A Critical Examination of State Agency Investigations into ...

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the psychiatrist wrote (in part), “It has been my clinical impression that Jonathan hasbeen suffering from post-traumatic stress disorder (PTSD) as a result of child abuse. Icannot presume to know what exactly took place at the Anderson School, and Jonathanwill never have the verbal abilities to tell us what happened.”The Inspector General’s Office interviewed this psychiatrist regarding his“clinical impression” that Jonathan was suffering from PTSD. The psychiatrist reportedthat the behaviors and aggression displayed by Jonathan were unusual, and it was his“clinical hunch” that Jonathan may have been suffering from PTSD as a result of thetreatment at the Anderson School. He said this was based on the parents’ verbal report ofevents, as well as the behaviors he observed and heard about from Jonathan’s parents.When asked whether he ever actually diagnosed Jonathan with PTSD, the psychiatristreplied “no.” He indicated that he “could never confirm or discount that diagnosis” ofPTSD in Jonathan, mostly because Jonathan was non-verbal and because no one reallyknew what happened at the Anderson School. He said that he never officially diagnosedJonathan with anything other than autism. The psychiatrist further told the InspectorGeneral that he recognized that the language in the letter to Maul may have been toostro ng, stating “I would never say that under oath that he had PTSD. I can’t back thatup.” He said he should have used “more cautious phrasing” and that “nobody candiagnose this child with PTSD with certainty.”In 2005, the Careys sued the Anderson School in state Supreme Court in Albanyclaiming Jonathan’s rights had been violated. The lawsuit is pending.By October 2005, Jonathan was living at the OMRDD-operated O.D. HeckDevelopmental Center in Niskayuna. There, he spent much of his school day in a quiet88
oom with three aides, wearing a one-piece jumper that was difficult for him to removehimself. By June 2006, the Careys had placed Jonathan in a residential program atTradewinds Educational Center in Utica. There, he was subdued “at least 141 times’’ inless than a month, “typically for aggressive behaviors.’’On July 20, 2006, Lisa Carey sought to remove Jonathan from Tradewinds. In ahandwritten letter to the OMRDD Capital District regional office she cited “severeescalation of maladaptive behaviors…excessive use of physical restraining…excessiveuse of placing Jonathan in a time out room…significant bruising,” lack of notification ofbruising, weight loss, and loss of academic learning.Jonathan returned to O.D. Heck, and shortly thereafter he turned 13 on September12, 2006. Five months later, on February 15, 2007, Jonathan was on a field trip when hewas smothered to death in a van during an improper restraint by a health aide. Twoworkers were prosecuted by the Albany County District Attorney and convicted in thecase.In May 2007, New York State enacted “Jonathan’s Law,” which gives parents andguardians of individuals with disabilities greater access to records related to their care. Acopy of the statute is provided in the Appendix to this report.89
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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,
Page 42 and 43: instances in which the Anderson Sch
Page 44 and 45: appropriateness of the Dutchess Cou
Page 46 and 47: Diagram of the Anderson School camp
Page 48 and 49: Additionally, the Mental Hygiene La
Page 50 and 51: Among the protections offered in th
Page 52 and 53: To ensure the safety of the residen
Page 54 and 55: The reports are shared with the fam
Page 56 and 57: esident’s physical condition, inc
Page 58 and 59: He could also become physically agg
Page 60 and 61: RESIDENCY AT THE ANDERSON SCHOOLIn
Page 62 and 63: Shortly after his admission, Jonath
Page 64 and 65: a snack such as cereal or verbal pr
Page 66 and 67: weekend, his behavior was so bad, s
Page 68 and 69: Experts retained by the Inspector G
Page 70 and 71: The October 9, 2004, Anderson Schoo
Page 72 and 73: eally losing it, going bananas basi
Page 74 and 75: document indicated that Jonathan at
Page 76 and 77: notified and she consented to the m
Page 78 and 79: The Anderson School Executive Direc
Page 80 and 81: naked to prevent him from leaving t
Page 82 and 83: Anderson School Weekly Body Check F
Page 84 and 85: continues. Does he take a multivita
Page 86 and 87: Executive Director stated that arou
Page 88 and 89: OMRDD regulations, OMRDD called the
Page 90 and 91: CQC investigator’s notes reflecte
Page 94 and 95: V. State Agency Investigations of A
Page 96 and 97: On October 25, 2004, the Careys att
Page 98 and 99: INVESTIGATION BY THE TACONIC REGION
Page 100 and 101: are responsible for conducting thei
Page 102 and 103: School policies and procedures. Inv
Page 104 and 105: Taconic Regional Office’s Finding
Page 106 and 107: an entry on an October 4, 2004, Beh
Page 108 and 109: When questioned about the Taconic r
Page 110 and 111: involved “fully in the program pl
Page 112 and 113: What were the employees doing that
Page 114 and 115: Central Office. Although the Anders
Page 116 and 117: acknowledged there was a “propose
Page 118 and 119: Taconic Regional Office’s Letter
Page 120 and 121: it is not his office’s policy to
Page 122 and 123: SURVEY BY THE OMRDD CENTRAL OFFICEA
Page 124 and 125: additional information was availabl
Page 126 and 127: his supervisor at the time, then-Ar
Page 128 and 129: that is absent from the Statement o
Page 130 and 131: clinical director role, psychiatris
Page 132 and 133: the table contingent on appropriate
Page 134 and 135: Former Regional Director Articola s
Page 136 and 137: BruisingAlthough the Careys noted t
Page 138 and 139: Seclusion / unauthorized time-out /
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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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focuses. “We did it at the same t
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ead, “If he wets again - take she
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Although the statement provided to
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The oversight deficiencies were eve
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that OCFS’s rate of indication is
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In the following sections the Inspe
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On at least one previous occasion,
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emotional injury was impossible in
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facility employee and CQC recommend
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Restrictive Statutory LanguageAltho
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ecognizes that the determination of
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CQC policy does not require further
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CQC wrote in its unfounded notifica
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INVESTIGATION BY THE NEW YORK STATE
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develop sufficient evidence to supp
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There is not proper and safe oversi
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the meeting, “We left it with the
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this important matter. Your corresp
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VI. RECOMMENDATIONSThe Inspector Ge
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ehavior management (14 NYCRR § 633
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child in an institutional setting,
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(a) Records and documents pertainin
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(ii) violent behavior exhibited by
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8. Such commissioners shall provide
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plan of prevention and remediation
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the commission as to the implementa
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Agency Responses to the Inspector G
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incident is reported to have occurr
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Page 2Joseph FischJune 5, 2008conta
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Recommendations: The Inspector Gene
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