A Critical Examination of State Agency Investigations into ...

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Additionally, the Mental Hygiene Law and Social Services Law require theprompt reporting of any allegations of abuse or mistreatment of a person receivingservices to CQC and the State Central Register. 8New York State laws establish the statutory authority for the commissioner ofOMRDD to adopt rules and regulations applicable to all programs that provide servicesfor individuals with mental retardation and developmental disabilities. 9As pertinent tothis investigation, four sections of OMRDD regulations applied to the Anderson Schoolin 2004. One deals with the operation of a private school, Part 81 of the New York Codeof Rules and Regulations (14 NYCRR Part 81), while the other three contain genericregulations that apply to all OMRDD service providers. The three generic regulationsare: 14 NYCRR Part 624, which addresses reportable incidents and abuse at facilities; 14NYCRR Part 633, which addresses quality of care issues and protection of individuals;and 14 NYCRR Part 635, which deals with physical plant criteria and certain services.Part 81 describes requirements that apply to residential schools providing aprogram of 24-hour professional care and treatment for individuals with developmentaldisabilities. 10It includes, among others, regulations which speak to: certification;organization and administration, including a review of untoward incidents (includingassaults, accidents) and “extra risk procedures” (including behavior modification andrestraints or seclusion); an individual written plan of care and treatment; staffingqualifications; and recordkeeping.8 Mental Hygiene Law § 45, Social Services Law § 413.9 Mental Hygiene Law §13.10 14 NYCRR Part 81.44
Part 624 sets forth the minimum requirements for the management of incidents andabuse allegations, as required by OMRDD. To enhance the quality of care, protectconsumers from harm, mental and physical abuse, this part requires the reporting,investigating, reviewing, correcting and/or monitoring of certain events. It describes anddelineates what situations or events must be reported and to whom. Incidents aredocumented on an OMR Form 147 (I) or OMR Form 147 (A); entitled , Reportable orSerious Reportable Incidents and Allegation of Abuse Reporting Form, respectively. 11Allegations of abuse against children must be reported to the State Central Register andCQC immediately.Part 633’s intent is to specify minimum requirements for ensuring theprotection of persons with developmental disabilities 12 . Each facility is tasked withadequately addressing quality of care, individual rights, safety, and fiscal accountability asthey pertain to individuals receiving services. Part 633 also addresses employee hiring,training and conduct; supervisory requirements; follow-up to allegations of abuse;informed consent for medical treatment; and the opportunity to object to a plan of careand treatment. According to OMRDD General Counsel Patricia Martinelli Parts 624 and633 are controlling over any other regulations in this area.11 According to OMRDD’s Provider Resource Manual:Reportable Incident: Significant events/situations endangering a person's well-being; SeriousReportable Incident: Significant event/situation endangering a person's well-being so severe or sensitivethat the situation must also be immediately reported to the DDSO in the area of jurisdiction where theincident occurred; Abuse: The maltreatment or mishandling of a person receiving services which wouldendanger the physical or emotional well-being of the person through the action or inaction on the part ofanyone, whether or not the person is or appears to be injured or harmed.12 14 NYCRR 633.45
Page 2 and 3: Pursuant to Executive Law § 53, th
Page 4 and 5: INVESTIGATION BY THE TACONIC REGION
Page 6 and 7: The alleged abuse began in Septembe
Page 8 and 9: Michael and Lisa Carey. Along with
Page 10 and 11: The Careys filed a complaint with t
Page 12 and 13: The Taconic Regional Office’s Inv
Page 14 and 15: egulatory violations identified in
Page 16 and 17: compared to consumers in state-oper
Page 18 and 19: determined that Jonathan’s treatm
Page 20 and 21: Statements from CQC executives and
Page 22 and 23: investigating agencies or the Gover
Page 24 and 25: 7. There is no justification for a
Page 26 and 27: Legislative RecommendationThe Inspe
Page 28 and 29: and give positive reinforcement for
Page 30 and 31: separate reports. Taconic’s was i
Page 32 and 33: 4. Did the investigating agencies e
Page 34 and 35: in the Department of Special Educat
Page 36 and 37: III. BackgroundNEW YORK STATE SERVI
Page 38 and 39: abuse or maltreatment within New Yo
Page 40 and 41: 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 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 92 and 93: the psychiatrist wrote (in part),
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 /
Page 140 and 141:
monitoring or supervision by clinic
Page 142 and 143:
Investigation of complaint by an in
Page 144 and 145:
and included supporting documentati
Page 146 and 147:
think they wanted him to have the r
Page 148 and 149:
Inaccurate Information Provided to
Page 150 and 151:
this allegation. The letter was tra
Page 152 and 153:
While reports indicated that the An
Page 154 and 155:
facilities like the Anderson School
Page 156 and 157:
egistry, and then it seems there wa
Page 158 and 159:
INVESTIGATION BY THE NEW YORK STATE
Page 160 and 161:
target(s) of the complaint engaged
Page 162 and 163:
arely used by CQC to substantiate a
Page 164 and 165:
The second paragraph of the case su
Page 166 and 167:
CQC Director of Quality Assurance a
Page 168 and 169:
primarily to the provision of meals
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
Page 176 and 177:
and aggressive behavior related to
Page 178 and 179:
systemic significance.” In a hear
Page 180 and 181:
• Anderson School did not have co
Page 182 and 183:
Jonathan’s casein-free diet, that
Page 184 and 185:
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 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
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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