A Critical Examination of State Agency Investigations into ...

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arely used by CQC to substantiate a report. CQC’s application of abuse and neglectsections, in general, is discussed further below.Although CQC will not substantiate a case unless there is both a breach of anowed duty by a custodian and serious injury or risk thereof to a child, CQC’srecommendation against indicating a case does not mean that there was no injury to thechild or misconduct on the part of the caretaker. Rather, both factors must be met tosubstantiate the report for the purposes of the State Central Register of Child Abuse andMaltreatment.If CQC determines that a child abuse allegation is unfounded, it may nonethelessdetermine that the child has been a victim of “institutional neglect” pursuant to SocialServices Law § 412(10). A victim of institutional neglect is a child whose “health, safetyor welfare is harmed or placed in imminent danger of harm” as a result of a failure withinthe institution. Institutional neglect may be caused by, but is not limited to, a problemrelated to “the provision of supervision, food, clothing, shelter, education, medical,dental, optometric or surgical care.” Such a finding is not reflected in the State CentralRegister, but a determination of institutional neglect, as with other unfounded reports,results in a notification to OMRDD or the Office of Mental Health, and CQC may chooseto take further action, as it may with any founded or unfounded allegation of child abuse.Investigatory ActivitiesCQC assigned Team Leader Doreen Bowser to conduct a child abuseinvestigation of the matter. In this instance, Bowser was the sole investigator assigned tothis matter. Bowser conducted a site visit to the Anderson School on November 10,158
2004. This was the only site visit conducted by CQC on this entire matter. During thatlone visit, she interviewed four staff members: the three subjects of the child abuseallegation and a nurse. Additionally, the Director of Clinical Services provided Bowserwith a prepared typed statement, although she was not interviewed. No other staffmembers were interviewed on this matter.CQC reviewed a variety of documents during its investigation. These documentsincluded numerous clinical and communication records from the Anderson School;medical records; injury reports; special education records; and correspondence betweenOMRDD, the Careys, and their attorney.Report of FindingsCQC recommended that the allegation of child abuse or neglect be “unfounded,”or unsubstantiated. According to CQC’s December 2, 2004 Unfounded Case Summary,CQC’s rationale for its recommendation was as follows:There is credible evidence that between September 27, 2004 and October22, 2004, direct care staff occasionally withheld regularly scheduled mealsfrom Jonathan in an attempt to manage his behavior (i.e., refusing to eatand/or refusing to get dressed to come to meals). When Jonathan did notget his regularly scheduled meal, he was offered alternate food items in hisroom. This was part of Jonathan’s behavior plan.By their own accounts, all three subject staff members were aware ofJonathan’s behavior and what was being done to address it. However, asthere is no credible evidence to suggest that the child was withheld allfood or withheld food as a punishment, there is no breach of duty.Jonathan was not harmed nor does it appear that he was at substantial riskof harm. On October 9, 2004, after Jonathan had refused to eat for anentire day, the Residence Manager appropriately contacted nursing staffwho assessed Jonathan and noted no concerns. Subsequent examinationsby a pediatrician and a nutritionist also revealed no concerns. Finally, theER nurse…stated that the child appeared thin but not malnourished.159
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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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When questioned about the Taconic r
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involved “fully in the program pl
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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
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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 138 and 139: Seclusion / unauthorized time-out /
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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 164 and 165: The second paragraph of the case su
Page 166 and 167: CQC Director of Quality Assurance a
Page 168 and 169: primarily to the provision of meals
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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 206 and 207: In the following sections the Inspe
Page 208 and 209: On at least one previous occasion,
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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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