Editor's note: Newspaper Tree invited Stephanie Townsend Allala to write about the issue on which her husband and legal partner Terry Hammond was working last week -- addressing living conditions for mentally and physically challenged people in El Paso. Those hearings were shut down by the state, which argued that the venue in which the hearings were being held was inappropriate. The hearings were in Judge Max Higgs' probate court, and the state argued, in part, that only a district court could call such a hearing. Hammond is Executive Director of the National Guardianship Association, and Chair of the Texas Guardianship Advisory Board.
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Why would the state go to extraordinary lengths to stop an El Paso judge and lawyer from uncovering abuse of the elderly and incapacitated? Perhaps a history lesson is in order.
Two years ago, El Paso County Probate Judge Max Higgs and lawyer Terry Hammond made national news after uncovering a system in which frail and elderly El Pasoans suffered abuse, neglect, and exploitation even after investigations by Texas Adult Protective Services, a division of the Texas Department of Health and Human Services (HHSC). The cases garnered headlines for months, and Gov. Rick Perry issued an executive order calling for the Office of Inspector General, also a division of HHSC, to investigate the agency. As a result, the Legislature began an effort to reform the Adult Protective and Children's Protective Services System in Texas. Notably, El Paso was nowhere near the top of the HHSC regions in the level of harm occurring to elderly and disabled Texans; in fact, there were six regions worse than ours, and only four that were better. Clearly, this was a statewide problem, and Higgs and Hammond were the ones who exposed it.
One of Governor Perry's key aides told a reporter that he wished his office had known about the problem before it hit the national news. The reason why is beginning to become clear.
In January of 2006, Judge Higgs heard a commitment proceeding on a schizophrenic woman who nearly died at a local motel where the owner and a “liaison” who brought clients to the motel, had gained control of her money, and allegedly failed to properly feed, clothe, and shelter her. The woman, who had been traveling from Alabama to California by bus, ran out of money and ended up at the Opportunity Center. A caseworker at the Opportunity Center referred her to the “liaison.” The liaison took her to the motel. The motel owner essentially became payee for her money, and paid himself and his partner $420 of her $603 social security check. The woman lost 60 pounds in six months, was digging in dumpsters for food, and had not changed clothes in nearly two months. She was hanging out of a balcony window when the police were called to take her to the psychiatric hospital.
At that hearing, Higgs appointed Hammond to be a guardian ad litem to represent the best interests of all mentally ill residents of that motel. Judge Higgs also appointed Hammond as a master in chancery to gather evidence about conditions of his clients in these locations and present it to the Court. A few weeks later, he expanded Hammond's appointment to include all residents of a local “boarding home” which was entirely populated with persons with mental illness, primarily schizophrenia, most of whom had been placed there by MHMR or at the recommendation of MHMR. In all, the appointments totaled 27. He agreed to compensation of less than $400 per case to take the cases to hearing, and engaged in a six-month investigation to determine whether his clients were at risk of harm and to hold three days of hearings before the Court.
After six months of investigation, he had lined up about 30 witnesses (to include clients, family members, owners of facilities, and professionals in the community). He began presenting evidence on Tuesday, June 22, and continued until about 10 a.m. on Wednesday, June 21. On Tuesday morning, he was met by a host of opposing counsel who wanted some modification to subpoenas that he had issued. He resolved these issues with everyone except an Assistant Attorney General, who insisted that Zulema Carrillo, the director of the El Paso Psychiatric Center, and Adan Dominguez and Davie Johnson, who work at the Area Agency on Aging, should not have to testify. He had previously requested by letter that they agree to testify voluntarily, but they had told him that their attorney would not allow them to do so. The subpoenas were not issued until late in last week after the Assistant Attorney General advised him they would not appear voluntarily.
Apparently, during the hearings last Wednesday, the Attorney General's Office filed a brief, took it to the Court of Appeals, and secured an ex parte order halting the proceedings. At 10 a.m. last Wednesday, an Assistant County Attorney brought the order from the Court of Appeals and handed it to Judge Higgs, who stopped the hearings.
Before the state stifled the testimony, the primary caretaker at one boarding home testified that 16 people with schizophrenia, mental retardation, major depression, bipolar disorder, and/or dementia had been living in a space of 520 square feet. The evidence revealed the men were sleeping with up to five or six people per 80 square foot room. The walls and locked gates were nine to 10 feet tall. The residents, many of whom had been put there by MHMR, ranged from 21 to 80 years of age. Hammond's investigation revealed that numerous residents had complained to public officials about the poor care the residents were receiving, including reports of naked residents urinating and defecating in the yard. The 16-plus residents were often left in the care of minor children. The owner of the boarding home had previously referred to his clients as “rejects,” according to testimony.
The evidence also showed that the motel in question was primarily populated with mentally ill residents as well. Most of these residents were referred to the owner by a local homeless shelter. A non-profit company had gained control of the social security checks, which normally amounted to no more than $603 per month, thereby controlling every aspect of their lives. Three residents testified that the residents were served rotted food from convenience stores, while the motel owner and his liaison, who was responsible for tending to the residents' personal needs, pocketed almost all of the money. The residents, who again had diagnoses of schizophrenia, depression, and mental retardation, were left to live on $5 to $6 a day. One client said she dug in dumpsters for food because she knew the dumpsters were dumped daily so the food in them could only be one day old.
Police records revealed more than 100 emergency visits at each of these places each year, at a cost to local taxpayers of tens of thousands of dollars. EMS and the fire department were going to each place 20 to 30 times a year, again costing taxpayers. Many required repeated hospitalizations at Thomason Hospital and the Psychiatric Center. Hammond tried to get complete records on his clients from the Psych Center, but was told it was so voluminous it would take over a month to assemble them.
The 10 hours of testimony revealed that there was a total failure of any and all governmental entities to properly intervene to prevent suffering of the mentally ill in El Paso. Hammond determined that, under Chapter 247 of the Health and Human Services Code, the State is responsible for regulating “personal care homes” as assisted living facilities. However, the State has defined “personal care home” so narrowly that motels, boarding homes, and foster homes dispensing medication, providing transportation, and feeding mentally ill residents is not considered “personal care.” Hammond and Higgs both queried witnesses about the $6,000 to $7,000 per month the operators of these facilities appear to be making, based on the testimony regarding how much they received and how much they spent, and whether the money could better fund a proper residence, nutrition, and medication for the mentally ill.
This is the story that might have been, had the hearings continued.
Although we work together in private practice, Hammond has a history of working on public interest cases that often involve systemic failures in governmental entities. He is a former teacher and historian, and he approaches these cases with passion. His grandfather died in a nursing home, after the facility lost his false teeth, and he choked to death on food. No lawyer would take the case, as little value is placed on the lives of the elderly and incapacitated in our legal system. He was repeatedly asked, “What is the value of the life of an 83-year-old man with dementia?”
“With every client, I see the face of Thomas Clifford Hammond and do my best to do for my client what I could not do for my grandfather,” he said.
Just as the hearings were terminated, he learned from a top MHMR official that there are around 4,000 unlicensed “personal care” homes tending to over 60,000 mentally challenged adults in this State. These numbers are up from about 1,200 homes seven years ago. The evidence adduced to date suggests that the State is relying on such facilities as the boarding house and motel in question for placement of the mentally challenged instead of funding and monitoring proper residential facilities with qualified staff, appropriate nutrition, monitored medication administration, and curricula designed to help make the mentally challenged more productive, rather than less productive to society. The cost of taking a more comprehensive, holistic approach to caring for the mentally ill must be a factor here.
There are lives at stake. Our state governmental policy appears to regard the mentally challenged as just beggars, robbers and thieves. But Hammond's clients include a Katrina evacuee, a Boston University graduate, and other very bright, talented, but mentally ill people. Isn't it true that the most basic function of government is to care for those who cannot care for themselves? If it is, Texas has failed miserably. The human suffering that is going on in El Paso and around the State of Texas, right here and right now, is incomprehensible. Every day, someone is sick or dying at the hands of this dysfunctional system.
So why would the attorney for the people of Texas, responsible for suing and shutting down unlicensed facilities in this State -- and, I suspect, Gov. Perry and Health and Human Services Commissioner Albert Hawkins — be so fearful of what a county probate court and a local attorney are going to find by way of these hearings? Your guess is as good as mine.
This next week, Hammond meets with City and County officials to determine what effort, if any, our local public officials are willing to make to ensure the well-being of the indigent mentally challenged in our community. As for the hearings, two of the best appellate attorneys around, Cori Harbour and John Mobbs, represent him in the effort to lift the stay and to inform the Eighth Court of Appeals of numerous misrepresentations made to the Court by the Attorney General.
In the meantime, he and I are left wondering whether our firm can continue to stand alone in advocating for the disabled in this community.
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Stephanie Townsend Allala is an attorney and partner with the Hammond Townsend Allala Law Firm, which specializes in elder and disability law.
