A Critical Examination of State Agency Investigations into ...

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the commission as to the implementation of plans of prevention and remediationapproved by such office.(c) Such The commissioner shall provide for the development and implementation of aplan of prevention and remediation with respect to an indicated report of child abuse ormaltreatment. Such action shall include:(i) within ten days of receipt of an indicated report of child abuse or maltreatment,development and implementation of a plan of prevention and remediation to be takenwith respect to a custodian or the residential facility in order to assure the continuedhealth and safety of children and to provide for the prevention of future acts of abuse ormaltreatment; and(ii) development and implementation of a plan of prevention and remediation, in theevent an investigation of a report of alleged child abuse or maltreatment determines thatsome credible evidence of abuse or maltreatment exists and such abuse or maltreatmentmay be attributed in whole or in part to noncompliance by the facility with the provisionsof this chapter or regulations of the office applicable to the operation of such residentialfacility. Any plan of prevention and remediation required to be developed pursuant toparagraph (ii) of this subdivision by a facility supervised by the office shall be submittedto and approved by such office in accordance with time limits established by regulationsof such office. Implementation of the plan shall be monitored by such office. Inreviewing the continued qualifications of a residential facility or program for an operatingcertificate, the office shall evaluate such facility's compliance with plans of preventionand remediation developed and implemented pursuant to this subdivision.§ 9. Task force on mental hygiene records. (a) There is hereby established in theexecutive department a task force, to be known as the "task force on mental hygienerecords", hereinafter referred to in this section as the "task force". The task force shallstudy and make recommendations regarding access to patient records and reports,including but not limited to incident reports, medical review board reports, and otherrecords and reports concerning minor patients and other patients with legal guardians ordesignated surrogates, who are receiving services in programs and facilities that arelicensed, certified or operated by the office of mental health or the office of mentalretardation and developmental disabilities.(b) The task force shall be comprised of sixteen members. Such members shall includethe following six agency representatives: the commissioner of mental retardation anddevelopmental disabilities, the commissioner of mental health, the commissionerofchildren and family services, the commissioner of health, the commissioner of education,and a representative from the commission on quality of care and advocacy for personswith disabilities. In addition, the governor shall appoint ten members as follows: tworepresentatives from provider agencies, two representatives of employee labororganizations, two mental hygiene patient advocates, and four parents or legal guardiansof patients who are or were receiving mental hygiene services.(c) The commissioner of mental retardation and developmental disabilities shall serve asBold type indicates new language.Strike out type indicates deleted language. 242
chair of the task force, and shall designate such employees of the office of mentalretardation and developmental disabilities as are reasonably necessary to provide supportservices to the task force. All state agencies shall provide assistance as may bereasonably requested by the task force. The members of the task force shall receive nocompensation for their services as members, but shall be allowed their actual andnecessary expenses incurred in the performance of their duties. Members of the taskforce shall be considered public officers for purposes of section 17 of the public officerslaw. A quorum shall consist of a majority of the members of the task force. Approval ofany matter shall require the affirmative vote of a majority of the members voting thereon.(d) The purpose of the task force shall be to identify the records and reports that areproduced with respect to each patient receiving care and treatment in a mental hygienefacility or program, examine current disclosure practices with regard to these materials,and determine whether improved access to these materials should be legislated. The taskforce shall focus on, but need not be limited to, examining currently confidential reports,such as medical review board reports, and other documents to which patients and theirlegal guardians have limited access. In addition, the task force shall identify alternativemeans of sharing information with parents and legal guardians, such as regular telephonecalls or meetings.(e) The task force shall provide a report with its findings and recommendations onincreasing and improving access to records and reports concerning minor patients andother mental hygiene patients with legal representatives, together with proposedlegislation and regulations relating thereto, to the governor and the legislature no laterthan September thirtieth, two thousand seven.§ 10. Subdivision (g) of section 16.17 of the mental hygiene law, as added786 of the laws of 1983, is amended to read as follows:by chapter(g) The commissioner may impose a fine upon a finding that the holder of the certificatehas failed to comply with the terms of the operating certificate or with the provisions ofany applicable statute, rule or regulation. The maximum amount of such fine shall be onethousand dollars per day or fifteen thousand dollars per violation.Such penalty may be recovered by an action brought by the commissioner in any court ofcompetent jurisdiction.Such penalty may be released or compromised by the commissioner before the matterhas been referred to the attorney general. Any such penalty may be released orcompromised and any action commenced to recover the same may be settled ordiscontinued by the attorney general with the consent of the commissioner.§ 11. This act shall take effect immediately.Bold type indicates new language.Strike out type indicates deleted language. 243
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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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As noted above, Bowser also failed
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did not do a full care and treatmen
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CQC’s progress notes indicate tha
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epeatedly attempted to exaggerate t
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Page 198 and 199: ead, “If he wets again - take she
Page 200 and 201: Although the statement provided to
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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 216 and 217: ecognizes that the determination of
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Page 220 and 221: CQC wrote in its unfounded notifica
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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 236 and 237: child in an institutional setting,
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Page 240 and 241: (ii) violent behavior exhibited by
Page 242 and 243: 8. Such commissioners shall provide
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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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