A Critical Examination of State Agency Investigations into ...

investigation report noted that the child “demonstrates aggression during medicationadministration in the form of lowering his head [and] swinging his head.” The subjectadmitted the child “arched his back and his head went up” when she tried to administerthe eye drops. The facility’s internal investigation, not held to the standards of SocialServices Law § 412, substantiated the allegation and terminated the employee.CQC found a breach of a duty that was owed to the resident, but not an injury oran imminent risk thereof. With the following explanation, CQC recommended to theState Central Register that the case be unfounded:The staff member’s actions in applying eyedrops while in an admittedlyexasperated state and in turn allowing the eyedropper to touch the child’seye clearly placed the child at risk of harm. However, there is no medicalevidence that this breach of duty resulted in even a slight injury to thechild. Therefore, although the staff member’s actions placed the child atrisk of harm, there is insufficient credible evidence that the risk was of animminent nature.E-mail generated during CQC’s investigation demonstrates that the issue ofwhether there was sufficient evidence of a “substantial risk of physical injury, excludingminor injury” was given much thought within CQC prior to the determination to unfoundthe case. However, CQC’s ultimate determination that the patient’s risk of cornealdamage was not “imminent” is puzzling. According to the logic offered in CQC’srecommendation to the State Central Register, the child was not at risk of injury becausehe was not injured. This decision demonstrates a poor understanding of the applicabilityof the “risk” criteria in Social Services Law. Under the Family Court Act, which usessimilar criteria in cases regarding parental abuse, courts have clearly stated that nophysical injury need be present to make a finding of abuse.203