A Critical Examination of State Agency Investigations into ...

OCFS and CQC officials further indicated that adding to the difficulty of provingthat a custodian’s actions caused an emotional injury in an already emotionally disabledchild, the new emotional injury must manifest within the 60-day investigation windowafforded CQC to recommend indication, if it is to become part of the current abuse orneglect investigation. This is often impracticable, since some emotional injuries, such aspost traumatic stress disorder (PTSD), can manifest long after the incident occurred.Although it is true that CQC typically must complete its investigations within 60 days,CQC has extended the time frame for its investigations, or opened another investigation ifnew evidence of emotional injury is presented.Interviews with CQC officials failed to conclusively demonstrate under whatcircumstances or how often CQC will substantiate a case based upon emotional injury orthe risk thereof, but these instances appear to be very rare. Boehlert stated that there wereonly a “handful” of cases that CQC recommended indicating based on serious emotionalinjury. Luhn recalled one example where CQC recommended indication for seriousemotional injury where the physical injury “didn’t easily fit the classic definition.” Inregard to the language in the law allowing an indication if the custodian’s action “createsa substantial risk of any injury…which would be likely to cause…a serious emotionalinjury,” Luhn stated that “risk of emotional harm is impossible to quantify or proveso…we never indicate for that.”Luhn described one example of an exceptional matter in which CQC indicated(substantiated) for emotional harm absent any serious physical injury to the child. Luhndescribed a case several years ago in which CQC did not “have to argue that one at trial[because] the person accepted it” where an autistic consumer was pricked with a pin by a207