U.S. v. Mississippi
111 IIIlll111 Illl II

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• • • • • HH

• • • • • HI

MR-MS-002-003

__ ^
"SOUTHERN OSTSICT OF MISSSSIPPI
FIXED
WAR 091994 j
'. SCBUN CLERK

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

v.

)

)

STATE OF MISSISSIPPI; Kirk Fordice, )

Governor of the State of

)

Mississippi; Albert Randel Hendrix, )

Executive Director of Mental Health;)

Roger McMurtry, Chief, Bureau of )

Mental Retardation; Suzie Lassiter, )

Director, Boswell Regional Center, )

)

Defendants.

)

)

)

Civil Action No. 2,', Complaint
•

THE UNITED STATES OF AMERICA alleges:

1. This action is brought by the Attorney General, on

behalf of the United States, pursuant to the Civil Rights of

Institutionalized Persons Act of 1980, 42 U.S.C. §1997, to enjoin

the named defendants from depriving persons residing at the

Boswell Regional Center (Boswell), Sanitorium, Mississippi, of

rights, privileges or immunities secured or protected by the

United States Constitution.

2. This Court has jurisdiction over this action under 23

U.S.C. §13 45.

3. The United States has standing to initiate this action

pursuant to 42 U.S.C.'§1997a.

4. The Attorney General has certified that all the prefiling requirements specified in 42 U.S.C. §1997b have been met. The certificate of the Attorney General is appended to this Complaint and is incorporated herein.
5. Venue ir} the Southern District of Mississippi is proper pursuant to 28 U.S.C. §l391b. The claims herein arose in said District, and each of the named defendants resides in said District.
6. Defendant STATE OF MISSISSIPPI owns and operates Boswell, a state residential mental retardation facility. Persons residing at Boswell well include mentally retarded and developmentally disabled citizens.
7. Defendant Kirk Fordice is the Governor of Mississippi, and in this capacity, heads the executive branch of state government. He appoints the Mental Health Board of the State of Mississippi. As Governor and Chief Executive Officer of Mississippi, he is responsible in whole or in part for Eosvell.
8. Defendant MISSISSIPPI DEPARTMENT OF MENTAL HEALTH is responsible for the administration and operation of Boswell and for the conditions therein.
9. Defendant ALBERT RANDEL HENDRIX is the Executive Director of the Department of Mental Health, and in this capacity, has responsibility for the operation of Boswell. He appoints and supervises the Chief of the Bureau of Mental Retardation and the Superintendent of Boswell.
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in lieu of treatment or training, or for the convenience of staff.
18. Defendants have failed and are continuing to fail to ensure that bodily restraints are administered to persons confined to Boswell only pursuant to the exercise of professional judgment by appropriate qualified professionals and are not used as punishment, in lieu of treatment, or for the convenience of staff.
19. Defendants have failed and are continuing to fail to ensure that there is an adequate number of sufficiently trained staff to render professional judgments regarding necessary care, medical services, treatment and training to Boswell residents, and to implement such professional judgments.
20. The acts and omissions of Defendants alleged in paragraphs 16 through 19 constitute patterns or practices of resistance to the full enjoyment of rights, privileges, or immunities secured or protected by the Constitution of the United States and deprive persons confined at Boswell of such rights, privileges or immunities.
21. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth in paragraphs 16 through 19 above that deprive persons confined to Boswell of rights, privileges or immunities secured or protected by the Constitution of the United States, and cause irreparable harm to Boswell patients.
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WHEREFORE, the United States prays that this Court enter an order permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, omissions and practices at BRC set forth in paragraphs 16 through 19 above and to require.Defendants to take such actions as will provide constitutional conditions of confinement to Boswell residents. The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.
Resce^r€fullv

GEORGt PHILLIPS United States Attorney Southern District of
Mississippi

JANET/ RENO Attorney General
of the United States
'I
,7AMES P . TtTRiSfER Acting Assistant Attorney General Civil Rights Division

ARTHUR E. PEA30DY, Chief Special Litigation Section

s\

DAVID DEUTSCH

l

Senior Trial Attorney

Special Litigation Section

Civil Rights Division

U.S. Department of Justice

Washington, D.C. 20534

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nf tfie Attuning (general
Uastjtngtnn. S.CC. 20530
CERTIFICATE OF THE ATTORNEY GENERAL
I, Janet Reno, Attorney General of the United States, certify that with regard to the foregoing Complaint, I have complied vith all subsections of 42 U.S.C. Section 1997b(a)(l). I certify as well that I have complied with all subsections of 42 U.S.C. Section 1997b(a)(2). I further certify pursuan- to 42 U.S.C. Section 1997b(a)(3) my belief that this action by the United States is of general public importance and will materially further the vindication of rights, privileges, or immunities secured or protected by the Constitution of the United Scares.
I further certify that I have the "reasonable cause to believe" set forth in 42 U.S.C. Section 1997a(a) to initiate this action. I finally certify that all prerequisites to the initiation of suit under 42 U.S.C. Section 1997 have been met.
Pursuant to 42 U.S.C. Section I997a(c), I have personally signed the foregoing Complaint. Pursuant to 42 U.S.C. Section 1997b(b), I am personally signing this Certificate.
Signed this [^ —' day of. ij/l/f^iA . 1994, at Washington, D.C.
JANZT RENO Attorney General / of the United States

 
 U.S. v. Mississippi MR-MS-002-004

j

i SOUTHERN OiSTRlCT C?

IN THE UNITED STATES DISTRICT COURT FOR THE

F'1 C O

SOUTHERN DISTRICT OF MISSISSIPPI

;

M A R 1 0 1934

UNITED STATES OF AMERICA,

)

Plaintiff,

)

v.

)

)

STATE OF MISSISSIPPI; Kirk Fordice, )

Governor of the State of

)

Mississippi; Albert Randel Hendrix, )

Executive Director of Mental Health;)

Roger McMurtry, Chief, Bureau of )

Mental Retardation; Suzie Lassiter, )

Director, Boswell Regional Center, )

)

Defendants.

)

3v .
Civil Action 3 ; GM -c*>- I / S No.

AGREED ORDER Introduction
1. Thie case was instituted by the United States pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. Section 1997 et seg.
2. This Court has jurisdiction over this civil action pursuant to 28 U.S.C. Section 1345.
3. Venue is appropriate pursuant to 28 U.S.C. Section 1391(b). 4. The United States is authorized to institute this civil action by 42 U.S.C. Section 1997a and has met all prerequisites for the institution of this civil action prescribed by that statute.

5. The Defendants are the State of Mississippi; Kirk Fordice, Governor of the State of Mississippi; Albert Randel Hendrix, Executive Director, Mississippi Department of Mental Health; Roger McMurtry, Chief, Bureau of Mental Retardation; and Suzie Lassiter, Director, Boswell Regional Center (Boswell). All individual Defendants are sued in their respective official capacities.
6. The Defendants have authority and responsibility for the operation of Boswell and are officers of the Executive Branch of the State of Mississippi.
7. On July 23, 1990, the Attorney General of the United States, by and through the Assistant Attorney General, Civil Rights Division, notified the Governor of Mississippi, the Attorney General of Mississippi, and the Director of Boswell of his intention to commence an investigation of alleged unlawful conditions of confinement at Boswell Regional Center located in Sanatorium, Mississippi, pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. Section 1997.
8. On November 21, 1991, after a thorough investigation, the Attorney General, by and through the Assistant Attorney General, Civil Rights Division, informed the Governor of Mississippi, the Attorney General of Mississippi, and the Director of Boswell pursuar.1 to CRIPA, of the alleged unconstitutional conditions of confinement at Boswell, the supporting facts giving rise to the alleged conditions and the minimum measures necessary to remedy those conditions.
9. Upon notification of the needed remedial measures, Mississippi state officials initiated immediate steps to improve conditions at Boswell and have cooperatively worked with the

Department to resolve this matter amicably and in the best interests of the mentally retarded residents of the Center. State officials have cooperated in all respects with each aspect of the United States' investigation and have, from the onset, indicated a willingness to remedy deficiencies identified by the United States at Boswell.
10. The United States recognizes that the State of Mississippi and its officials and agencies are acting in good faith and have voluntarily undertaken this commitment to bring about improvements at Boswell and throughout Mississippi's mental health system.
11. The parties agree that the care, confinement, treatment, and training of residents at Boswell implicate rights that are secured and protected by the Constitution of the United States. The parties entering into this Agreed Order, recognize these constitutional interests, and for the purposes of avoiding protracted and adversarial litigation, and in the best interests of the mentally retarded citizens of Mississippi, agree to the provisions set forth herein. This Agreed Order provides for procedures that both the State of Mississippi and the United States deem constitutionally required and Mississippi has agreed to fully implement these procedures.
12. In entering into this Agreed Order, the Defendants do not admit any violation of law and this Agreed Order may not be used as evidence of liability in any other proceeding.
13. The provisions of this Agreed Order are a fair and appropriate resolution of this matter.
14. This Agreed Order, voluntarily entered into, shall be

signed and entered by the United States District Court for the Southern District of Mississippi and shall be enforceable as an order of the Court.
15. This Agreed Order shall be applicable to and binding upon all the parties, their officers, agents, employees, assigns, and
( successors. I. Purposes and Objectives
The State of Mississippi and the United States stipulate and agree that the purposes and objectives of this Agreed Order are to achieve and maintain the following conditions at Boswell in order that residents at the facility will be afforded rights, privileges or immunities secured and protected by the Constitution of the United States:
1. Training must be developed by qualified professionals that are designed to reduce or eliminate unreasonable risks to personal safety, to facilitate the resident's ability to function free from undue restraints, and to prevent the deterioration and regression of skills.
2: Adequate care must be provided to protect all residents from unreasonable risks to their personal safety both by the conduct of staff and by other residents.
3. Psychotropic and other medications must be prescribed and administered to residents when necessary, pursuant to the exercise of professional judgment by qualified professionals.
4. Bodily restraint and seclusion procedures, when appropriate, must be administered safely and pursuant to the exercise of professional judgment by qualified professionals.
These purposes and objectives shall be achieved at Boswell by

implementing the requirements set forth in Parts III, IV and V below. II. Definitions
As used in this Agreed Order, the following definitions shall apply:
1. "Psychiatrist": A physician who either is certified by, or is eligible for certification by, the American Board of Psychiatry and Neurology or who has successfully completed an approved residency program in psychiatry and upon completion of post-residency requirements will become eligible for examination for such certification.
2. "Psychologist": A person who has attained at least a masters' degree in the field of psychology.
3. "Direct Care Worker": Staff immediately responsible for implementing training programs and providing care to residents.
4. "Qualified Professional": A person competent, whether by education, training, or experience, to make the particular decision at issue.
5. "Bodily Restraints": (a) Any physical or mechanical device used to restrict the movement of a resident or the movement or normal function of any portion of the resident's body, excluding those devices used only to provide support for the achievement of functional body positions or balance and devices used for specific medical and surgical (as distinguished from behavioral) treatment; and (b) chemical substances used solely to restrict the movement of a resident, including behavior management drugs as defined herein.
6. "Seclusion": Placement of an individual alone in a locked room, or a room from which the resident is physically prevented from

egress. 7. "Time Out": A behavior management technique whereby a
resident is isolated from other residents. 8. "?RN": A treatment modality ordered on a pro re nata or
"as needed" basis. l
9. "Behavior Management Drugs": Drugs which are prescribed or administered for the purpose of modifying behavior. Included are the major and minor tranquilizers and anti-depressants. Excluded are drugs that may have behavior modifying effects but that are not prescribed or administered for that purpose, such as anticonvulsants.
10. "Training Program": A program of steps and activities, including behavior management and the teaching of basic self-care skills, determined by a qualified professional consistent with professional judgment to be necessary to protect a resident from unreasonable risks to personal safety, to facilitate his or her ability to function free from undue bodily restraint and from unreasonable use of behavior modifying drugs, and to prevent regression or deterioration of skills.
11. "The State": The Government of the State of Mississippi specifically including the Mississippi Department of Mental Health, the Bureau of Mental Retardation, the Administration of Boswell Regional Center, and any and all of their officials, agents, employees, or assigns, and the successors in office of such officials, agents, employees or assigns.
12. "Professional Judgment": A decision by a qualified professional that is not such a substantial departure from accepted professional opinion, practice, or standards as to demonstrate that

the person responsible did not base the decision on such professional opinion, practice, or standards. III. Corrective Measures
1. By no later than one (1) year from entry of this Agreed Order the State shall lensure that a sufficient number of psychologists are employed to assure attainment and consistent maintenance of at least the ratio of 1:25, psychologist-to-resident, at Boswell.
2. At the State's discretion, the ratios may be obtained by hiring additional needed staff or by reducing the resident population at Boswell by placing residents in appropriate community-based programs. The State agrees that, if the population of the facility is reduced through the transfer of residents to alternative programs, the determination as to which residents shall be discharged and the places to which they are transferred will be made by professional staff qualified to make such decisions. If such placements are to be made, the State shall file with the Court a plan for such transfers no later than ninety (90) days prior to implementing the transfers. The United States shall have thirty (30) days to comment on the plan. Any such plan shall become part of this Agreed Order and shall be fully enforceable.
3. Psychiatric consultation will be available at Boswell at the rate of one hour per week for every ten (10) residents on psychotropic drugs or those residents on behavior programs requiring psychiatric services. Such consultation shall include the systematic review of the use of behavior management drugs for individual residents and may be provided by employing full-time psychiatrist(s)

or engaging the services of psychiatrist(s) on a part-time basis. 4. The State will make reasonable best efforts to assure that
at least or.e-third of the psychologist positions at the Boswell Regional Center will be filled with individuals possessing a doctorate in psychology. When hiring psychologists for new or vacant positions, the State shall make reasonable best efforts to maintain the ratio of one (1) Ph.D. level psychologist for every three (3) psychologists. However, first priority for hiring will be given to those persons who have a background in applied behavioral analysis. The parties agree that, while a Ph.D. level applicant with a background in applied behavioral analysis will receive first priority in hiring, a Masters' level applicant with this background shall be hired before a Ph.D. level applicant without this background. Quarterly reports from Mississippi to the Department of Justice shall specify whether the State has maintained the ratio of one Ph.D. for every three psychologists. Where the State does not maintain this ratio, the State will describe with particularity, including supplying any supporting documentation, efforts it has made to hire a Ph.D. psychologist for the new or vacant positions. IV. Plan of Implementation
1. Submitted herewith, and incorporated herein by reference as a part of this Agreed Order, are the State's Plan of Implementation and the appendices thereto which serve to implement the terms of and fulfill the purposes and objectives of this Order. This plan and appendices set forth the following:
a. The steps that the State will take in order to meet the psychologist-to-resident ratio required under the terms of this Order. Appropriate steps may include the transfer of residents to
8

appropriate community-based programs, and the use of measures

calculated to attract and retain qualified staff.

b. The number and categories of staff that will be

utilized to implement plans required by Paragraphs l(c) to (j),

below.

.

c. The policies and procedures to be utilized (1) to provide regular, periodic professional evaluations of each resident in order to identify those in need of training programs; and (2) to provide a sufficient number of training program hours to each resident for whom such training program is necessary.
d. The policies and procedures to be utilized to provide for consultation and communication of relevant information between and among personnel regarding residents' care, medical treatment, and training needs.
e. Recordkeeping systems and administrative procedures to be utilized with respect to each resident's care, medical treatment, and training. Such records shall include current information with respect to each resident's care, medical treatment, and training, and shall be organized in a fashion that will enable those reviewing a resident's records to exercise professional judgment in providing care, medical treatment, and training to the individual. Further, the State shall require staff to utilize such records in making care, medical treatment and training decisions.

f. The policies and procedures that will govern the use of drugs, particularly behavior management drugs, including policies and procedures concerning the handling and storage of drugs, monitoring and review of whether the drugs prescribed for and

administered to each resident are appropriate for the needs of that resident, drug side effects, drug dosage levels, use of two or more behavior management drugs, telephone orders and PRN prescriptions, and utilization of drugs with a behavior modification program.
c. The policies and procedures that will be utilized to provide that bodily restraints, seclusion, and time out (1) are administered only pursuant to the judgment of a qualified professional; (2) are not to be used for the convenience of staff or in lieu of training programs prescribed by a qualified professional; but (3) may be used, when appropriate, to control residents when they engage in isolated incidents of violence and/or dangerous behavior. Said policies and procedures provide that the decision to place a resident in restraints, seclusion, or time-out shall be recorded promptly in the resident's records and shall be reviewed by a qualified professional at specified reasonable intervals to determine whether the continuation of such restraint, seclusion, or time-out is professionally justified.
h. The policies and procedures that will be utilized to provide""that residents shall be protected from unreasonable risks of bodily harm to their personal safety by the conduct of staff or other residents, including requirements to report alleged incidents of bodily harm or unreasonable risk of bodily harm. Said policies and procedures include requirement for investigating such allegations, disciplinary rules and procedures, and sanctions to be followed upon any findings of bodily harm or unreasonable risk of bodily harm. Procedures will be devised to ensure adequate staff supervision and to provide for sufficient grounds and other security personnel designed to protect residents.
10

i. The enforcement mechanisms that will be utilized, including disciplinary measures and sanctions where appropriate, to provide for staff compliance with all policies, rules, and standards of job performance and behavior.
j. The specific terms and reasonable detail of the actions to be taken by the Defendants, the dates of such actions, the text of the procedures, regulations, or protocols to be promulgated and issued by the Defendants, and the name and qualifications of the professional responsible for ensuring that the Plan as submitted is implemented.
2. The Plan of Implementation states the specific date(s) by which each requirement shall be completely implemented but in no event shall the final implementation date of the Plan or portion thereof be later than three years after entry of said Plan.
3. The State of Mississippi agrees that all remedial measures undertaken pursuant to the Plan shall be implemented in a fashion designed to achieve the purposes and objectives stated herein. Once those purposed and objectives have been obtained, the above referenced remedial measures shall be continued in place until such time as this Order is terminated.
4. The United States has reviewed and approved the Plan of Implementation filed with this Agreed Order. V. Construction and Implementation
In construing and implementing the terms of this Agreed Order, the following are agreed to by the parties:
1. The State of Mississippi agrees to implement all provisions of the Plan of Implementation and appendices thereto,
11

which is incorporated herein, and that said Plan of Implementation and appendices thereto shall be enforceable as a court order.
2. If state officials decide to modify the Plan or any portion thereof, state officials shall notify in writing the Court and the United States of the proposed modification. After notice of such a
l proposal by the State, if the United States objects to the modification sought, state and federal officials shall meet or otherwise confer, in a good faith effort to resolve their differences concerning the proposed modification. If state and federal officials are unable to resolve their differences through negotiation within thirty days of receipt of the notice, either party may submit the proposal to the Court, who shall determine whether such proposal is acceptable under the Agreed Order. The Court's determination shall be based upon the purposes and objectives set forth in Part I of this Agreed Order. The State shall have the burden to persuade the Court the modification sought is warranted.
3. The State shall submit periodic compliance reports to the United States and the Court. The reports shall be filed quarterly, fifteen'( 15) days after the end of each quarter, beginning 60 days after entry of this Agreed Order, and continue until such time as this Agreed Order is terminated.
4. The format of these compliance reports shall be within the discretion of the State. The content of the reports shall include specific information describing the State's progress towards implementation of and compliance with the provisions of this Agreed Order and the Plan submitted pursuant thereto. The United States may from time-to-time request that the State include additional information in the compliance reports.
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5. The United States and its attorneys, consultants, and agents shall have reasonable access to the facilities, records, residents, and employees of Boswell upon reasonable notice to the State for the purpose of ascertaining compliance with the Order. Such access shall continue until this Agreed Order is terminated.
6. The State shall provide to the United States, within twenty (20) days of receipt, specific written answers to specific written questions from the United States regarding the State's compliance reports on the status of implementation of its plans.
7. Ail parties shall bear their own costs, including attorney fees. VI. Termination of Decree
1. The parties contemplate that the Defendants shall have fully and faithfully implemented all provisions of this Agreed Order and the Plan of Implementation submitted herewith three (3) years from the date of entry of this Order by the Court.
2. The Court shall retain jurisdiction of this action for all purposes under this Agreed Order until the State shall have fully and faithfully implemented all provisions of the Agreed Order and Plan of Implementation submitted thereto and until this case is dismissed.
3. The State may move to dismiss this Agreed Order at such time as it has fully and faithfully implemented all provisions of this Agreed Order and the Plan of Implementation submitted pursuant thereto. The State shall serve any such motion upon the United States which shall have sixty (60) days to respond. If that State moves to dismiss the Agreed Order, it shall have the burden of persuading the Court that the requirements of this Agreed Order have
13

been fully ar.d faithfully implemented.

CONSENTED TO BY THE UNDERSIGNED: FOR THE STATE OF MISSISSIPPI

FOR THE UNITED STATES OF AMERICA

ttIKE MOORE Attorney General

^JAMES P. TURNER, Acting Assistant Attorney General Civil Rights Division

ALBERT RANDEL HENDRIX Executive Director Mississippi Department of Mental Health
\V
SUZIE Director, Boswell Regional Center

)••'
DAVID" DEUTSCH Attorney Civil Rights Division U. S. Department of Justice Washington, D.C.

WHEREFORE, the parties to this action having agreed to the

provisions in the Agreed Order set forth above, and the Court being

advised in the premises, this Agreed Order is hereby entered as the

ORDER and JUDGMENT of this Court.

J,

IT IS SO ORDERED, this the j day of

199!f, at Jackson, Mississippi.

s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

14

 
 U.S. Department of Justice

Civil Rights Division

r

Office of the Assistant Attorney General

Washington. D.C. 20530
JUL 2 3 1990

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REGISTERED MAIL
RETURN RECEIPT REQUESTED

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Hill III III II IIII II IIIIIfIfIIII III I III

Honorable Ray Mabus Governor of Mississippi State Capitol Building Jackson, Mississippi 39201

MR-MS-002-001

' '™

Re: Investigation of Boswell Retardation Center, Sanitorium, Mississippi

Dear Governor Mabus:

I am writing to inform you of our intention to investigate conditions at Boswell Retardation Center (BRC), Sanitorium, Mississippi. This investigation is authorized by, and will be conducted pursuant to, the Civil Rights of Institutionalized Persons Act, 42 U.S.C. Section 1997, et seq.

The purpose of the investigation will be to determine whether there exist any violations of the statutory and federal constitutional rights of BRC residents. The investigation will focus on, but not necessarily be limited to, allegations related to an inadequate number of professional and direct care staff, abuse and neglect of residents, misuse and overuse of restraints, inadequate recordkeeping practices, and the failure to provide treatment sufficient to avoid undue risks to personal safety and unreasonable bodily restraint. The initiation of this investigation in no way evidences any prejudgment on our part that patient federal rights have been violated. If any violations are found, we look forward to conferring with you and your staff concerning corrective actions that might be appropriate.

As a means of commencing this investigation, I wish to propose an initial meeting in the near future between our attorneys and representatives of your office. It has been our experience that such a preliminary conference can substantially expedite the process. We also wish to arrange for our attorneys,

consultants, and perhaps agents of the Federal Bureau of Investigation to visit the Boswell Retardation Center. We shall be in touch with your staff to work out the specifics of our meeting and later visits. The attorney assigned to this matter is David Deutsch, (202) 514-6270.
Your cooperation in this matter is greatly appreciated.
Sincerely,

cc: Honorable Mike Moore Attorney General State of Mississippi
Mr. Albert Randel Hendrix Executive Director Mississippi Department of
Mental Health
George Phillip, Esquire United States' Attorney
Dr. Paul Cotton Director Boswell Retardation Center

John R. Dunne rsistant Attorney General
Civil Rights Division

 
 Civil Rights Division

Office of the Anistant Attorney General

Washington. DC. 20530

REGISTERED MAIL

RETURN RECEIPT REQUESTED

.1

Honorable Ray Mabus
("nuornnr

rN0V II T997
.,o
U^"

Jackson, Mississippi 39201 Re: Boswell Retardation Center

MRJs-002 002

Dear Governor Mabus:
On July 23, 1990, we notified you of our intention to investigate conditions at the Boswell Retardation Center (Boswell) in Sanatorium, Mississippi pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997. As contemplated by the statute, we are now writing to inform you of the findings of our investigation and to outline the minimum measures necessary to remedy the unconstitutional conditions at Boswell.

As part of our investigation, attorneys from the Department of Justice toured Boswell for three days in November 1990 with two consultant psychologists. We observed residents, interviewed staff, and reviewed records and documentation. Throughout the investigation, representatives of both the Department of Mental Health and the facility were helpful and cooperative. We appreciate their efforts.

Our investigation reveals that conditions at Boswell exist which deprive residents of their constitutional rights. Institutionalized mentally retarded persons have constitutional rights to adequate medical care, reasonably safe conditions of confinement, and such training as would ensure that they are not exposed to unreasonable risks to their personal safety and are free from undue bodily restraint. Youngberg v. Romeo. 4 57 U.S. 307, 324 (1982). Conditions at Boswell contravene the residents' constitutional rights in a manner far more egregious than encountered in our investigation of the Ellisville State School.

)

Set out below are our findings and recommendations. The

) unconstitutional conditions revealed by our investigation include

Boswell's failure to provide minimally adequate training programs

sufficient to ensure that residents are free from undue

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restraint, insufficient numbers and training of staff, inadequate psychiatric care and recordkeeping, and a physical environment which threatens the health and safety of residents.
Notwithstanding these findings, we wish to acknowledge Boswell's vocational rehabilitation programs which were noteworthy for those residents served in terms of their structure, management and efficacy.
"I. Inadequate Training Programs
Our consultants considered Boswell's training programs to be totally inadequate and failing to meet acceptable professional standards. One consultant, Dr. Johnny Matson, rated the programs /'as among 5% of the poorest I have seen at facilities around the "country in the last 10 years."
Boswell fails to provide professionally designed and implemented individualized training programs that are sufficient to ensure that residents are not subjected to unreasonable restraints. Following a careful review, our consultant psychologists concluded that Boswell's staff are using restraints, isolation and punishment to control the behavior of residents in lieu of necessary training programs.
Boswell's staff fail to identify and eliminate circumstances which provoke problem behaviors in residents. After the onset of a maladaptive episode, staff intervention is focused solely on restraining the resident or using aversives without resorting to alternatives. Our consultants noted that these procedures are a substantial departure from accepted professional practice.
Current behavior programs are not data based and thereby do not meet professional standards. For example, Boswell has no adequate facility-wide behavioral observation system that is used consistently and reliably by all staff to collect behavioral data. In addition, because staff fail to provide behavioral data to the consultant psychiatrist for evaluation of the need for continued medication, he is accordingly limited in his ability to determine whether medication may be tapered or withdrawn which places residents at risk of undue chemical restraint.
There is also inadequate behavioral programming for residents taking psychotropic medication. What programming does exist, moreover, is not integrated with the use of psychotropic medication which places residents at risk of undue chemical restraint.
The psychology policy manual appears to have been adapted from several sources and is internally inconsistent. In 'addition, interviews with the psychology staff strongly suggested that they do not understand some of the basic concepts in the

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manual, such as reliability, and that they routinely fail to follow its guidelines.
II. Insufficient Numbers and Training of Staff
There is an insufficient number of qualified medical and psychology staff at Boswell to provide minimally adequate care and training for the resident population or to render professional judgments with respect to such care and training. Consequently, Boswell's residents are not receiving the care and training necessary to protect them from unreasonable risks to their personal safety and to ensure freedom from undue bodily restraint.
The most glaring staffing deficiency is in the area of •psychology. The psychology department's current 1:70 staff-toresident ratio is totally inadequate given the behavioral programming that is necessary with this resident population. The absence of a departmental supervisor responsible for all staff psychologists further contributes to programmatic incoherence and disjointedness.
Psychology staff suffer from lack of training in basic behavioral psychology. This educational deficit greatly undermines the quality of the behavior reduction programs currently in place at Boswell. Until training is provided to instruct psychologists how to gather and process data linking assessment to treatment, the facility's behavior programs will not meet professional standards.
In addition, the 3-hour orientation which direct care staff receive in behavior management is totallykinadequate. Not only is three hours insufficient to teach basic behavioral skills and theory, it sends the wrong signal to staff who receive a full ten hours of instruction in how to restrain clients. Inasmuch as this structure suggests to personnel that restraint is more important than active programming in the area of life skills, it jeopardizes the adequacy of resident care and poses an unreasonable risk to their freedom from bodily restraint.
III. Inadequate Psychiatric Care
The prescription and monitoring of psychotropic medications at Boswell represent significant departures from accepted medical practice and fail to protect residents from serious risks of harm.
Our consultants concluded that drugs were often randoir.ly given, with no rationale offered to justify their prescription. In several instances, individuals were taken off one psychotropic
•medication and placed on another without proper documentation to
justify the change in prescription.

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Once a resident is placed on psychotropics, there is no systematic monitoring of the side-effects of the medication by qualified staff- Moreover, the direct care staff, who spend the most time with residents and would therefore be the first to notice side effects, receive no training whatsoever in this area and do not take part in the monitoring process. There is, in addition, no systematic, facility-wide procedure to ensure that each resident's medication is evaluated on a timely basis.
While medication dosage levels do not appear to present a problem, our consultants found evidence of improper polypha-rmacological practices at Boswell. Of particular concern was the inattention paid-to the use of anticholinergics and the heavy use of inter-class polypharmacy.
Finally, while it appears that some effort is being made to reduce the medication of certain residents, there is no policy in place providing for regular trial withdrawals and drug holidays for all residents. This omission contravenes standards of professional clinical practice.
IV. Inadequate Recordkeeping
Boswell lacks a data gathering system sufficient to provide information upon which professional decisions may be based regarding all aspects of training programs for residents.
The ability of Boswell to deliver adequate care to its residents is hindered by the inadequate recordkeeping practices at the facility. A resident's diagnosis and the reasons for prescribing certain procedures and medications are seldom written into a resident's record. When changes a^e made, there is little indication in the record -as to the basis for such a change. Without this information, professional care and treatment decisions cannot be made.
Boswell's practice of keeping medical and training records separately poses a risk to resident safety. Keeping medical records in a central location where they are not readily accessible to direct care staff is potentially dangerous in that it renders staff unable to check drug data when necessary. In addition, without the benefit of a comprehensive record, it is difficult to assess the interaction of drugs and behavioral interventions which is necessary in evaluating treatment effects.
V. Inadequate Physical Environment
Boswell's physical environment is grossly out-of-date, having been originally designed to serve as a tuberculosis hospital, and contravenes health and safety standards.

Boswell's physical environment threatens the safety of residents. For example, sharp metal pieces were observed . protruding from the walls of many rooms. These fixtures, part of intercom and heating/air systems which are no longer functional, are dangerous to residents. Similarly, rubber gloves found lying on a bathroom floor and window ledge are cause for concern in light of the presence of patients with pica behavior, i.e., ingesting foreign objects. These same residents are also at risk of ingesting used paper towels, soda pop lids and metal coat hangers which were also discovered on the wards within their reach.
The facility also suffers from a general state of disrepair and lack of adequate sanitation. For example, curtains and curtain rods were observed to be missing in some of the 'residential living areas, and bathroom fixtures such as soap dispensers and faucets did not always function properly. Some of the floors and toilet areas were also in serious need of cleaning, as was illustrated by the foul odor emanating from certain bathrooms. These conditions present an unreasonable risk to the health and safety of residents.
VI. Minimal Remedial Measures
The aforementioned conditions result in the deprivation of Boswell residents' constitutional rights. To rectify the conditions at Boswell and to ensure that constitutionally adequate conditions are established there, we propose to enter into a legally binding and judicially enforceable agreement with the State of Mississippi providing, at a minimum, for the following remedies:
1. Boswell must provide conditions or confinement that protect residents from undue risks to personal safety;
2. Medication practices must be modified to ensure that they comport with accepted professional medical standards;
3. Training programs must be professionally designed for those residents for whom such training can reduce or eliminate unreasonable risks to their personal safety and/or the use of undue bodily restraint. Residents with self-injurious, physically abusive or other destructive behaviors must be identified immediately and provided training to reduce or eliminate such behaviors;
4. Boswell must hire and employ a sufficient number of qualified professional staff to provide residents with minimally adequate training, as described in paragraph 3 above;

- 6-
5- Staff must receive instruction in behavior therapy and methodology sufficient to provide Boswell's residents with minimally adequate training, as described in paragraph 3 above;
6. Recordkeeping and administrative practices must be implemented to ensure that residents' treatment and training are based on or consistent with judgments of qualified professionals.
Information about federal financial assistance which ray be available to assist with the remediation process can be obtained through the United States Department of Health and Human Services' Regional Office (Director, Intergovernmental and Congressional Affairs, 404-221-2227) and through the United States Department of Education.
Our attorneys will be contacting your Attorney General's Office shortly to arrange for a meeting to discuss this matter in greater detail. We seek to resolve these matters in a reasonable manner and in the spirit of cooperation most ably demonstrated in our recent negotiations with respect to Ellisville State School. We look forward to working with state officials toward a similarly satisfactory resolution of this matter.
Sincerely,
«-<*«" John R. Dunne .stant Attorney General "Civil Rights Division
cc: Honorable Mike Moore Attorney General State of Mississippi
Dr. Paul Cotton Director, Boswell Retardation Center
Dr. Albert Randel Hendrix Executive Officer Mississippi Department of
Mental Health
Mr. Roger McMurtrey Chief Bureau of Mental Retardation

- 7 -
Beverly Dennis III, Esq. Deputy General Counsel U.S. Department of Health
and Human Services
Gail R. Wilensky, Ph.D. Administrator Health Care Financing Administration
•Mr. Anthony Tirone Director Office of Survey and Certification Health Care Financing Administration

 
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AGN, CLOSED
U.S. District Court Southern District of Mississippi (Jackson) CIVIL DOCKET FOR CASE #: 3:94-cv-00115-TSL

United States v. State of Mississippi, et al Assigned to: District Judge Tom S. Lee Demand: $0 Cause: 28:1345 USA Plaintiff
Plaintiff
United States of America

Date Filed: 03/09/1994 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff
represented by Daniel E. Lynn U.S. ATTORNEY'S OFFICE One Jackson Place 188 E. Capitol, Suite 500 Jackson, MS 39201 (601) 965-4480 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Mississippi State Of
Defendant Kirk Fordice Governor of the State of Mississippi
Defendant Albert Randel Hendrix Executive Director of Mental Health
Defendant Roger McMurtry

represented by Carol F. Thweatt MISSISSIPPI DEPARTMENT OF MENTAL HEALTH 1101 Robert E. Lee Bldg. 239 N. Lamar St. Jackson, MS 39201 (601) 359-1288 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol F. Thweatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol F. Thweatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol F. Thweatt

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Chief, Bureau of Mental Retardation
Defendant Suzie Lassiter Director, Boswell Regional Center

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol F. Thweatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/09/1994 03/09/1994 03/10/1994
03/10/1994 03/10/1994 09/06/1994 09/16/1994 09/29/1994 09/29/1994
10/03/1994 10/03/1994

#

Docket Text

1 COMPLAINT Filing Fee waived ; (lwe) (Entered: 03/09/1994)

Magistrate Judge Assignment - Alfred G. Nicols, Jr. (lwe) (Entered: 03/09/1994)

2 AGREED ORDER: The parties to this action having agreed to the provisions in the Agreed Order set forth, and the Court being advised in the premises, this Agreed Order is hereby entered as the ORDER and JUDGMENT of this Court. ( signed by Judge Tom S. Lee ); copies mailed. (csf) Modified on 09/07/1994 (Entered: 03/14/1994)

Boswell Retardation Center Plan of Implementation - 1994 - One volume. (csf) (Entered: 03/14/1994)

Case closed. (csf) (Entered: 03/14/1994)

3 MOTION by movant MS Protection System, movant Glen Allen Porter, movant Thomas W. Talkington to Vacate [2-1] order (an) (Entered: 09/07/1994)

4 NOTICE of motion to vacate consent decree before Judge Tom S. Lee by movant MS Protection System, movant Glen Allen Porter, movant Thomas W. Talkington (spc) (Entered: 09/16/1994)

5 JOINT MOTION by plaintiff United States, defendant State of Mississippi to Extend Time to respond to Motion to Vacate Consent Decree (fe) (Entered: 09/30/1994)

6 ORDER granting [5-1] joint motion to Extend Time to respond to Motion to Vacate Consent Decree, Response to Motion reset to 10/15/94 for [31] motion to Vacate [2-1] order ( signed by Judge Tom S. Lee ); copies mailed. (fe) (Entered: 09/30/1994)

7 Notice of Service of First Set of Interrogatories by movant MS Protection System to all defendants. (sec) (Entered: 10/04/1994)

8 FIRST REQUEST for Admissions by movant MS Protection System to defendant State of Mississippi, defendant Kirk Fordice, defendant Albert Randel Hendrix, defendant Roger McMurtry, defendant Suzie Lassiter (sec) (Entered: 10/04/1994)

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10/11/1994 10/11/1994 10/17/1994
10/17/1994 10/25/1994 10/27/1994
11/07/1994 11/23/1994 01/09/1995 04/10/1995 05/03/1995 05/18/1995 06/05/1995 06/20/1995 07/27/1995 10/24/1995

9 First Quarter Report on the implementation of the Agreed Order between the U.S. Department of Justice and Boswell Regional Center by defendant Suzie Lassiter. (sec) (Entered: 10/12/1994)
10 Second Quarter Report on the Impllementation of the Agreed Order between the U. S. Department of Justice and Boswell Regional Center by defendant Suzie Lassiter. (sec) (Entered: 10/12/1994)
11 RESPONSE by defendant State of Mississippi, defendant Kirk Fordice, defendant Albert Randel Hendrix, defendant Roger McMurtry, defendant Suzie Lassiter to [3-1] motion to Vacate [2-1] order by movants (lwe) (Entered: 10/18/1994)
12 RESPONSE by plaintiff United States to [3-1] motion to Vacate [2-1] order by movants (lwe) (Entered: 10/19/1994)
13 MOTION by movant MS Protection System to Extend Time to Reply to Defendants' Response (fe) (Entered: 10/28/1994)
14 ORDER granting [13-1] motion to Extend Time to Reply to Defendants' Response, Reply to Response to Motion reset to 11/4/94 for [3-1] motion to Vacate [2-1] order ( signed by Judge Tom S. Lee ); copies mailed. (fe) (Entered: 10/28/1994)
15 RESPONSE by movant MS Protection System in support of [3-1] motion to Vacate [2-1] order by movants (cwl) (Entered: 11/08/1994)
16 Supplemental RESPONSE by plaintiff United States in opposition to [31] motion to Vacate [2-1] order by movants (cwl) (Entered: 11/23/1994)
17 Third Quarterly Report filed by Department of Mental Health. (spc) (Entered: 01/10/1995)
18 REPORT TO THE COURT by Boxwell Regional Center Mississippi Department of Mental Health (thr) (Entered: 04/10/1995)
19 MEMORANDUM OPINION and ORDER denying [3-1] motion to Vacate [2-1] order ( signed by Judge Tom S. Lee ) ;copies mailed. ob: 1995 page: 1115-1119 (thr) (Entered: 05/03/1995)
20 MOTION by movant MS Protection System to Amend [19-1] order (thr) (Entered: 05/18/1995)
21 RESPONSE by defendants State of Mississippi, Kirk Fordice, Albert Randel Hendrix, Roger McMurtry, Suzie Lassiter to [20-1] motion to Amend [19-1] order by movant (thr) (Entered: 06/05/1995)
22 ORDER denying [20-1] motion to Amend [19-1] order ( signed by Judge Tom S. Lee ); copies mailed. (thr) (Entered: 06/20/1995)
23 FIFTH QUARTER REPORT TO THE COURT by Boswell Regional Center Mississippi Department of Mental Health (thr) (Entered: 07/27/1995)
24 SIXTH QUARTER REPORT TO THE COURT by Boswell Regional

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01/19/1996 04/12/1996 07/15/1996 10/16/1996 01/14/1997 04/21/1997 07/14/1997 10/23/1997 01/27/1998
01/29/1998 04/21/1998 07/17/1998 10/14/1998 01/20/1999 03/29/1999
03/31/1999

Center Mississippi Department of Mental Health (thr) (Entered: 10/24/1995)
25 SEVENTH REPORT TO THE COURT by Boswell Regional Center Mississippi Department of Mental Health (thr) (Entered: 01/19/1996)
26 EIGHTH REPORT TO THE COURT by Boswell Regional Center Mississippi Department of Mental Health (thr) (Entered: 04/15/1996)
27 Ninth Quarter REPORT TO THE COURT from Boswell Regional Center. (spc) (Entered: 07/16/1996)
28 Tenth Quarter REPORT TO THE COURT from Boswell Regional Center (thr) (Entered: 10/16/1996)
29 Eleventh Quarter REPORT TO THE COURT by Boswell Regional Center (fe) (Entered: 01/14/1997)
30 Twelfth Quarter REPORT TO THE COURT by Boswell Regional Center (thr) (Entered: 04/21/1997)
31 Thirteenth Quarter REPORT TO THE COURT by Boswell Regional Center (thr) (Entered: 07/15/1997)
32 Thirteenth Ouarter REPORT TO THE COURT by Boswell Regional Center (thr) (Entered: 10/24/1997)
33 STIPULATION as to plaintiff United States, defendant Kirk Fordice, et al, by Judge Tom S. Lee, copies mailed. (thr) Modified on 01/27/1998 (Entered: 01/27/1998)
34 Fifteenth Quarter REPORT TO THE COURT by Boswell Regional Center (thr) (Entered: 01/29/1998)
35 Sixteenth Quarter REPORT TO THE COURT by Boswell Regional Center (thr) (Entered: 04/21/1998)
36 Seventeenth Quarterly REPORT TO THE COURT by Boswell Regional Center (thr) (Entered: 07/20/1998)
37 Eighteenth Quarterly REPORT TO THE COURT by Boswell Retional Center (thr) (Entered: 10/14/1998)
38 Nineteenth Quarterly REPORT TO THE COURT by Boswell Regional Center (thr) (Entered: 01/22/1999)
39 JOINT MOTION by plaintiff United States, defendant Kirk Fordice, et al to Dismiss Order vacating the 3/10/94 Agreed Order (thr) Modified on 03/31/1999 (Entered: 03/30/1999)
40 ORDER granting [39-1] joint motion to Dismiss Order vacating the 3/10/94 Agreed Order. This case is dismissed, the injunction dissolved and jurisdiction of this court is terminated. ( signed by Judge Tom S. Lee ); copies mailed. (thr) (Entered: 03/31/1999)

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