A Critical Examination of State Agency Investigations into ...

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facilities like the Anderson School, OMRDD must promulgate regulations. Under theState Administrative Procedure Act, the promulgation of regulations requires thesatisfaction of several procedural steps which include the publication of the proposedregulation, the opportunity for public comment, and a potential public hearing. The rulemaking process is facilitated by the Governor’s Office of Regulatory Reform (GORR),which provides oversight of the regulatory process, including conducting cost-benefit andimpact analyses of proposed rules and analyzing with agencies whether certain rulesshould be eliminated.The Inspector General’s investigation revealed that since at least 1994, OMRDDhas had draft regulations on behavior management for modifying or controllingmaladaptive or inappropriate behaviors. Relevant to this investigation, the draftregulations provide additional clarification and guidance on the practice of behaviormodification, including the issues of restraint, seclusion, restrictive behavior modificationtechniques, and time-out. Additionally, the proposed section requires that allinterventions “shall emphasize positive approaches in modifying behavior, focus onteaching new behaviors, and provide persons with the skills needed to enhance theireveryday functions and quality of life.” Also, the draft regulations go beyond existingregulations in clearly prohibiting the use of food as a behavior management tool. Thedraft regulations specify that: (1) “No behavior management plan may deprive a personof a balanced and nutritious diet, served in appropriate times throughout the day;” and (2)“No behavior management plan may incorporate the use of food in which the form of thefood served is different to that served other people in the facility (e.g., pureed whenothers get sliced meat/vegetables).”150
These draft regulations are policy in OMRDD state-operated facilities, but sincethey have not been promulgated as regulations, they are not binding on voluntaryprograms such as the Anderson School. As OMRDD General Counsel Martinelliexplained, “They are not obligated to comply with it because it is not a reg[ulation], andit is viewed more a[s] guidance from the state.”This results in consumers receiving different protections solely due to whetherthey are placed in state-operated or voluntary programs. Because OMRDD’s ability tosupervise voluntary programs is limited to enacted regulations, voluntary programs,generally, have less direction and guidance on implementing behavior management plans,when compared to state-operated programs. This discrepancy has substantial effects asthere are approximately 140,000 individuals receiving services through state-operated orvoluntary programs in New York State. Approximately 112,000 (80%) of theseindividuals receive services from voluntary agencies. The vast majority of individualsreceiving services from voluntary providers in certain settings are not protected by thesame standards and guidance as those in state-operated facilities.Notably, some of the restrictive techniques employed by the Anderson School tomodify Jonathan Carey’s maladaptive behaviors, such as his mealtime protocol andsubstitute food items, may have been prohibited under the draft regulations which applyin state facilities. Other practices, those that infringed on the rights of a consumer, wouldhave been subject to additional scrutiny and review prior to implementation and wouldrequire continual oversight and careful vigilance when in use.In 2001, a draft of this regulation was filed with the GORR. Martinelli reportedto the Inspector General’s Office that the “1994 regs were formally proposed in the State151
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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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Executive Director stated that arou
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OMRDD regulations, OMRDD called the
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CQC investigator’s notes reflecte
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the psychiatrist wrote (in part),
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V. State Agency Investigations of A
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On October 25, 2004, the Careys att
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INVESTIGATION BY THE TACONIC REGION
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are responsible for conducting thei
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School policies and procedures. Inv
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Page 122 and 123: SURVEY BY THE OMRDD CENTRAL OFFICEA
Page 124 and 125: additional information was availabl
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Page 132 and 133: the table contingent on appropriate
Page 134 and 135: Former Regional Director Articola s
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Page 146 and 147: think they wanted him to have the r
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Page 150 and 151: this allegation. The letter was tra
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Page 156 and 157: egistry, and then it seems there wa
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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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Page 186 and 187: Documentation of investigatory acti
Page 188 and 189: As noted above, Bowser also failed
Page 190 and 191: did not do a full care and treatmen
Page 192 and 193: CQC’s progress notes indicate tha
Page 194 and 195: epeatedly attempted to exaggerate t
Page 196 and 197: focuses. “We did it at the same t
Page 198 and 199: ead, “If he wets again - take she
Page 200 and 201: Although the statement provided to
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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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