A Critical Examination of State Agency Investigations into ...

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ecognizes that the determination of which individuals belong on the register is extremelyimportant. The definitions set forth in Social Services Law §§ 412(8)-(9) should properlyreflect the state’s policies to protect children from abuse. The Inspector General findsthat further examination of the state’s definitions of child abuse and neglect as applied tochildren with disabilities in institutional settings is warranted.Application of Social Services Law § 412(10), Institutionally NeglectedChild in Residential CareThe Inspector General found that CQC’s policies for designating a child as an“institutionally neglected child in residential care” are contrary to the plain language ofthe law and the legislative intent of the statute. Instead of identifying cases that couldbenefit from additional monitoring by OMRDD, CQC uses this designation to quicklyclose cases after a preliminary investigation, regardless of whether there is need forOMRDD or the facility to follow-up.In 1992, the legislature enacted subdivision 10 of Social Services Law § 412defining an “institutionally neglected child in residential care” as a child whose:Health, safety or welfare is harmed or placed in imminent danger of harmas a result of a lack of compliance with applicable standards of the stateagency operating, certifying or supervising such facility or program for thecare and treatment of such child or an agreed upon plan of prevention andremediation pursuant to this chapter or the mental hygiene law, theexecutive law or the education law, arising from abuse or neglect of achild in residential care, including, but not limited to, the provision ofsupervision, food, clothing, shelter, education, medical, dental, optometricor surgical care.If CQC makes a finding of institutional neglect related to an allegation of childabuse or neglect, it is considered unsubstantiated for the purposes of the State CentralRegister. Accordingly, no individual’s name will be retained as substantiated on the212
State Central Register as a result of a finding of institutional neglect. However, a findingof institutional neglect results in a letter informing the provider that a designation ofinstitution neglect “requires the facility to review the matter as directed by incidentreporting regulations, and alerts the State certifying agency to take actions which it deemsappropriate.”legislature’s intention was to “ensure that allegations that are related to the quality of carebut do not constitute abuse or neglect are referred to the appropriate state licensing orIn contrast to the explicit legislative intent, CQC officials interviewed stated thatthe definition was created by the legislature to allow CQC to address some State CentralRegister generated allegations quickly and without extensive investigation, and then closethem out as unfounded within a seven day period. CQC Assistant Counsel Luhn reportedthat cases are placed under this designation by CQC when they are “clearly anddemonstrably not serious issues…they are not a credible abuse or maltreatment case” andthere is “no injury of any consequence [to the child].”investigators:According to the sponsors of the legislation that created this definition, theoperating agency for appropriate action.”In accordance with CQC’s interpretation of the statute, CQC’s policy instructsScreen for Institutional Neglect (I.N.): Some cases may be closed within 7days with a recommendation of Institutional Neglect. I.N. is adetermination used to define those cases in which a preliminaryinvestigation has determined a child has suffered no injury or an injurywhich is not severe enough to meet the harm threshold under [§412]. Inaddition the evidence does not establish that the child was placed atimminent risk of substantial harm…the case is closed without furtherinvestigation.213
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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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What were the employees doing that
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Central Office. Although the Anders
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acknowledged there was a “propose
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Taconic Regional Office’s Letter
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it is not his office’s policy to
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SURVEY BY THE OMRDD CENTRAL OFFICEA
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additional information was availabl
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his supervisor at the time, then-Ar
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that is absent from the Statement o
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clinical director role, psychiatris
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the table contingent on appropriate
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Former Regional Director Articola s
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BruisingAlthough the Careys noted t
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Seclusion / unauthorized time-out /
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monitoring or supervision by clinic
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Investigation of complaint by an in
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and included supporting documentati
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think they wanted him to have the r
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Inaccurate Information Provided to
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this allegation. The letter was tra
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While reports indicated that the An
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facilities like the Anderson School
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egistry, and then it seems there wa
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INVESTIGATION BY THE NEW YORK STATE
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target(s) of the complaint engaged
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arely used by CQC to substantiate a
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The second paragraph of the case su
Page 166 and 167: CQC Director of Quality Assurance a
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Page 170 and 171: interview notes would have been exp
Page 172 and 173: Jonathan’s “demeanor has change
Page 174 and 175: that the additional complaints of a
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Page 178 and 179: systemic significance.” In a hear
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Page 182 and 183: Jonathan’s casein-free diet, that
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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
Page 202 and 203: The oversight deficiencies were eve
Page 204 and 205: that OCFS’s rate of indication is
Page 206 and 207: In the following sections the Inspe
Page 208 and 209: On at least one previous occasion,
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Page 212 and 213: facility employee and CQC recommend
Page 214 and 215: Restrictive Statutory LanguageAltho
Page 218 and 219: CQC policy does not require further
Page 220 and 221: CQC wrote in its unfounded notifica
Page 222 and 223: INVESTIGATION BY THE NEW YORK STATE
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Page 226 and 227: There is not proper and safe oversi
Page 228 and 229: the meeting, “We left it with the
Page 230 and 231: this important matter. Your corresp
Page 232 and 233: VI. RECOMMENDATIONSThe Inspector Ge
Page 234 and 235: ehavior management (14 NYCRR § 633
Page 236 and 237: child in an institutional setting,
Page 238 and 239: (a) Records and documents pertainin
Page 240 and 241: (ii) violent behavior exhibited by
Page 242 and 243: 8. Such commissioners shall provide
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Page 246 and 247: the commission as to the implementa
Page 248 and 249: Agency Responses to the Inspector G
Page 250 and 251: incident is reported to have occurr
Page 252 and 253: Page 2Joseph FischJune 5, 2008conta
Page 254 and 255: Recommendations: The Inspector Gene
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