S2197-2013 Actions

• Jan 14, 2013: REFERRED TO CIVIL SERVICE AND PENSIONS

S2197-2013 Memo

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.

S2197-2013 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         2197
 2013-2014 Regular Sessions
 I N  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 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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