Relates to discipline of an employee for physical or sexual abuse of people with developmental disabilities.
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 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 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 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 13t 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 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.
STATE OF NEW YORK ________________________________________________________________________ 2197 2013-2014 Regular Sessions IN SENATE 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 SPECIFIEDEXPLANATION--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.