GOVERNOR PATERSON ANNOUNCES AGREEMENT WITH LEGISLATIVE LEADERS ON PACKAGE OF REFORMS TO PROTECT CHILDREN AND ADULTS IN RESIDENTIAL CARE

Includes Legislation to Enhance Standards Used to Report and Investigate Child Abuse and Neglect in Residential Facilities Extends Period for Retroactive Requests under Jonathan’s Law

Governor David A. Paterson today announced the Legislature has agreed to pass a package of reforms designed to enhance protections for children and adults in residential care. The reforms will target four specific areas, including enhancing the standards used to determine if abuse has occurred, extending the time period for retroactive requests for information under Jonathan’s Law, prohibiting the withholding of food or hydration, and making recommendations as to appropriate work hours for direct care employees in mental hygiene facilities.

“New York State has long been recognized as a national leader in serving the needs of individuals with disabilities, assisting those individuals to live as full lives as possible. However, these reforms were essential to maintain that reputation and show the public that we are responsive to their concerns,” said Governor Paterson. “The agreements reached today with the Legislature will build upon New York State’s leadership role in this area by providing additional protections against abuse and neglect of children in residential facilities, as well as acting to address other quality of care issues in the mental hygiene system. Making the decision to place a child in residential care is an exceptionally difficult choice, and these bills will give families additional confidence in their decision to entrust the care of their children to others.”

This package includes four separate bills, all designed to enhance the protection of children and adults in residential care and other mental hygiene programs in distinct ways.

Broaden Definition of Abuse

Originally proposed by Governor Paterson in May, this bill broadens statutory definitions of abuse and neglect applicable to children living in residential facilities. This will help ensure that certain acts – such as shoving, kicking or biting – or omissions committed by residential caretakers will be automatically characterized as abuse or neglect, even if a child does not sustain obvious, serious physical injury. The bill also clarifies in statute the actions to be taken in response to reports of abuse or neglect in residential settings, requiring referrals to law enforcement when appropriate, corrective action, and follow-up reporting by providers and state licensing agencies where there appears to be statutory or regulatory violations.

The residential programs affected by the bill are operated or licensed by the Office of Children and Family Services, the State Education Department, the Office of Mental Retardation and Developmental Disabilities (OMRDD), and the Office of Mental Health (OMH). Under the agreed-upon legislation, programs operated or overseen by the New York State Office of Alcoholism and Substance Abuse Services (OASAS), which are not currently covered under existing law, will be included as well.

Extension of Jonathan’s Law

The Governor and legislative leaders also agreed to extend Jonathan’s Law, originally enacted in May 2007, to make retroactive requests for records available until December 31, 2010. This law expanded access to records related to incidents and allegations involving individuals residing in residential mental hygiene facilities. Retroactive access to records created after January 1, 2003 and before the enactment of Jonathan’s Law, had been available until December 31, 2007.

The Right to a Nutritious Diet and Banning the Withholding of Food

Agreement was also reached on legislation that would establish the right to a balanced and nutritious diet for individuals receiving mental hygiene services. The legislation also bans the withholding of food, drink or nourishment to such individuals for the purposes of behavior modification or response conditioning. The withholding of food or hydration will constitute inadequate care, absent explicit authorization from an individual’s approved service plan, which is formulated in conjunction with an individual’s service provider, the individual him/herself and the individual’s parent/guardian (if appropriate).

Workgroup Recommendations on Work Hours for Direct Care Employees

Finally, the agreement included a bill that creates a workgroup to examine issues related to existing work hours for direct care employees in facilities operated or licensed by OMRDD, OMH and OASAS. This workgroup would actively seek out input from families, community-based organizations and other caregivers and experts, as well as representatives of labor unions that represent direct care employees. The workgroup will submit a report to the Governor and the Legislature by December 15, 2008, making recommendations on appropriate work hours for direct care employees, including specific limitations on the number of consecutive hours and limitations on overtime.

Senate Majority Leader Joseph L. Bruno: “When parents place their children in residential care facilities, they have every right to demand they are well-protected and cared for. Currently, there are different standards of protection for children in residential care – this legislation will enhance those protections to make sure our children are receiving the quality of care they need, and ensure that reports of neglect and abuse are responded to and handled properly. I commend Senator Morahan for his continued leadership on mental health issues, and thank the Assembly and Governor for partnering with us on this important legislation.”

Assembly Speaker Sheldon Silver said: “When it comes to the health, safety and well-being of New Yorkers receiving care in OMH, OMRDD and OASAS residential treatment programs, we have a moral obligation to ensure residents are receiving the best possible care. This legislative package seeks to bring about much needed reform to New York’s system of care by establishing consistent standards, clarifying procedures and ensuring accountability and transparency in facilities throughout the state.”

Senate Minority Leader Malcolm A. Smith said: “Expanding the provisions of Jonathan's Law by providing additional training of staff at residential facilities will help ensure that children in these facilities will not be abused or neglected. The decision to place a child into a residential facility for care is often a gut-wrenching experience for parents. However, once that decision is made they should feel secure in knowing their child is receiving the best care and will not be harmed. This legislation explicitly defines the terms for abuse charges while toughening existing laws giving the state additional authority when abuses are reported.”

Senator Thomas P. Morahan, Chair of the Senate Committee on Mental Health and Developmental Disabilities, said: “The children of our state must be protected from abuse and neglect regardless of where they reside. This legislation will ensure that children in facilities operated or licensed by OCFS, SED, OMH, OMRDD and OASAS are cared for in a safe and appropriate manner by establishing an enhanced set of protections for children who have been entrusted to the care and/or oversight of the State.”

Senator John Sampson, Ranking Member of the Senate Health Committee, said: “I understand firsthand the significance of the bill to provide an alternative to institutionalizing seriously ill children. I commend Governor Paterson for his continued support of the mentally and physically challenged communities and his advocacy to expand upon services and programs available to them."

Assembly Member Tim Gordon said: “The agreements we have reached will help to ensure residents of these facilities are treated with the utmost care and respect – something every person deserves. It is my hope that the families of the disabled will be able to breathe a bit easier knowing that these new safeguards are in place to protect their loved ones while they are out of their own care.”

Michael F. Hogan, PhD, Commissioner of the New York State Office of Mental Health said: "The agreements announced today will strengthen the rights of people who receive care, and their families. These agreements can also help improve the quality of care. In regard to the study of direct care employee hours, the constructive involvement of stakeholder groups including service recipients, family members, advocates and caregivers can help enhance a system of quality mental health care that supports recovery."