Friday, January 14, 2011

Death of Pennsylvania man with Down syndrome ruled homicide

From Public Opinion in Pa.:

GUILFORD TOWNSHIP, Pa. - Officials have ruled that a Guilford Township man with Down syndrome died in September after his 260-pound caretaker sat on him until he could no longer breathe.

Since the death of Timothy Bradford Smith (pictured) on Sept. 9, the Pennsylvania Department of Public Welfare has investigated and determined "gross incompetence, negligence and misconduct" on the part of the agency responsible for his care, Person Directed Supports, Inc.

As a result of the findings, PDS has been ordered to vacate three other care homes, located in York and Lancaster.

Smith, 37, died at his residence at 31 Field Circle. According to the autopsy report, completed by a forensic pathologist in Allentown, he died of "traumatic asphyxia" while being subdued face-down with a man on his back.

Smith weighed 186 pounds at the time of his death. The caretaker's weight was listed as 260 pounds.

"Basically, he sat on my brother until he stopped breathing," said Becki Boor, one of Smith's three older sisters.

Now she and her family just hope that their brother's death was not totally in vain.

"There are many others with loved ones who are being taken care of by someone who may not know how to restrain should the need arise. Everyone who loved and cared about Timmy is left with many questions concerning what is or should have been the protocol for caregivers of people with special needs," Boor wrote in an e-mail.

According to a report compiled by the DPW, "staff in the home were not trained to utilize any type of floor restraint."

Smith was the youngest of four siblings, Boor said. Until he was about 21, he lived with their parents, who cared for him until they died in the early 1990s.

The house where Smith lived is owned by an agency called Person Directed Supports Inc. He lived there alone, with the assistance of a rotating staff of caretakers. Boor said the caretaker who sat on her brother has been identified as Joe Easton.

A person answering the phone at the PDS office in Chambersburg referred questions to the agency's CEO, Ken Gibat. Gibat did not return several phone messages, but Public Opinion was contacted by Bill Lenahan, an attorney representing the agency.

Asked about Easton's employment status with PDS, Lenahan said the matter is pending several ongoing investigations. "To my knowledge, he is not working in any PDS home until these investigations are concluded," he said.

Boor said she spoke with Franklin County Coroner Jeffrey Conner, who told her that he determined the manner of her brother's death to be homicide, meaning death at the hands of another person.

A coroner's ruling of homicide does not in itself imply criminality. When asked for comment, Conner declined, citing the ongoing nature of the police investigation.

As of Thursday evening, no criminal charges had apparently been filed in Smith's death.

"We know it's a homicide, we know that he suffocated. So why aren't there charges being brought?" Boor asked.

Franklin County District Attorney Matthew Fogal said Pennsylvania State Police has forwarded the investigation to his office, and the matter is "currently under review."

He said he expects to issue a statement "within a week" about the decision whether to file criminal charges. "It's a tragic situation, and the concerns of surviving family members are certainly in my thoughts," Fogal said.

After Smith's death, the state Department of Public Welfare launched an investigation that included inspections at the Field Circle home, as well other PDS facilities.

According to the order, the department determined that conditions in at least three other PDS homes "constitute gross incompetence, negligence and misconduct in operating a facility and mistreatment or abuse of individuals cared for in the facility."

The order also states that the conditions observed in the inspections, "pose an immediate and serious danger to the life or health of the individuals in care."

As a result, PDS was ordered in November to remove all the residents from two facilities in Lancaster and one in York. Those people are to be relocated to licensed facilities that are equipped and capable of handling their individual needs, said Michael Race, spokesperson for the DPW.

According to the DPW's inspection report completed Sept. 17, it was determined that the staff member placed Smith in a "face down floor restraint."

Angie Logan, the DPW's policy director, said methods of "prone restraint" like the one allegedly used on Smith "are extremely dangerous," and are largely banned as a result.

Two people in the past five years, including Smith, have died in Pennsylvania while a prone restraint was being used on them, she said. The other person to die was a child.

Prone restraint accounted for the deaths of 73 children nationally between 1988 and 1998, she said.

Because of the danger, the method is banned in all state-run care facilities and in all Pennsylvania facilities dealing with children, Logan said. However, the method remains legal in private facilities that house adults.

"When you go to a prone restraint, that is the last restraint you ever want to use. You're using the worst possible technique," Logan said.

The DPW report also indicates that Smith's caretakers did not have a "restrictive procedure plan" in place prior to his death.

Such a plan should be developed for individuals with a history of "behavioral health issues or crises," Logan said. The plan would include details like the person's "trigger points," and how to de-escalate a situation before a restraint becomes necessary.

"Any kind of restraint should always be the last option in terms of dealing with individuals, especially with folks who have communication disabilities," Logan said.

The report also states that "there was no record of content, dates, or length of training" for Smith's caretakers.

After examining daily logs kept by the caretakers, it was found that Smith had been restrained on the floor in the past, but those incidents were not reported as required by law, according to the report.

Another daily log item revealed that caretakers had taken Smith's toy cars away from him for a 24-hour period after a behavior episode. "There was no restrictive procedure plan addressing removal of personal property," the report states.

Alleged violations at three other PDS locations include:

n Staff at the York facility were reportedly instructed to place a mattress on top on an individual if he "could not calm down." This dangerous practice is in violation of the abuse and neglect policy.

n A broken window, a broken dresser and a hole in the wall were found at the York home.

n A resident at a home in Lancaster was allegedly told that "she would have to live elsewhere if she did not clean her room."

n Meal records at the same Lancaster home indicated that one resident was not being fed the minimum required amount of food. One day's log listed "cookies" for breakfast and "Doritos" for lunch as the only foods provided.

"Their violations go beyond restraints. They had numerous problems that came to light," Race said.

Since the department's investigation was completed and the order was issued, PDS has appealed the decision. In the meantime, the three homes ordered to be closed remain fully operational, Race said.

Lenahan confirmed that his client has appealed the order, and said an appeal hearing has not yet been scheduled by the department's Bureau of Hearings and Appeals. Asked for comment on the alleged circumstances surrounding Smith's death, he said PDS is challenging those findings.

"It didn't happen the way it's been laid out there," he said.

Asked which of the department's other findings are being challenged, Lenahan said he wasn't entirely sure, because the appeal was filed several months ago.

"I believe we have challenged all of them," he said.