senate Bill S2197

2013-2014 Legislative Session

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

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to civil service and pensions
Jan 14, 2013 referred to civil service and pensions

S2197 - Bill Details

See Assembly Version of this Bill:
A2715
Current Committee:
Law Section:
Civil Service Law
Laws Affected:
Amd ยง75, Civ Serv L
Versions Introduced in 2011-2012 Legislative Session:
S5257C, A7670C

S2197 - Bill Texts

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

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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.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2197

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 14, 2013
                               ___________

Introduced  by Sen. CARLUCCI -- read twice and ordered printed, and when
  printed to be committed to the Committee on Civil Service and Pensions

AN ACT to amend the civil service law, in relation to  the  physical  or
  sexual abuse of people with developmental disabilities

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 75 of the civil service law is amended by adding  a
new subdivision 5 to read as follows:
  5.  DISCIPLINE  OF  AN EMPLOYEE FOR PHYSICAL OR SEXUAL ABUSE OF PEOPLE
WITH DEVELOPMENTAL DISABILITIES. (A) NOTWITHSTANDING ANY OTHER PROVISION
OF LAW TO THE CONTRARY, IN THE EVENT THAT AN EMPLOYEE OF  A  PROGRAM  OR
FACILITY  OPERATED,  CERTIFIED OR LICENSED BY THE OFFICE FOR PEOPLE WITH
DEVELOPMENTAL DISABILITIES IS IDENTIFIED IN AN INCIDENT  REPORT  AS  THE
PERPETRATOR  OF  AN  ACT  OF  PHYSICAL  OR SEXUAL ABUSE AGAINST A PERSON
RECEIVING CARE IN SUCH PROGRAM  OR  FACILITY,  SUCH  EMPLOYEE  SHALL  BE
PLACED  ON  ADMINISTRATIVE  LEAVE  IMMEDIATELY  PENDING FURTHER INVESTI-
GATION. IN THE EVENT THAT THE INCIDENT REPORT IS SUBSTANTIATED, AND  THE
PHYSICAL  OR SEXUAL ABUSE IS FOUND, THE EMPLOYEE SHALL BE TERMINATED AND
SUCH TERMINATION DECISION SHALL BECOME FINAL.
  (B) A PERSON WHO CAUSES A FALSE INCIDENT REPORT TO BE  FILED  PURSUANT
TO PARAGRAPH (A) OF THIS SUBDIVISION, SHALL BE SUBJECT TO SECTION 175.30
OF THE PENAL LAW.
  (C)  NOTWITHSTANDING  SECTION  TWO HUNDRED NINE-A OF THIS CHAPTER, FOR
PURPOSES OF DISCIPLINARY PROCEDURES CONTAINED IN A COLLECTIVE BARGAINING
AGREEMENT, THIS SUBDIVISION SHALL ONLY APPLY TO DISCIPLINARY  PROCEDURES
IMPLEMENTED UNDER A COLLECTIVE BARGAINING AGREEMENT THAT TAKES EFFECT ON
OR AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION.
  (D)  THE  COMMISSIONER  SHALL PROMULGATE REGULATIONS TO IMPLEMENT THIS
SUBDIVISION, INCLUDING A DEFINITION OF "PHYSICAL OR  SEXUAL  ABUSE"  AND
THE  ESTABLISHMENT  OF TIME FRAMES NOT TO EXCEED A TIME PERIOD SPECIFIED

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05313-01-3

S. 2197                             2

IN REGULATION FOR INVESTIGATION AND DETERMINING WHETHER ANY SUCH ALLEGA-
TION IS SUBSTANTIATED.
  (E) IN THE EVENT OF A SUBSTANTIATED REPORT OF PHYSICAL OR SEXUAL ABUSE
AGAINST  AN  EMPLOYEE  NOT COVERED BY A COLLECTIVE BARGAINING AGREEMENT,
THE EMPLOYEE SHALL BE TERMINATED AND SUCH TERMINATION  SHALL  BE  FINAL.
HOWEVER,  SUBSTANTIATION OF A REPORT OF PHYSICAL OR SEXUAL ABUSE BY SUCH
EMPLOYEE SHALL NOT BE A PREREQUISITE FOR DISCIPLINARY ACTION,  INCLUDING
TERMINATION,  NOR  SHALL  THIS  SUBDIVISION SUPERSEDE EXISTING POLICIES,
AGREEMENTS OR CONTRACTS AS APPLICABLE NOR SHALL ANYTHING IN THIS  SUBDI-
VISION ABRIDGE THE AT-WILL STATUS OF INDIVIDUALS EMPLOYED IN SUCH CAPAC-
ITY.
  S 2. This act shall take effect immediately.

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