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Cuomo pushing protections for disabled in state care

June 16, 2012
By MICHAEL VIRTANEN - Associated Press Writer , The Associated Press

ALBANY - With the Cuomo administration pushing for final passage next week of sweeping legislation to protect New York's disabled, some advocates who endorse the bill's intent say they see critical flaws.

At the same time, administrative efforts are quietly under way to fix a social services system plagued by decades of problems, including patient abuse, neglect and corrective failures. More than $18 billion in annual services are provided through a combination of state-run programs and nonprofit organizations.

The state Senate quickly passed the measure without debate a month ago, a week after it was introduced. It would establish a new state prosecutor and inspector general, with a central hot line for reporting any abuse of some 1 million disabled people in residences and day programs. It would also establish a single definition of abuse and neglect for six state agencies that deal with the disabled, a code of conduct for caregivers, and a central registry of incidents and documented abusers, who would be banned from providing direct care.

But lawmakers in the Assembly, including Speaker Sheldon Silver, have raised concerns about whether the proposed new enforcers will be able to work independently if they, the caregivers and governor that appointed them are all part of the same executive branch.

"If they screw up, who's going to look over their shoulder?" said Assemblyman Thomas Abinanti, a Westchester Democrat who has an autistic son. After reading the bill, Abinanti, a trial lawyer, said the career prosecutors of abuse cases and new inspector general should not report to the governor, but instead to the attorney general and state comptroller, respectively.

Both are separately elected from the governor.

The new office would inherit oversight from the state Commission on Quality of Care & Advocacy for Persons with Disabilities, established in 1977 following the Willowbrook scandal. It has been criticized its lack of enforcement powers. Overcrowding, filth and abuse at Willowbrook, a state institution on Staten Island housing more than 6,000 mentally disabled children, led to a class-action federal court settlement and its eventual closure.

Federal officials last year faulted the commission's lack of independence from the state agencies it oversees. The agencies themselves primarily do their own internal investigations of staff abuse and neglect complaints, while the commission's probes and findings of wrongdoing are referred back to the agencies.

As Gov. Andrew Cuomo outlined his bill in May, he told a room overflowing with the disabled and advocates there were more than 10,000 allegations of abuse against disabled New Yorkers in state-funded facilities last year, and they deserve protection.

In April, Commission Chairman Roger Bearden issued a report recommending his agency turn over its federally funded and mandated protection and advocacy programs, which currently include contracting with legal rights groups, to an outside nonprofit to be chosen by the governor. The commission said it has received three proposals from nonprofits to take over.

The commission investigated 429 cases of reported child abuse last year, and said it verified 47. It got 308 reported cases of adult abuse, and verified 208 findings. Those reports "were given to the appropriate provider agency for action," spokesman Bryan Jackson said.

Albany Law School's Civil Rights and Disability Law Clinic, a legal advocacy contractor for 30 years, said it supports many enforcement provisions of Cuomo's proposal, but called for clarifying the overlap with the new nonprofit, ensuring access to patient records and removing references to future union contracts that could pose complications.

One central issue among critics is the legislation's inability to punish past offenders, who even following formal complaints for hitting patients were allowed to return to work after short suspensions. Under union contracts, punishments are subject to arbitration.

The Civil Service Employees Association said it does not condone abuse but wants to make sure its members' due process rights are protected and that allegations are substantiated.

The nonprofit Southern Tier Independence Center said while the legislation envisions union negotiations for "a new table of penalties" that would ensure firing abusers, arbitrators can't be compelled to do anything, so there's no guarantee.

The state Office for People With Developmental Disabilities, responsible for the care of about 126,000 disabled, has already sought to fire more than 200 staff since Cuomo appointed Commissioner Courtney Burke in April 2011, nearly quadrupling the number of termination cases in a policy overhaul intended to show intolerance for abuse.

"We went back through the last five years and looked at instances where the agency should have sought termination and for whatever reason did not," spokesman Travis Proulx said. The agency has established its own table of penalties internally, and those employees are on notice that another offense "automatically bumps them up," he said.

The agency in March 2011 also issued a memo to all its nonprofit providers, requiring they immediately report all physical or sexual abuse to police.

District attorneys say abuse cases are difficult to prosecute when a disabled victim is incapable of testifying, which often means internal administrative proceedings instead, where a whistleblower makes a complaint and the accused worker denies it.

Proulx said having qualified prosecutors handling cases under the governor's bill would be more effective than having human resources professionals representing the state at arbitration.



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