A Critical Examination of State Agency Investigations into ...

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BruisingAlthough the Careys noted that Jonathan had multiple bruises, which also weredocumented by the Anderson School, the surveyors did not note any violations related toJonathan’s bruising. The Inspector General did not find any evidence to contradict this.Jonathan frequently threw himself to the floor or ran away from caretakers, and he had tobe restrained at times. Anderson School cited these as possible reasons for his bruising,and investigators from the Taconic regional office concurred.The Anderson School had presented the Careys with a form to allow them to askto be notified of injuries to Jonathan, and Lisa Carey had requested to be notified within24 hours of minor injuries such as bruising. The Anderson School violated thisagreement, but did not violate any laws or OMRDD regulations in not making thenotifications to the parents. Institutions such as the Anderson School are required toreport certain types of injuries to OMRDD, but bruising that only requires first-aid is nota reportable injury.31In the absence of a regulatory violation related to Jonathan’s bruising, there wouldbe no reason to mention the bruising in the context of a Statement of Deficiencies.No law enforcement notificationThe Mental Hygiene Law requires providers of services in the abovementionedfacilities to notify the district attorney or other appropriate law enforcement officials andthe commissioner as soon as possible, but at least within three working days “if it appearsthat a crime may have been committed” against a person receiving services. 32Although31 14 NCYRR § 624.4(b)(1).32 Mental Hygiene Law § 16.13.132
OMRDD identified violations in relation to Jonathan Carey’s treatment, it is not clear thatJonathan’s treatment constituted a crime. Even a regulatory finding of abuse by OMRDDdoes not necessarily imply that a crime has been committed. A criminal statute, such asendangering the welfare of a child, requires a higher standard of proof and a differentlevel of risk to the child than the OMRDD regulations. The prosecutor at the DutchessCounty District Attorney’s Office, after weighing the evidence, declined to prosecute thecase. She stated, “My standard is beyond a reasonable doubt and I have an obligation tonot bring cases if I don’t think I can prove that standard beyond a reasonable doubt….Isee nothing here that would have constituted any abusive behavior that I would have beenable to do anything about.”Inadequate Findings or Omissions from the Statement of DeficienciesThen-OMRDD Regional Director Articola indicated in interviews with theInspector General that any violation of regulations should have been cited in theStatement of Deficiencies. Although several significant regulatory violations were citedby OMRDD in the November 2004 Statement of Deficiencies, there was evidence ofother violations, some of which were serious in nature, that were not specificallyaddressed. Many of the violations that were missing from the Statement of Deficiencieshad been identified by OMRDD survey team members identified during their November3, 2004 visit to the Anderson School. The section below notes regulatory violations bythe Anderson School that were not noted in the Statement of Deficiencies.133
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Pursuant to Executive Law § 53, th
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INVESTIGATION BY THE TACONIC REGION
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The alleged abuse began in Septembe
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Michael and Lisa Carey. Along with
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The Careys filed a complaint with t
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The Taconic Regional Office’s Inv
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egulatory violations identified in
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compared to consumers in state-oper
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determined that Jonathan’s treatm
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Statements from CQC executives and
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investigating agencies or the Gover
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7. There is no justification for a
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Legislative RecommendationThe Inspe
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and give positive reinforcement for
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separate reports. Taconic’s was i
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4. Did the investigating agencies e
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in the Department of Special Educat
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III. BackgroundNEW YORK STATE SERVI
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abuse or maltreatment within New Yo
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certain OMRDD-certified facilities,
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instances in which the Anderson Sch
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appropriateness of the Dutchess Cou
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Diagram of the Anderson School camp
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Additionally, the Mental Hygiene La
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Among the protections offered in th
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To ensure the safety of the residen
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The reports are shared with the fam
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esident’s physical condition, inc
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He could also become physically agg
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RESIDENCY AT THE ANDERSON SCHOOLIn
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Shortly after his admission, Jonath
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a snack such as cereal or verbal pr
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weekend, his behavior was so bad, s
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Experts retained by the Inspector G
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The October 9, 2004, Anderson Schoo
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eally losing it, going bananas basi
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document indicated that Jonathan at
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notified and she consented to the m
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The Anderson School Executive Direc
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naked to prevent him from leaving t
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Anderson School Weekly Body Check F
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continues. Does he take a multivita
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Page 90 and 91: CQC investigator’s notes reflecte
Page 92 and 93: the psychiatrist wrote (in part),
Page 94 and 95: V. State Agency Investigations of A
Page 96 and 97: On October 25, 2004, the Careys att
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Page 100 and 101: are responsible for conducting thei
Page 102 and 103: School policies and procedures. Inv
Page 104 and 105: Taconic Regional Office’s Finding
Page 106 and 107: an entry on an October 4, 2004, Beh
Page 108 and 109: When questioned about the Taconic r
Page 110 and 111: involved “fully in the program pl
Page 112 and 113: What were the employees doing that
Page 114 and 115: Central Office. Although the Anders
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Page 118 and 119: Taconic Regional Office’s Letter
Page 120 and 121: it is not his office’s policy to
Page 122 and 123: SURVEY BY THE OMRDD CENTRAL OFFICEA
Page 124 and 125: additional information was availabl
Page 126 and 127: his supervisor at the time, then-Ar
Page 128 and 129: that is absent from the Statement o
Page 130 and 131: clinical director role, psychiatris
Page 132 and 133: the table contingent on appropriate
Page 134 and 135: Former Regional Director Articola s
Page 138 and 139: Seclusion / unauthorized time-out /
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Page 142 and 143: Investigation of complaint by an in
Page 144 and 145: and included supporting documentati
Page 146 and 147: think they wanted him to have the r
Page 148 and 149: Inaccurate Information Provided to
Page 150 and 151: this allegation. The letter was tra
Page 152 and 153: While reports indicated that the An
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Page 156 and 157: egistry, and then it seems there wa
Page 158 and 159: INVESTIGATION BY THE NEW YORK STATE
Page 160 and 161: target(s) of the complaint engaged
Page 162 and 163: arely used by CQC to substantiate a
Page 164 and 165: The second paragraph of the case su
Page 166 and 167: CQC Director of Quality Assurance a
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Page 172 and 173: Jonathan’s “demeanor has change
Page 174 and 175: that the additional complaints of a
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Page 178 and 179: systemic significance.” In a hear
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Documentation of investigatory acti
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As noted above, Bowser also failed
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did not do a full care and treatmen
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CQC’s progress notes indicate tha
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epeatedly attempted to exaggerate t
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focuses. “We did it at the same t
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ead, “If he wets again - take she
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Although the statement provided to
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The oversight deficiencies were eve
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that OCFS’s rate of indication is
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In the following sections the Inspe
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On at least one previous occasion,
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emotional injury was impossible in
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facility employee and CQC recommend
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Restrictive Statutory LanguageAltho
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ecognizes that the determination of
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CQC policy does not require further
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CQC wrote in its unfounded notifica
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INVESTIGATION BY THE NEW YORK STATE
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develop sufficient evidence to supp
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There is not proper and safe oversi
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the meeting, “We left it with the
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this important matter. Your corresp
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VI. RECOMMENDATIONSThe Inspector Ge
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ehavior management (14 NYCRR § 633
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child in an institutional setting,
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(a) Records and documents pertainin
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(ii) violent behavior exhibited by
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8. Such commissioners shall provide
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plan of prevention and remediation
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the commission as to the implementa
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Agency Responses to the Inspector G
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incident is reported to have occurr
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Page 2Joseph FischJune 5, 2008conta
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Recommendations: The Inspector Gene
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A Critical Examination of State Agency Investigations into ...

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