Scandals at Texas agency facilities brought reforms, but state hospitals didn't follow lead

By Eric Dexheimer and Andrea Ball

In 2007, stunned by revelations of ongoing sexual abuse of young state wards by the adults charged with caring for them, legislators passed a series of laws that reformed how the Texas Youth Commission kept its teenage offenders safe. The changes included simple adjustments considered best practices in lockups for years: increased use of security cameras to capture and record incidents, independent monitors to field complaints and a separate investigative team to pursue allegations of abuse.

In 2009, images discovered on a lost cellphone revealed that staff members at a state-run school for people with disabilities had promoted a "fight club," instigating young residents to hit and push one another. The reports came on the heels of a federal lawsuit requiring reforms to the same system of schools. Another, but similar set of reforms added thousands of cameras and a standing order that investigators start looking for patterns in past claims of abuse to identify problem employees.

Now a third agency in less than five years finds itself in the spotlight because of claims a staffer abused children in state care. In late October, the Department of Family and Protective Services, which investigates claims of abuse in state facilities, found reason to believe psychiatrist Charles Fischer had sexually abused two patients, in 2003 and 2006, at the Austin State Hospital. Weeks later, the Texas Medical Board concluded that evidence supported nine claims of sexual abuse against Fischer dating back at least two decades.

Fischer has not been criminally charged. Through his lawyer he "vigorously" denied the allegations.

The news nevertheless has promoted self-examination among state officials.

"We want to know, how did we get to this place with a number of allegations (against Fischer), even if not confirmed?" said Stephanie Goodman, a spokeswoman for the state Health and Human Services Commission.

One likely reason, reporting by the American-Statesman shows, is that none of the basic reforms mandated by lawmakers only a few years earlier at the Youth Commission and state schools made their way to the state hospital system, despite the similarities in the three agencies' missions: caring for troubled, mentally fragile children in an institutional setting.

The 13 state supported living centers (formerly called state schools) and the state psychiatric hospital system are even overseen by the same agency: the Health and Human Services Commission, which shares office space with the Texas Youth Commission.

"There are a number of things we put into place at the state supported living centers that we are looking at to see if we could put them in place at the state hospitals," acknowledged Goodman.

"In hindsight, could we have done things differently?" added Carrie Williams of the Department of State Health Services, which oversees the state's 10 psychiatric hospitals. "Absolutely."

There is no allegation that confirmed abuse claims at the state hospital system extend past a single person — a contrast to the Youth Commission and the living centers, which were found to have deep and systemic deficiencies requiring immediate repair.

Legislators are vowing new investigations anyway.

"I am reviewing the measures taken by our state agencies in response to this tragedy to determine whether they need to be put into statute and possibly strengthened," said state Sen. Jane Nelson, R-Flower Mound , who chairs the Senate Health and Human Services Committee .

The allegation that one of the hospital system's doctors could have carried on a series of assaults over decades despite numerous reports, as reforms were occurring at similar agencies literally next door, suggests missed opportunities and raises questions about government's ability to anticipate and prevent serious problems, rather than to react and respond only to scandal.

The agencies treat different clients; however, not different enough to account for security variations, advocates say.

"Any additional precautions when you're working with such vulnerable population are important," said Beth Mitchell, supervising attorney for Disability Rights Texas, an Austin-based group that often litigates on behalf of mentally ill patients. "Hopefully, this will put the hospitals on notice, and they'll do the right thing."

News that officials at the Texas Youth Commission knew about but largely ignored confirmed reports that two administrators at a West Texas facility were sexually preying on teenagers in their custody hit just as the 2007 legislative session was getting under way. Forced by lawmakers to remake itself, the agency — last week renamed the Texas Juvenile Justice Department — undertook a series of reform measures.

A number of the changes were specifically designed to make Youth Commission facilities physically safer for offenders in its custody. Several were informed by the Prison Rape Elimination Act, a 2003 federal law that seeks to address the high incidence of sexual assault in lockups by targeting the culture and physical settings that allowed abuse.

Chief among them was the purchase, for $18 million, of 12,000 new high-definition cameras that peered into literally every corner of the Youth Commission's facilities. The images can be accessed at any time by the facility administrators, investigators and even agency executives in Austin.

The 10 state psychiatric hospitals, by comparison, have a total of 549 cameras, about a third from the 1980s. Three of the facilities have fewer than six cameras each.

Stored digital images not only protect youth, but also accused staff, said Cris Love, head of the Youth Commission's Office of Inspector General. "They're extremely important — a huge, huge asset to investigations," he said.

Though the agency doesn't keep numbers, Love said, images from the cameras have "absolutely" been used to both clear and convict staff of abuse allegations.

A November 2010 report by an outside consulting company hired to evaluate the reforms concluded, "Youth and staff commented at every TYC facility that cameras have increased safety, especially sexual safety."

The agency also made small but significant physical changes to its facilities. It took down walls that blocked sight lines, decreasing opportunities for hidden activity. It replaced solid wooden doors with doors that had windows and exchanged individual locks for a new keyless entry system that requires staff to have a control room operator open doors.

"This practice contributes to the sexual safety of youth by limiting the number of keys held by staff, thereby decreasing the number of areas they are able to access," the consultant wrote.

Criminal cases against the West Texas facility administrators had stalled when local prosecutors dragged their feet, so how the agency pursued claims of abuse was overhauled as well.

Senate Bill 103, which provided the blueprint for the Youth Commission's reform, created the independent inspector general, whose officers were granted police powers to investigate abuse claims and make arrests. New laws also allowed the Youth Commission to use the adult prison system's Special Prosecution Unit to take children's cases to court on its own.

"Looking at the fight club situation at the state school," Hurley said, "a lot of the things we now have in place would have prevented that."

Living centers react

In fact, recent reforms at the state living centers mirrored those implemented at the Youth Commission less than two years earlier.

The centers, residential facilities where people with intellectual and developmental disabilities receive a full range of psychiatric and medical care, came under scrutiny in 2006 after a federal civil rights investigation of the Lubbock center found "just deplorable conditions generally," recalled Disability Rights' Mitchell.

Follow-up investigations found problems in other centers, and the U.S. Department of Justice sued the state to force reforms. Among other claims, federal lawyers asserted that the Texas facilities did not provide "reasonably safe conditions, including protection from abuse, neglect, and other harm." In 2009, the Department of Aging and Disability Services signed a consent order, promising to improve how center residents were treated and cared for.

Reports in March 2009 that employees at the Corpus Christi living center had been arranging late-night fights among disabled residents came as legislators were beginning a new biennial session. Three months later, Gov. Rick Perry signed a bill mandating a sweeping set of reforms.

Within months, the state began laying 35 miles of fiber-optic cable and installing 3,200 new surveillance cameras at its centers.

Though the cameras were not as pervasively placed as those at the Youth Commission facilities — they cover mainly common areas, not treatment or residential rooms — they are monitored around the clock by center staff, spokeswoman Allison Lowery said.

State hospitals don't have employees designated to monitor cameras, health services department spokeswoman Williams said.

"They're a big component of our larger reforms," Lowery said, adding that the recorded images have been used to train staff, as well as to provide definitive evidence to confirm or dismiss complaints.

Department of Family and Protective Services data show the number of confirmed allegations at state supported living centers — reports that investigators determined were true based on a preponderance of evidence — grew from 8 percent in 2009, before the new cameras, to 9 percent in 2011, a difference of 90 cases. The case confirmation rate at state hospitals fell a percentage point over the same period.

Officials say the new cameras may not be entirely responsible for the difference. But "it has helped with the confirmation rate," said Wendy Ivy, a policy analyst with the protective service's facility investigation unit.

New inquiry policies

The 2009 living center reforms also required that investigations into allegations of abuse at the facilities be pursued differently than at other mental health agencies.

At state hospitals, Department of Family and Protective Services investigators looking into allegations of abuse are given 14 days to respond and finish their initial report. The new rules for the living centers require the reports be completed more expeditiously, in 10 days.

As with the Texas Youth Commission, the reforms also empowered the Health and Human Services Commission's Office of Inspector General to act as official law enforcement agents and assist with investigations — but only on those cases within the state supported living centers.

Perhaps the biggest difference in abuse inquiries between facilities, however, has been in how investigators can research and weigh an accused perpetrator's past record. At state hospitals, detectives generally do not take into account previous complaints and accusations against an individual.

Because of the 2009 federal reforms, however, the same investigators examining comparable allegations at the living centers must examine older cases to identify patterns. "Trends shall be tracked by the categories of: type of incident; staff alleged to have caused the incident; individuals directly involved; location of incident; date and time of incident; cause(s) of incident; and outcome of investigation," the new law stated.

Even if the new investigation is inconclusive, Ivy said, examiners can still document a noteworthy history of complaints on the "concerns and recommendations" portion of their reports, alerting future investigators to a suspect's troubled past.

Trending analysis "makes a big difference when you have a perpetrator who's constantly being reported, being called in for the same incidents time after time by different individuals," Mitchell added.

State records show that seven boys ages 13 to 17 who were patients at the Austin State Hospital accused Fischer of inappropriate sexual contact between 2001 and 2006 and that two others made complaints against him while he was working at other facilities.

Hospitals follow suit

State officials say they are already changing how they run the hospitals and investigate abuse incidents. Two weeks ago, executives announced a ban on after-hours therapy sessions unless two staff members are present and a requirement that individual treatment services occur only in rooms with windows or in locations that can be observed by other staff members — all rules adopted years earlier by the Texas Youth Commission following its 2007 scandal, Hurley said.

State Rep. Elliott Naishtat, D-Austin, said he plans to introduce a bill in 2013 that would require the Department of State Health Services to perform a more extensive FBI fingerprint background check on employees — a safeguard already required by the Department of Aging and Disability Services, which runs the state centers.

Hospital administrators also have ordered "a review of sexual abuse allegations, confirmations and actions taken \u2026 to identify any trends" in old state hospital cases. The Department of Family and Protective Services announced that it was undertaking a review of all sexual abuse complaints filed in the past five years at every state facility. "Trends or patterns may result in the reopening of old cases," agency spokesman Patrick Crimmins said. "We want to make sure we haven't missed anything."

Williams said officials also are discussing whether to add more cameras to state hospitals, although vulnerabilities of its patients could limit where and how many. "These are psychiatric patients who come to us for mental health treatment, and they have a right to privacy," she said

Still, she added, "there will be more changes. We're looking at what other agencies have done."

About this story

Last month, the American-Statesman broke the story that state investigators had found credible evidence that longtime staff psychiatrist Charles Fischer had sexually abused two of his patients at Austin State Hospital. Soon after the story, state health officials announced immediate reforms to protect patients, and the Texas Medical Board suspended Fischer's license based on its determination that he had abused nine children under his care dating back to the early 1990s.

Source http://www.statesman.com/news/statesman-investigates/scandals-at-texas-agency-facilities-brought-reforms-but-2010985.html