A Critical Examination of State Agency Investigations into ...

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child in an institutional setting, including Social Services Law §412, to determineif they are adequate.232
AppendixJonathan’s LawAN ACT to amend the mental hygiene law, in relation to incident notifications andreports, release of records pertaining to allegations and investigations of abuse andmistreatment, directing the state commission on quality of care and advocacy for personswith disabilities to serve as a clearinghouse on the right of access to records and reportsrelating to patient care, incident reporting, child abuse and mistreatment in residentialca re, and fines for violations by holders of operating certificates; and to establish a taskforce on mental hygiene recordsThe People of the State of New York, represented in Senate and Assembly, doenact as follows:§ 1. Short title. This act shall be known and may be cited as "Jonathan's law".§ 2. The mental hygiene law is amended by adding two new sections 33.23 and 33.25 toread as follows:§ 33.23 Incident notifications and reports.(a) The director of a facility, as defined in subdivision six of section 1.03 of thischapter, shall provide telephone notice of an incident involving a patient receivingcare and treatment at such facility to a qualified person, as defined in paragraph sixof subdivision (a) of section 33.16 of this article. Such notice shall be provided withintwenty-four hours of the initial report of such incident. For the purposes of thissection, "incident" shall mean an accident or injury that affects the health or safetyof a patient. Upon the request of a qualified person, the director shall promptlyprovide to him or her a copy of the written incident report, provided that the namesand other personally identifying information of patients and employees shall not beincluded unless such patients and employees authorize disclosure. The director ofthe facility shall also offer to hold a meeting with such qualified person to furtherdiscuss the incident. In addition, within ten days, the director of the facility shallprovide such qualified person with a written report on the actions taken to addressthe incident.(b) Whenever federal law or applicable federal regulations restrict, or as acondition for the receipt of federal aid require, that the release of records orinformation pursuant to this section be more restrictive than is provided under thissection, the provisions of federal law or regulations shall be controlling.§ 33.25 Release of records pertaining to allegations and investigations of abuse andmistreatment.Bold type indicates new language.Strike out type indicates deleted language. 233
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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
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CQC Director of Quality Assurance a
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primarily to the provision of meals
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interview notes would have been exp
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Jonathan’s “demeanor has change
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that the additional complaints of a
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and aggressive behavior related to
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systemic significance.” In a hear
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• Anderson School did not have co
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Jonathan’s casein-free diet, that
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treatment review to the Careys, the
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,
Page 210 and 211: emotional injury was impossible in
Page 212 and 213: facility employee and CQC recommend
Page 214 and 215: Restrictive Statutory LanguageAltho
Page 216 and 217: ecognizes that the determination of
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
Page 224 and 225: develop sufficient evidence to supp
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 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
Page 244 and 245: plan of prevention and remediation
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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