BILL NUMBER:S2197

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  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.