Senate Bill S5257C

                                BILL NUMBER:S5257

TITLE OF BILL:
An act
to amend the civil service law, in relation to the physical or sexual
abuse of people with developmental disabilities

PURPOSE:
This bill amends Section 75 of the Civil Services law to
ensure that employees with a record of substantiated physical or
sexual abuse against people with developmental disabilities can no
longer care for those individuals. It also ensures that employees
charged with an allegation of such conduct cannot care for people
with developmental disabilities until such allegations are found to
be unsubstantiated.

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 or
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 OPWOD 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. The Act supersedes collective
bargaining agreements.

JUSTIFICATION:

A March 12 article in the New York Times provided chilling
documentation of the lack of effective discipline of employees within
the State-operated system of services for persons with developmental
disabilities for serious and substantiated instances of abuse,
Specifically, 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
fired, 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 determination 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
agreements. 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
involving 233 workers, all accused of serious offenses. In all of the
cases examined the charges were substantiated and each worker had
been disciplined 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 13% of
employees with substantiated 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 well-being 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:

None.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.

                                BILL NUMBER:S5257A

TITLE OF BILL:
An act
to amend the civil service law, in relation to the physical or sexual
abuse of people with developmental disabilities

PURPOSE:;

This bill amends Section 75 of the Civil Services law to ensure that
employees with a record of substantiated physical or sexual abuse
against people with developmental disabilities can no longer care for
those individuals. It also ensures that employees charged with an
allegation of such conduct cannot care for people with developmental
disabilities until such allegations are found to be unsubstantiated.

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 or
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 OPWOD 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. The
Act supersedes collective bargaining agreements.

JUSTIFICATION:

A March 12 article in the New York Times provided chilling
documentation of the lack of effective discipline of employees within
the State-operated system of services for persons with developmental
disabilities for serious and substantiated instances of abuse,
Specifically, 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
fired, 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 determination 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
agreements. 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
involving 233 workers, all accused of serious offenses. In all of the
cases examined the charges were substantiated and each worker had
been disciplined 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 13% of
employees with substantiated 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 well-being 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:

None.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

Immediately.

                                BILL NUMBER:S5257B

TITLE OF BILL:
An act
to amend the civil service law, in relation to the physical or sexual
abuse of people with developmental disabilities

PURPOSE:;
This bill amends Section 75 of the Civil Services law to ensure that
employees with a record of substantiated physical or sexual abuse
against people with developmental disabilities can no longer care for
those individuals. It also ensures that employees charged with an
allegation of such conduct cannot care for people with developmental
disabilities until such allegations are found to be unsubstantiated.

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 or
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 OPWOD 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. The
Act supersedes collective bargaining agreements.

JUSTIFICATION:
A March 12 article in the New York Times provided chilling
documentation of the lack of effective discipline of employees within
the State-operated system of services for persons with developmental
disabilities for serious and substantiated instances of abuse,
Specifically, 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
fired, 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
determination 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
agreements. 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
involving 233 workers, all accused of serious offenses. In all of the
cases examined the charges were substantiated and each worker had
been disciplined 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 13% of
employees with substantiated 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 well-being 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:
None.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.