Relates to discipline of an employee for physical or sexual abuse of people with developmental disabilities

Summary of provisions

The bill amends section 75 of the Civil Service Law to require that an individual who is named in an incident abuse report as the perpetrator of sexual or physical abuse and is an employee of the Office for People with Developmental Disabilities (OPWDD) shall be suspended until such charge is either found to be substantiated of unsubstantiated. If the charge is substantiated, the individual is terminated. Persons filing a false incident report are subject to section 175.30 of the Penal Law. The Commissioner of OPWDD must define physical or sexual abuse for purposes of this act as well as a timeframe for determining whether or not the allegation in the incident report is substantiated.

Justification

A March 12 article in the New York Times provided chill- ing documentation of the lack of effective discipline of employees with- in the State-operated system of services for persons with developmental disabilities for serious and substantiated instances of abuse. Specif- ically, very few such employees are terminated. The vast majority merely face lost vacation time, temporary suspensions or fines only to be returned to work to menace or abuse the highly vulnerable individuals under the care.

According to the Times, of "hundreds of cases reviewed by the Times, employees who sexually abused, beat or taunted residents were rarely fixed, even after repeat offenses, and in many cases simply transferred to other group homes run by the State."

This bill solves this problem by requiring termination of an employee for a substantiated instance of physical or sexual abuse. Furthermore, to protect people with developmental disabilities from the potential threat of abuse employees who are cited in an incident report as having abused such person under their care are suspended pending a determi- nation of whether the charge is substantiated.

The proposed bill requires that the Commissioner promulgate regulations defining physical or sexual abuse so that the bill deals with the most egregious offenses and the most dangerous employees. The bill also requires the Commissioner to outline a regulatory timeframe within which it must be determined whether or not a charge is substantiated. Further, the bill makes it clear that an individual who is the cause of a false

incident report is subject to the provisions of section 175.30 of the Penal Law.

The bill applies to individuals covered by collective bargaining agree- ments. Other, "at will" employees, not covered by collective bargaining agreements, can be effectively terminated without substantial recourse to due process and arbitration when they constitute a threat to the vulnerable individuals under their care.

Specifically, the New York Times reviewed 399 disciplinary cases involv- ing 233 workers, all accused of serious offenses. In all of the cases examined the charges were substantiated and each worker had been disci- plined at least once. Of the 399 cases, all substantiated, the State initiated termination hearings in 129 of them. Only 30 individuals were terminated according to the Times, a mere 13t of employees with substan- tiated serious offenses against a highly vulnerable population, many of whom do not have the capacity to testify on their own behalf.

According to the Times "in the remainder of cases, employees accused of abuse.... either were suspended or fined or had their vacation time reduced."

This "escape hatch" of intermediate penalties clearly retains employees who cannot be trusted with this extremely vulnerable population. This bill would eliminate this convenient "out" and provide for termination upon the substantiation of any serious charge of physical or sexual abuse. It would restore an appropriate balance of rights giving top priority to the wellbeing of persons with developmental disabilities, not the well-being of the employees who must care for them regardless of the threat those employees pose.

Legislative history

2011-12 - S.5257-C - Referred to Civil Services and Pensions

Fiscal implications

None.

Effective date

Immediately.