A Critical Examination of State Agency Investigations into ...

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INVESTIGATION BY THE NEW YORK STATE COMMISSION ONQUALITY OF CARE AND ADVOCACY FOR PERSONS WITHDISABILITIESThe New York State Commission on Quality of Care and Advocacy for Personswith Disabilities (CQC) is charged with oversight of the state’s mental hygiene programsfor individuals with disabilities, regardless of whether those programs are run by the stateor by private providers certified by the state. CQC has broad authority to makerecommendations regarding care and treatment of individuals with disabilities in NewYork. As part of its oversight responsibilities, CQC is mandated by law to investigatecomplaints of child abuse or neglect occurring in OMRDD certified facilities, includingthe Anderson School. 40A child abuse investigation may generate additionalinvestigations when, in the course of the initial investigation, other deficiencies andconcerns related to quality of care are discovered. CQC’s broad mandate enables it toconduct investigations of systemic problems and to make recommendations forimproving services to individuals with disabilities, in addition to investigating specificcomplaints.The Inspector General found that CQC’s investigation of the Anderson School’streatment of Jonathan Carey was insufficient. CQC’s investigator conducted a limitedinvestigation and failed to adequately document her activities and to address all of theallegations concerning Jonathan’s care. CQC officials later overstated the extent of theagency’s investigatory activities in interviews with the Inspector General, in a hearingbefore the New York State Senate on the use of restraints, and in a written responseprovided to the Governor’s Office. In addition, CQC told the Inspector General that it40 Mental Hygiene Law § 45.07.154
arely “indicates” (substantiates) cases for serious emotional injury and almost neversubstantiates cases based on risk of serious emotional injury when conducting its childabuse investigations, despite the language of the law they are mandated to follow.CQC’s Child Abuse Investigation & FindingsOn October 23, 2004, the following report was transmitted to CQC from the StateCentral Register for investigation:Narrative – 11 yr old Jonathan is autistic and acts out by taking off hisclothes. The staff at the Anderson School withhold food from Jonathanwhenever he comes to the dinner table without clothes. This situation hasgone on everyday for the past month and he would go without two out ofhis three meals a day.Miscellaneous Information – The parents brought Jonathan to the hospitaltoday for a physical examination because they feared he was beingmolested at the residence. Jonathan currently has small bruises on hisback and he has increasingly become violent. He has only startedstripping naked in the last few months. The parents were told by staff thatJonathan received the bruises during a restraint. The staff also told theparents originally that Jonathan was refusing his meals before they foundout the School was deliberately withholding meals as a part of thetreatment plan. When the parents complained, the staff started givingJonathan soymilk and yogurt as a replacement.Laws Governing Child Abuse InvestigationsCQC conducted a child abuse investigation which was referred to it by the StateCentral Register in response to the specific complaint regarding Jonathan Carey’streatment at the Anderson School. In accordance with law, the purpose of theinvestigation was solely to determine if there was “some credible evidence” that the155
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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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Taconic Regional Office’s Finding
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an entry on an October 4, 2004, Beh
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Page 120 and 121: it is not his office’s policy to
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Page 124 and 125: additional information was availabl
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Page 128 and 129: that is absent from the Statement o
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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 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
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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 174 and 175: that the additional complaints of a
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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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Page 204 and 205: that OCFS’s rate of indication is
Page 206 and 207: 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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