of them 42 USC sect 1997b(a)(1)We would prefer however to resolve this matter by workingcooperatively with you and we are confident that we will be ableto do so in this case The lawyers assigned to this matter willbe contacting your attorneys to discuss this matter in furtherdetail If you have any questions regarding this letter pleasecall Shanetta Y Cutlar Chief of the Civil Rights DivisionrsquosSpecial Litigation Section at 202-514-0195

Sincerely

s Wan J KimWan J Kim Assistant Attorney General

- 44 -

cc The Honorable Greg AbbottAttorney GeneralState of Texas

Adelaide Horn Commissioner Texas Department of Aging and Disability Services

Nancy CondonSuperintendentLSS State School

Richard B Roper IIIUnited States Attorney for theNorthern District of Texas

- 41 -

restrained limbs and is released fromrestraint as soon as he or she does not posean immediate risk of harm to any person

g Convene an interdisciplinary team to reviewand revise as appropriate the behaviorsupport plan of any individual placed inrestraints more than three times in any four-week period

h Provide ongoing competency-based training forall psychology supervisory and direct carestaff on treatment and behavioral interventions including the proper use ofrestraints and on data collection regardingrestraint use

i Ensure that only the least restrictiverestraint techniques necessary are utilizedand that restraints are never used as a substitute for adequate behavioralinterventions as punishment or for theconvenience of staff

j Maintain quality assurance oversight toensure that restraint use is proper andaccurately tracked

3 Habilitation

LSS should provide its residents with adequate habilitationincluding but not limited to individualized training educationand skill acquisition programs developed and implemented topromote the growth development and independence of eachresident to minimize regression and loss of skills and toensure reasonable safety security and freedom from undue use ofrestraint More specifically LSS should

a Formalize habilitation planning protocolspolicies and procedures consistent withgenerally accepted professional standards ofcare for use throughout LSS

b Provide staff competency-based training onthe development of individualizedhabilitation plans and their implementation

- 42 -

c Develop and implement individualizedhabilitation programming directly matched toeach residentrsquos goals interests needs andlifestyle preferences

d Monitor and analyze the efficacy of theindividualized planning and implementationprocess Each individualized plan shouldhave outcome measures that specify actionsteps and training strategies and relatedtarget dates and responsible staff Revise programming as appropriate based onoutcomes

D Serving Persons in the Most Integrated SettingAppropriate to Their Individualized Needs

1 Develop and implement comprehensive formalguidelines policies and procedures fortransition planning These should include at aminimum target dates measurable outcomestraining and transition strategies andresponsible staff

2 Assess the specific characteristics of the mostappropriate setting and support needs for eachresident of LSS Assessments (for new admissions)should be done at admission Periodically updatethe assessments for individuals who remain at the facility for extended periods of time

3 If it is determined that a more integrated settingwould appropriately meet the individuals needspromptly develop and implement with appropriateconsent a transition plan that specifies actionsnecessary to ensure a safe successful transitionfrom the facility to a more integrated settingthe names and positions of those responsible forthese actions and corresponding time frames

4 Provide adequate education about availablecommunity placements to residents and theirfamilies or guardians to enable them to makeinformed choices

5 Provide adequate staff training and resources toensure timely and adequate transition planning

- 43 -

The collaborative approach that the parties have taken thusfar has been productive We hope to continue working with theState in an amicable and cooperative fashion to resolve ouroutstanding concerns regarding LSS

Please note that this findings letter is a public documentand it will be posted on the Civil Rights Divisionrsquos websiteWhile we will provide a copy of this letter to any individual orentity upon request as a matter of courtesy we will not postthis letter on the Civil Rights Divisionrsquos website until 10calendar days from the date of this letter

Provided our cooperative relationship continues we alsowould be willing to send our expert consultantsrsquo evaluations ofthe facility under separate cover These reports are not publicdocuments Although the reports are our expert consultantsrsquo workand do not necessarily represent the official conclusions of theDepartment of Justice their observations analyses andrecommendations provide further elaboration of the issuesdiscussed in this letter and offer practical assistance inaddressing them

We are obligated by statute to advise you that in theunexpected event that we are unable to reach a resolutionregarding our concerns the Attorney General may institute alawsuit pursuant to CRIPA to correct deficiencies of the kindidentified in this letter forty-nine days after appropriateofficials have been notified of them 42 USC sect 1997b(a)(1)We would prefer however to resolve this matter by workingcooperatively with you and we are confident that we will be ableto do so in this case The lawyers assigned to this matter willbe contacting your attorneys to discuss this matter in furtherdetail If you have any questions regarding this letter pleasecall Shanetta Y Cutlar Chief of the Civil Rights DivisionrsquosSpecial Litigation Section at 202-514-0195

Sincerely

s Wan J KimWan J Kim Assistant Attorney General

- 44 -

cc The Honorable Greg AbbottAttorney GeneralState of Texas

Adelaide Horn Commissioner Texas Department of Aging and Disability Services

Nancy CondonSuperintendentLSS State School

Richard B Roper IIIUnited States Attorney for theNorthern District of Texas

- 42 -

c Develop and implement individualizedhabilitation programming directly matched toeach residentrsquos goals interests needs andlifestyle preferences

d Monitor and analyze the efficacy of theindividualized planning and implementationprocess Each individualized plan shouldhave outcome measures that specify actionsteps and training strategies and relatedtarget dates and responsible staff Revise programming as appropriate based onoutcomes

D Serving Persons in the Most Integrated SettingAppropriate to Their Individualized Needs

1 Develop and implement comprehensive formalguidelines policies and procedures fortransition planning These should include at aminimum target dates measurable outcomestraining and transition strategies andresponsible staff

2 Assess the specific characteristics of the mostappropriate setting and support needs for eachresident of LSS Assessments (for new admissions)should be done at admission Periodically updatethe assessments for individuals who remain at the facility for extended periods of time

3 If it is determined that a more integrated settingwould appropriately meet the individuals needspromptly develop and implement with appropriateconsent a transition plan that specifies actionsnecessary to ensure a safe successful transitionfrom the facility to a more integrated settingthe names and positions of those responsible forthese actions and corresponding time frames

4 Provide adequate education about availablecommunity placements to residents and theirfamilies or guardians to enable them to makeinformed choices

5 Provide adequate staff training and resources toensure timely and adequate transition planning

- 43 -

The collaborative approach that the parties have taken thusfar has been productive We hope to continue working with theState in an amicable and cooperative fashion to resolve ouroutstanding concerns regarding LSS

Please note that this findings letter is a public documentand it will be posted on the Civil Rights Divisionrsquos websiteWhile we will provide a copy of this letter to any individual orentity upon request as a matter of courtesy we will not postthis letter on the Civil Rights Divisionrsquos website until 10calendar days from the date of this letter

Provided our cooperative relationship continues we alsowould be willing to send our expert consultantsrsquo evaluations ofthe facility under separate cover These reports are not publicdocuments Although the reports are our expert consultantsrsquo workand do not necessarily represent the official conclusions of theDepartment of Justice their observations analyses andrecommendations provide further elaboration of the issuesdiscussed in this letter and offer practical assistance inaddressing them

We are obligated by statute to advise you that in theunexpected event that we are unable to reach a resolutionregarding our concerns the Attorney General may institute alawsuit pursuant to CRIPA to correct deficiencies of the kindidentified in this letter forty-nine days after appropriateofficials have been notified of them 42 USC sect 1997b(a)(1)We would prefer however to resolve this matter by workingcooperatively with you and we are confident that we will be ableto do so in this case The lawyers assigned to this matter willbe contacting your attorneys to discuss this matter in furtherdetail If you have any questions regarding this letter pleasecall Shanetta Y Cutlar Chief of the Civil Rights DivisionrsquosSpecial Litigation Section at 202-514-0195

Sincerely

s Wan J KimWan J Kim Assistant Attorney General

- 44 -

cc The Honorable Greg AbbottAttorney GeneralState of Texas

Adelaide Horn Commissioner Texas Department of Aging and Disability Services

Nancy CondonSuperintendentLSS State School

Richard B Roper IIIUnited States Attorney for theNorthern District of Texas

- 43 -

The collaborative approach that the parties have taken thusfar has been productive We hope to continue working with theState in an amicable and cooperative fashion to resolve ouroutstanding concerns regarding LSS

Please note that this findings letter is a public documentand it will be posted on the Civil Rights Divisionrsquos websiteWhile we will provide a copy of this letter to any individual orentity upon request as a matter of courtesy we will not postthis letter on the Civil Rights Divisionrsquos website until 10calendar days from the date of this letter

Provided our cooperative relationship continues we alsowould be willing to send our expert consultantsrsquo evaluations ofthe facility under separate cover These reports are not publicdocuments Although the reports are our expert consultantsrsquo workand do not necessarily represent the official conclusions of theDepartment of Justice their observations analyses andrecommendations provide further elaboration of the issuesdiscussed in this letter and offer practical assistance inaddressing them

We are obligated by statute to advise you that in theunexpected event that we are unable to reach a resolutionregarding our concerns the Attorney General may institute alawsuit pursuant to CRIPA to correct deficiencies of the kindidentified in this letter forty-nine days after appropriateofficials have been notified of them 42 USC sect 1997b(a)(1)We would prefer however to resolve this matter by workingcooperatively with you and we are confident that we will be ableto do so in this case The lawyers assigned to this matter willbe contacting your attorneys to discuss this matter in furtherdetail If you have any questions regarding this letter pleasecall Shanetta Y Cutlar Chief of the Civil Rights DivisionrsquosSpecial Litigation Section at 202-514-0195

Sincerely

s Wan J KimWan J Kim Assistant Attorney General

- 44 -

cc The Honorable Greg AbbottAttorney GeneralState of Texas

Adelaide Horn Commissioner Texas Department of Aging and Disability Services

Nancy CondonSuperintendentLSS State School

Richard B Roper IIIUnited States Attorney for theNorthern District of Texas

- 44 -

cc The Honorable Greg AbbottAttorney GeneralState of Texas

Adelaide Horn Commissioner Texas Department of Aging and Disability Services

Nancy CondonSuperintendentLSS State School

Richard B Roper IIIUnited States Attorney for theNorthern District of Texas