New York State Senate Passes Jonathan’s Law

Thomas P. Morahan

March 26, 2009

The New York State Senate today passed Jonathan’s Law, sponsored by Senator Tom Morahan to ensure that parents and guardians have access to records pertaining to allegations and investigations of mistreatment of children in residential care facilities. The legislation was introduced after the tragic death in February of 13-year-old Jonathan Carey, an autistic teen who lived at the state-run O.D. Heck Development Center in Niskayuna.

"It is critical that parents and guardians who entrust their loved ones to the care of a residential facility be notified when there is evidence of abuse and/or mistreatment of their children, and that they have access to any records or reports that pertain to their children with respect to allegations and investigations," said Senator Morahan, Chairman of the Senate Mental Health and Developmental Disabilities Committee.

"The death of Jonathan Carey was a tragic event, and the allegations that surfaced after his death concerning his treatment at not one, but two facilities that were entrusted with caring for him have made clear the need for this legislation," said Senate Majority Leader Joseph L. Bruno. "Families of disabled children should be confident that they are receiving proper care. Jonathan’s Law will make sure parents and guardians have full access to information about their children’s treatment, leading to better oversight and care for vulnerable children in these facilities."

"The current mental health care system is unsafe and must be changed immediately," said Michael Carey. "Many of the developmentally disabled cannot speak or defend themselves. The parents and legal guardians are the voice and advocate for their own children. Access to important information regarding their children’s care is crucial for the safety of their children. Jonathan’s Law is about access to these needed records."

Jonathan’s Law (S.3105-A) does the following:

> ensures that parents or guardians have access to records concerning alleged abuse or investigations of abuse when it concerns their children. Upon written request, records must be released within 21 days of the conclusion of an investigation;

> mandates telephone notification to the parent or guardian of a patient when an incident occurs involving that patient, and upon request, a written incident report must be provided to the parent or guardian;

> directs the Commission on Quality Care and Advocacy for Persons with Disabilities (CQCAPD) to prepare and disseminate a pamphlet on the right to access records relating to patient care and treatment;

> requires the CQCAPD to notify the parents or guardians when there is credible evidence of alleged abuse or mistreatment; and

> establishes a Task Force on Mental Hygiene Records to study and make recommendations on additional legislation regarding access to patient records and reports.

Following the alleged mistreatment of Jonathan Carey at the Anderson School in Staatsburg, New York, where his parents were denied access to records about their son, he was transferred to the state-run O.D. Heck Development Center in Niskayuna. Jonathan died in February while being taken out in a van by two Center staff members who police say used an improper restraint on him. The workers failed to seek medical attention for 90 minutes after the restraint.

Following Jonathan’s death, the State Senate held a public hearing to examine a broad range of issues related to the care of individuals with mental disabilities, including the use of restraints, training in the use of such restraints, and the availability of confidential medical and investigative records to parents and guardians.

The Senate also passed legislation today (S.924), sponsored by Senator Morahan, that would establish a bill of rights for children in residential care facilities to ensure that all children will receive appropriate care and treatment, including the right to be free from abuse, to have an individualized treatment plan, to receive safe medication and communication with family members, to recreation, to religious freedom and to an appropriate education.

In addition, the Senate is expected to act in the near future on related legislation that would:

> increase the penalties for endangering the welfare of disabled persons, from a class A misdemeanor to a class E felony (S.3894, Senator Morahan);

> establish an OMRDD and OMH workers’ registry to prevent workers who have mistreated patients from simply resigning from one position and seeking another position at another facility (S.4474, Senator Morahan); and

> establish a Task Force on Quality Workers care to study and make recommendations on workers in the mental health fields, including qualifications for employment, staffing ratios, the use of overtime, employee retention and training, and protections for whistle blowers (S.4438, Senator Morahan).

The bill was sent to the Assembly.