A Critical Examination of State Agency Investigations into ...

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