State Faults Care for the Disabled
By Danny Hakim New York Times March 22, 2012
ALBANY – Nearly 300,000 disabled and mentally ill New Yorkers face a “needless risk of harm” because of conflicting regulations, a lack of oversight and even disagreements over what constitutes abuse, according to a draft state report obtained by The New York Times.
In 2010, the number of abuse accusations at large institutions overseen by the State Office for People With Developmental Disabilities outnumbered the beds in those facilities – a sign of trouble in buildings where many of the state’s most vulnerable residents are housed, and where the state has repeatedly had trouble with abusive employees and unexplained injuries and deaths among residents, according to the report.
The report was commissioned by Gov. Andrew M. Cuomo in response to a Times investigation last year into problems of abuse, neglect and fraud in state homes and institutions for the developmentally disabled. A draft of the report began circulating in October, but has not yet been released to the public; people frustrated by the delay separately provided to The Times an executive summary and a bound copy drafted in December.
Problems were found at all six state agencies that provide residential service to children and adults with an array of disabilities, mental illnesses or other issues that qualify them to receive specialized care by the state.
According to the report, a regulatory maze has complicated and in some cases constrained the state’s response to claims of abuse. At one agency, the police are summoned if “there is reason to believe that a crime has been committed,” while another agency does so only if a potential felony has been committed. A third agency turns to law enforcement only if a local district attorney has “indicated a prior interest,” the report said.
The Cuomo administration has expressed concern about issues identified in The Times and addressed by the report. Over the past year, the governor has forced the resignations of the commissioner of the Office for People With Developmental Disabilities and the top official at the State Commission on Quality of Care and Advocacy for Persons With Disabilities, and he has moved to fire 130 employees involved in accusations of serious episodes of abuse or neglect.
The administration has also taken a number of steps to shore up oversight and care of the developmentally disabled, putting in place new rules for drug testing and criminal background checks of staff members who work with the vulnerable.
“The draft report was the subject of a cabinet and press briefing in October, and we are currently working on a transformational reform plan based on the report that will be announced soon,” said Richard Bamberger, the governor’s communications director.
But some advocates and lawmakers have been frustrated with what they see as the slow pace of progress. Michael Carey, an advocate for the developmentally disabled whose son with autism died in state care in 2007, said he was concerned that the governor was waiting to address the issue until after legislative budget negotiations, which could make it more difficult to find money for new programs.
“It’s gross negligence that that report has not come out, and it’s beyond frustrating,” Mr. Carey said, adding, “The reforms to date are baby steps towards monster problems.” And Senator Roy J. McDonald, the chairman of the State Senate’s mental health committee, sent a letter this month to the governor urging him to turn over the report “so that we can begin working towards enacting long overdue protections and safeguards.”
The Times last year identified numerous problems with the state’s care for the developmentally disabled: only 5 percent of abuse accusations were forwarded to law enforcement, and employees who physically or sexually abused the disabled were often transferred among group homes instead of being fired.
Ten percent of deaths of the developmentally disabled in state care were listed in a state database as having occurring from unknown causes, suggesting widespread failures in efforts to determine why people die in state care.
At the same time, executives at some nonprofit organizations hired by the state to care for the disabled have been earning seven-figure annual compensation packages and taking a wide range of Medicaid-financed perks for themselves and their friends and families.
The state report, a 105-page document called “The Measure of a Society: Protection of Vulnerable Persons in Residential Facilities Against Abuse and Neglect,” critiques the practices at six state agencies that oversee residential programs for vulnerable populations, at an annual cost of $17.9 billion. The report’s principal author was Clarence Sundram, who was hired by Mr. Cuomo a year ago as a special adviser on vulnerable people. Mr. Sundram had been named by Gov. Hugh L. Carey to lead the Commission on Quality of Care, and he ran the commission for two decades until he left amid a disagreement with the administration of Gov. George E. Pataki.
In his report, Mr. Sundram found inconsistent data about accusations of abuse and neglect at state-run facilities. Some agencies train their investigators; others do not. Evidentiary standards vary. And definitions of abuse or neglect vary depending upon which agency has oversight.
The report found that residential schools run by the Education Department did not track abuse claims, while the State Health Department had “no reliable data” for accusations at its homes for mentally ill adults. At the large institutions overseen by the Office for People With Developmental Disabilities, the report found 119.68 abuse claims for every 100 beds.
The homes monitored by the Health Department have been a particular concern for a decade, since a series of articles in The Times in 2002 called attention to abuse there. Nonetheless, the report found, the department has few standards for investigating its homes: the agency’s regulations “do not directly address an operator’s responsibility to investigate incidents or allegations of abuse,” the report concluded.
The Office of Children and Family Services also has few standards to determine when and how to investigate abuse accusations at some facilities. And the Education Department does little to oversee its programs for the disabled, which include two residential schools – one for the deaf and one for the blind – with a total of 200 beds, as well as educational programs at nonprofit residential schools serving 2,500 students.
The department does not require schools to have incident-reporting or investigation policies, and does not require abuse and neglect investigations, relying on the Office of Children and Family Services to conduct child-abuse inquiries.
The Education Department, which reports to the State Board of Regents and not to the governor, said the Sundram report highlighted “the need for systemwide reform.”
The department “supports change that would enhance protections for vulnerable children and adults in residential settings across New York State and in out-of-state facilities,” said its spokesman, Tom Dunn.
The report recommended several changes to state laws and regulations in an effort to prevent and better respond to abuse of the vulnerable. But it continues to rely to a large extent on self-policing, which could be a point of criticism among advocates.
“These human services systems did not arrive overnight to the point at which they find themselves, nor will they get to a dramatically better level of performance immediately,” the report said. “But there is a need to begin the process of reform with a sense of urgency.”
One proposed law would require the establishment of a 24-hour hot line to report abuse of adults in state care – the state already has a child-abuse hot line – as well as the creation of a single entity to review abuse accusations regardless of the agency involved. Another proposed law would bar people with convictions for violent felonies and sex crimes from jobs with state agencies, or with state-contracted nonprofits groups, that provide care for the vulnerable.
Because the current charge often filed against those accused of abuse – endangering the welfare of an incompetent or physically disabled person – is a misdemeanor, the report also proposes creating new offenses with tougher penalties to prosecute such crimes.
During arbitration proceedings against employees accused of abuse, a representative of the abused vulnerable person should also be present, the report suggests. And, the report says, the state should follow through with a promise to establish specific penalties for offenses by abusive employees, a concept that the Civil Service Employees Association agreed to during labor negotiations months ago.