Validation Alone Does Not Bring Justice For People With Disabilities

                                                                                           Malfeasance:
                                                                                An act that is illegal and causes physical or monetary harm to someone else. Malfeasance is intentional conduct that is wrongful or unlawful, especially by officials or public employees.

                   Misfeasance:
             Misfeasance typically occurs when an individual or a public official undertakes a duty or responsibility but fails to carry it out with proper care, skill, or diligence.

                                                                 Nonfeasance:
                                                     The omission to perform a required duty or the failure to act when a duty to act existed. Nonfeasance can more loosely be defined as “not doing something which you ought to do.”

These are legal terms, which, for the overwhelming vast majority of American citizens is a foreign and obscure language because they are not words, moreover, definitions experienced. But for thousands of Missouri citizens with disabilities of all levels and types, these terms and their definitions are the daily reality of what they are forced to live.

In 2017, a case so heinous that it sent shock waves throughout disability community, occurred. It was thought to be so profound that surely sweeping, systemic, and profound changes would happen in the means and the manner the Missouri Department of Mental Health conducts itself and regulates others caring for people with disabilities.

Carl DeBrodie was a young 33-year old young man who was born in Columbia, Missouri. He lived in a troubled and dysfunctional home environment. His father passed away and his mother was diagnosed with being “severely, intellectually, psychologically, socially, and occupationally impaired” according to court records (Hoover, 2020).

Mr. DeBrodie was diagnosed with a severe form of autism and intellectual disabilities, leaving him unable to read, write, or talk. Suffice to say therefore, Mr. DeBrodie was extremely dependent on others to help and protect him – at the substantial mercy of those in positions of power over him.

Eventually, Mr. DeBrodie moved into a home, that was run by Second Chance Homes, which operated under contract with the Missouri Department of Mental Health.

At the time, Valery Huhn was Director of the Division of Developmental Disabilities, of the Department of Mental Health, which was responsible for providing oversight of Second Chance Homes. Valery Huhn was promoted to the Director of the Missouri Department of Mental Health, after Mr. DeBrodie died, and she continues working in this capacity at the Department.

Mr. DeBrodie received case management services from Callaway County Special Services, which was supposed to monitor Mr. DeBrodie on a monthly basis. Mr. DeBrodie also had a public administrator guardian appointed by the probate court. And Mr. DeBrodie was supposed to be evaluated by a county nurse each month, as well..

In 2017, law enforcement discovered that two employees of Second Chance Homes had murdered Mr. DeBrodie, then placed him in a trashcan, encased him in concrete and shoved him into a storage shed belonging to their employer, where he remained for six months.

As the story unfolded, law enforcement also discovered the employees took Mr. DeBrodie to their home, and had him engage in physical fights with other Second Chance Homes client's, similar to MMA fighting.

On one occasion, Mr. DeBrodie had a seizure and laid on the floor screaming. The employees put Mr. DeBrodie in the bathtub, turned the shower on, and left him there to die.

On the same day that a new owner was taking over Second Chance Homes, the employees reported him -- "missing".

In the wrongful death lawsuit filed, State Representative Rudy Veit, who represented the family, in the civil suit, said “[Carl DeBrodie] really was abused there in many ways . . . [T]here were multiple layers of people and bureaucracy responsible for DeBrodie's care . . . It's hard to believe there were so many safeguards that were just ignored.” (KSHB Channel 41 News, July 26, 2019).

Assistant Missouri Attorney General, Michael, for the Missouri Department of Mental Health, argued the Department is not liable "because Second Chance Homes of Fulton is a private Limited Liability Company, even though the Department was charged with the duty to regulate Second Chance Homes and protect clients from being abused, neglected and exploited."

But this is nothing new – the Department shrieking its duty of care to ensure the necessary and proper care and protections are in place and followed.

In 2005, former Missouri State Auditor, Clair McCaskill, published the first state audit (No. 2005-62) of its kind, titled 'State mental health clients not fully protected from abuse and neglect due to problems with incident investigations and abusive workers still employed'.

The Columbia Missourian article on Mr. DeBrodie is titled, 'Missouri fails to adequately protect those with developmental disabilities from abuse, neglect'.

The article points out that from January 1, 2019 to April 22, 2021, the Missouri Department of Mental Health asserted private service providers for people with disabilities reported 229 (69%) clients died of natural causes, 2 (1%) died of suicide, 24 (7%) from accidents, 3 (1%) from homicide, and 72 (22%) from unknown causes.

How pray-tell, can there be 72 people with severe disabilities dying from “unknown causes”, in an industry that is required to be heavily regulated, with multiple layers upon layers of bureaucratic oversight, people in positions of authority required to protect them, and in our modern day technological and medical advances?

The Columbia Missourian article also points out that for the same time period, 19% of cases reported were victims of misuse of funds or property, 10% were victims of verbal abuse, 18% of neglect, 36% physical abuse, 10% of verbal abuse, 10% of both physical and verbal abuse, and 7% of were victims of sexual abuse.

Do you see the pattern and practice here – a thirteen (13) year history of abuse and neglect of people who cannot protect themselves because of their disabilities and vulnerability, and the habitual failures or refusals of state officials to provide the oversight, intervention and protection that is required?

Fast forward to December 19, 2023, when the Missouri Supreme Court issued its ruling in State ex rel. Jayla Ruiz Morales, John Kimani, and Valarie Johnson v. The Honorable Deborah Alessi (Case No. SC100069).

Sally Leniger, as legal guardian of Ronald Scheer, filed a wrongful death suit against “the St. Louis Developmental Disabilities Treatment Center-St. Charles Habilitation Center (“the center”) and several of its staff members including Jayla Ruiz-Morales, John Kimani, and Valarie Johnson (“the employees”),” according to court records.

The Court notes that, "Mr. Scheer was a resident at the center, who died while in the care of the center and employees." Id.

The employees filed a Writ of Prohibition, arguing that their official immunity exempts them from being sued. The Court agreed. And with that, 'Validation Alone Does Not Bring Justice For People With Disabilities'.

According to the Court's ruling, “[Mr.] Scheer was a resident at the center from 1974 to the time of his death on June 29, 2020. Scheer died after he slid down in his wheelchair and the wheelchair’s belt constricted his breathing. Scheer was non-verbal, non-ambulatory, and completely dependent on others for basic needs and survival. To move from place to place, Scheer required a wheelchair and staff assistance.” Id.

The Court goes on to point out that, “Scheer’s ISP contained orders from doctors, physicians, and the occupational and physical therapy department. The ISP required staff to provide 24-hour supervision to Scheer, check on Scheer every 30 minutes, check on and replace Scheer’s incontinence pad every two hours, and reposition Scheer every two hours.” Id.

Staff were “required . . . to secure the seatbelt and pelvic harness, ensure the seatbelt and pelvic harness were properly fastened at all times, and notify the department if Scheer’s equipment was damaged.” Id.

However, as the Court points out, “On June 29, 2020, around 5 p.m., Ruiz-Morales removed Scheer from bed and placed him in his wheelchair. Ruiz-Morales secured Scheer’s seatbelt but did not secure his pelvic harness. Ruiz-Morales fed Scheer while he was seated in his wheelchair but still did not secure the pelvic harness. After feeding Scheer, Ruiz-Morales wheeled him into the living room. Kimani and Johnson saw Scheer in the living room but did make sure his pelvic harness was secured. Around 5:50 p.m., Ruiz-Morales moved Scheer to his bedroom and left him in his wheelchair without the pelvic harness secured.” Id.

And then it happens: “Around 8:05 p.m., staff found Scheer in his bedroom with his legs touching the floor, buttocks on the wheelchair footrests, and head on the seat of the wheelchair with the wheelchair seatbelt around his neck. Scheer was pronounced dead at 9:27 p.m. An autopsy listed the immediate cause of death as “hanging”. Id.

When examining the claim of “qualified immunity” (a type of legal immunity that protects a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.) the Court seemed to look for any reason at all to grant the Writ and make the preliminary injunction to bar the suit against the employees, permanent.

The Court argued that “the inquiry is not whether the law confers a duty to act but, instead, whether the public official retains any discretion in completing an act.” Id.

In other words, to put it in more simpler terms that exposes the absurdity here: The Court argues that if there is any discretion, then no duty exists, even when the duty to act arises because of and from explicit orders to take specific actions and thereby creating the duty to act.

The Court, however, argued that “[w]hen even slight discretion exists” Id., then no duty exists.

So, the Court began its campaign and decided that qualified immunity applied because:

          The employees had discretion in how to perform the tasks in the
          ISP. Scheer’s ISP required the employees to check on him periodically,
          check his incontinence pad, and use a seat belt and a pelvic harness.
          The employees had to use discretion to determine if Scheer needed
          additional care, and, if so, what care to be administered. Similarly, the
          requirement to reposition Scheer every two hours required discretion
          to determine the manner in which to reposition him. Reviewing an ISP
          would require the employees to use discretion to determine on which
          sections to focus and how to use the information. Finally, the
          requirement to secure the pelvic harness involved the use of discretion.
          The harness manufacturer’s instructions include variations for how to
          use the harness. Determining how tightly to fasten the straps and
          assessing the condition of the equipment all requires discretion. All of
          the tasks in the ISP required staff to use discretion.

So, putting it in more simpler terms: If person A is required to get person B a drink of water to take medications and person A has to decide whether to turn on the cold water or the hot water first, to make the water warm, and person B dies as a result of person A taking too much time, the Court asserts person A has official immunity from being sued because person A had to decide (thereby having discretion) whether to turn the hot or cold water on first. 

And this, my friends, is precisely why people with disabilities are being abused, neglected and murdered in Missouri - why validation alone does not bring justice for people with disabilities.

The MGA and all of us here, express our most deepest condolences to Carl DeBrodie, Ronald Scheer, Sally Leniger and every person with a disability for the pain suffered, lives lost, futures stolen and the asininely Neanderthal and evil ways that people in positions of power treat them. 

With great respect and profound admiration, 
Christopher Cross, President
Duly court appointed legal guardian