A Critical Examination of State Agency Investigations into ...

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(a) Records and documents pertaining to allegations and investigations into patientabuse or mistreatment at a facility, as defined in subdivision six of section 1.03 ofthis chapter, including but not limited to all complaints and reports made pursuantto subdivision (c) of section 45.07 and section 45.17 of this title, shall be released to aqualified person, as defined in paragraph six of subdivision (a) of section 33.16 ofthis article, upon a written request by such qualified person. Such records anddocuments shall be made available by the appropriate office within twenty-one daysof the conclusion of its investigation, provided that the names and other personallyidentifying information of other patients and employees shall not be included unlesssuch patients and employees authorize disclosure.(b) Records and reports released in accordance with this section shall be releasedpursuant to subdivision (b) of section 33.23 of this article and shall not be furtherdisseminated by the recipient.§ 3. Section 45.07 of the mental hygiene law is amended by adding a new(x) to read as follows:subdivision(x) Prepare and disseminate an educational pamphlet, and serve as an informationclearinghouse, on the rights of parents and legal representatives and advocates toaccess records and reports relating to patient care and treatment and all otherrelevant documents from programs and facilities that are licensed, certified oroperated by an office of the department. Such pamphlet shall include a discussionof how to appeal a decision denying a requested record or report.§ 4. Paragraphs 1, 3 and 5 of subdivision (c) of section 45.07 of the mental hygiene law,as amended by section 6 of part H of chapter 58 of the laws of 2005, are amended to readas follows:1. Establish procedures to assure effective investigation of complaints of patients,residents and their parents or legal guardians and employees of mental hygienefacilities affecting such patients and residents including allegations of patient abuse ormistreatment, including all reports of abuse or maltreatment of children in residential careas defined in paragraph (g) of subdivision seven of section four hundred twelve of thesocial services law and made pursuant to title six of article six of such law. Suchprocedures shall include but not be limited to receipt of written complaints, interviews ofpersons, patients, residents and of employees and onsite monitoring of conditions. Inaddition, the commission shall establish procedures for the speedy and impartial reviewof patient and resident abuse and mistreatment allegations called to its attention inwriting.3. Where the office of children and family services determines that some credibleevidence of the alleged abuse or maltreatment exists, the commission shall notify theparents or legal guardians of such patient. The commission also shall recommend tothe office of mental health or the office of mental retardation and developmentaldisabilities, as the case may be, that appropriate preventive and remedial actionsBold type indicates new language.Strike out type indicates deleted language. 234
including legal actions, consistent with appropriate collective bargaining agreements andapplicable provisions of the civil service law, and pursuant to standards of such offices,promulgated pursuant to section 16.29 or 29.29 31.30 of this chapter and other applicableprovisions of law, be undertaken with respect to a residential care facility and/or thesubject of the report of child abuse or maltreatment. However, nothing Nothing in thisparagraph shall prevent the commission from making recommendations, as provided forby this paragraph, even though the investigation may fail to result in a determination thatthere is some credible evidence of the alleged abuse or maltreatment.5. The commission shall prepare an annual report to the governor and legislature on theprotection of children in residential care from abuse and maltreatment, including theimplementation of the provisions of this paragraph and other applicable provisions oflaw, including reports received, results of investigations by types of facilities, remedialactions taken, and efforts undertaken by the office of mental health and the office ofmental retardation and developmental disabilities to provide training pursuant tostandards established by such offices pursuant to section 16.29 or 29.29 31.30 of thischapter.§ 5. Subparagraph b of paragraph 2 of subdivision (c) of section 45.07 of the mentalhygiene law, as amended by section 6 of part H of chapter 58 of the laws of 2005, isamended to read as follows:b. maintain and keep up-to-date a child abuse and maltreatment record of all casesreported together with any additional information obtained and a record of the finaldisposition of the report, including recommendations by the commission and action takenwith respect to the residential care facility or the subject of a report of child abuse ormaltreatment pursuant to section 16.29 or 29.29 31.30 of this chapter;§ 6. Section 29.29 of the mental hygiene law, as added by chapter 765 of the laws of1981, subdivisions 6, 7 and 8 as amended by chapter 32 of the laws of 1992, is amendedto read as follows:§ 29.29 Incident reporting procedures.The commissioners of the offices of mental health and mental retardation anddevelopmental disabilities of the department shall establish policies and uniformprocedures for their respective offices for the reporting, compilation, and analysis ofincident reports. Incident reports shall, for the purposes of this chapter, mean reports ofaccidents and injuries affect ing patient health and welfare at such departmental facilities.These policies and procedures shall include but shall not be limited to:1. The establishment of a patient care and safety team at the facility level which shallinclude but not be limited to a: physician, nurse, social worker and therapy aide, toinvestigate and report to the facility director on:(i) suicides or attempted suicides;Bold type indicates new language.Strike out type indicates deleted language. 235
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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
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Documentation of investigatory acti
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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
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Page 212 and 213: facility employee and CQC recommend
Page 214 and 215: Restrictive Statutory LanguageAltho
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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 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
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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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