[NYAPRS Enews] NYT Says NYS Lags in Firing, Prosceuting Abusive Workers

[Harvey Rosenthal]

New York State Lags on Firing Workers Who Abuse Disabled Patients
By Danny Hakim  New York Times  August 8, 2013

ALBANY - One state worker bit a patient's ear.
Another sent threatening text messages to a female co-worker, according to state records, including one that said: "I'm gonna gut you like a fish blondie. Don't even try to call the police."
A third, a nurse, left a patient naked and bleeding from a head injury<http://health.nytimes.com/health/guides/injury/head-injury/overview.html?inline=nyt-classifier> on a bathroom floor, soaking in his own feces.
And a fourth knocked a group home resident out of a chair, hit the resident on the back of the head and squirted water from a bottle in the resident's face.
All of these state employees care for people with developmental disabilities or mental illnesses. They were all found culpable of wrongdoing in internal disciplinary proceedings. But none were fired.

Two and a half years ago, The New York Times published an article<http://www.nytimes.com/2011/03/13/nyregion/13homes.html> about abusive employees who worked for the state, detailing how few employees were fired, even after the state recommended that they lose their jobs, because of weaknesses in the arbitration process, the permissive attitude of state officials and the aggressive stance of public sector labor unions - particularly the Civil Service Employees Association<https://cseany.org/>.

Gov. Andrew M. Cuomo<http://topics.nytimes.com/top/reference/timestopics/people/c/andrew_m_cuomo/index.html?inline=nyt-per> promised to change all this. But much has not changed.

A review by The Times found that the state had made no discernible progress in firing abusive and derelict workers. Not counting workers ultimately cleared of all disciplinary charges, the state still manages to fire only about a quarter of those recommended for job termination, a rate that has not budged.

One reason for the low dismissal rate is the wide latitude given to arbitrators who decide many cases, and who have a history of siding with the union. In 2011, the Cuomo administration announced a framework agreement with the union to create a table of mandatory punishments for various offenses, which would take many decisions out of arbitrators' hands. But two years later, the sides have yet to reach a final agreement.

Mr. Cuomo has put much stock in a new state bureaucracy he championed, called the Justice Center for the Protection of People With Special Needs<http://www.justicecenter.ny.gov/>, which will oversee and, it is hoped, improve enforcement of crimes against vulnerable populations. But his appointee to lead it, Jeffrey Wise, has alarmed some advocates for disabled people: Mr. Wise is a longtime spokesman and lobbyist for private disabled-care providers, who are often as troubled as the state.

Mr. Wise even lobbied against Jonathan's Law, the legislation that forced the state to start disclosing abuse reports to parents, named after a teenager with autism<http://health.nytimes.com/health/guides/disease/autism/overview.html?inline=nyt-classifier> who died after being asphyxiated by a state worker.
Assemblyman Harvey Weisenberg, a Long Island Democrat who co-sponsored Jonathan's Law, called Mr. Wise's appointment "sort of frightening."

"It upsets me that somebody that did lobby against Jonathan's Law would be put in this position," said Mr. Weisenberg, whose severely disabled son<http://www.nytimes.com/2012/10/01/nyregion/assemblyman-to-file-suit-charging-abuse-of-his-disabled-son.html> has also been a victim of abuse. "I hope that in reality he will learn and understand the needs of those that are impacted, rather than the needs of the agencies and the people in control."

Mr. Wise said in an interview that he would be independent.

"I have absolutely no compunction or reservations about pursuing actions against state agencies or voluntary providers," he said. "Abuse is abuse, no matter who's doing it."

The 2011 article, based on employee disciplinary records obtained through the state's Freedom of Information Law, found that the state fired only about 23 percent of the workers that had been recommended for job termination by their supervisors. Cases in which the worker was ultimately cleared of all charges were not included in the analysis. The article focused on workers employed by the State Office for People With Developmental Disabilities<http://www.opwdd.ny.gov/>.

The Times conducted a new review this year by looking at 227 cases decided since the beginning of 2012 in which the state had sought to fire an offending employee. The numbers remain the same. Only 23 percent of the workers recommended for dismissal by the state actually ended up being fired.

The latest review also included a second agency, the State Office of Mental Health<http://www.omh.ny.gov/>, whose workers care for the mentally ill. The numbers were hardly different there. About 27 percent of 104 workers recommended for dismissal actually were fired, according to a review of cases at that agency. In all, The Times reviewed about 4,000 pages of records.

A recommendation to fire an employee occurs following an internal disciplinary inquiry into allegations made against the worker. The employee is represented by the union and has the right to contest the firing before an arbitrator, who can uphold the charges, reject some or all of them, or impose a lesser punishment. In some cases, the state and union will settle on a punishment before the arbitrator rules.

Administration officials point the finger at the union. They said that the governor's office had taken far more cases to arbitration than previous administrations, rather than reaching settlements for lesser penalties, but that they were hamstrung by an arbitration process that was part of the collective bargaining agreement.
They also say that the union has held up negotiations over abuse penalties by tying them to an unrelated dispute over a cost-savings plan the administration negotiated to trim health care expenses.

Stephen Madarasz, a spokesman for the Civil Service Employees Association, also known by its acronym CSEA, did not confirm or deny the claim, saying, "The linkage between the two issues you referenced is that both are unfinished business from the 2011 contract negotiations."

A draft union proposal obtained by The Times also shows that the union wants to continue to give arbitrators wide leverage, and would not require firing even many of those found to have committed inappropriate sexual conduct or physical abuse<http://health.nytimes.com/health/guides/disease/child-abuse-physical/overview.html?inline=nyt-classifier>.

"CSEA has insisted that the only proposal they will accept is a watered-down version of justice," said Melissa DeRosa, the governor's communications director, adding, "This administration has always and will always refuse to compromise when it comes to protecting the special-needs community from abusive workers."

Mr. Madarasz said: "With regard to the issue of arbitrators having discretion on disciplinary penalties, it is a practical reality for resolving cases. Most cases have nuance."

He also said that many workers who had been accused were ultimately found innocent. However, the 331 cases did not include any in which the worker was cleared by the arbitrator of all charges.

The union, which represents workers in most of the proceedings, declined to make any of the workers available to rebut the state's accusations.

Caring for people with developmental or mental disabilities is a difficult job - residents can range from fragile and incapacitated to unruly and potentially aggressive. But episodes involving workers who were allowed to stay on the job covered almost every imaginable type of misconduct.

One worker showed up at work drunk, still drinking, and yelled at co-workers, "I'm intoxicated," using an expletive. Another was arrested after being accused of stealing a patient's money. Another kicked a patient while he was on the floor. Another insulted a co-worker with a slur about Puerto Ricans, then punched him, then threatened to "bust a cap in his ass" after work. Another trolled pornographic Web sites for hours on state computers, day after day, instead of doing his job.

None were fired.

Discipline can also seem random. In two cases resolved last year, one employee who referred to himself on Facebook as a "tard guard" and a colleague as a "bitch tard lover" was forced to resign, but the employee who wrote "here's to beating retards" on Facebook was not.

Those who are not fired faced a range of lesser penalties, from suspensions to the loss of vacation time or a letter of reprimand. The employee who was accused of biting a patient's ear, for example, initially said she was innocent but eventually chose to settle before her case reached arbitration, agreeing to a one-year probation that meant she would most likely be fired for a further offense. There was no indication in the records that the matter was referred to the police.

Although the Cuomo administration has not been more successful in firing abusive employees, it has taken other steps to try to protect those in supervised care. A new law will force private providers to comply with the Freedom of Information Law, a critical step as the state continues to privatize much of the system. The Justice Center has modestly increased the number of state investigators, adding 40 more agents dedicated to overseeing a vulnerable population that numbers in the hundreds of thousands. And after prodding by the federal government, a new outside nonprofit group is being set up to monitor the state's care.

Earlier this year, Mr. Cuomo, a Democrat, said, "We will work around the clock to safeguard the rights and protections of our most vulnerable citizens."

Michael Carey<http://www.nytimes.com/2011/06/06/nyregion/boys-death-highlights-crisis-in-homes-for-disabled.html?pagewanted=all>, an advocate and the father of Jonathan Carey, whose death led to Jonathan's Law, has been one of the Cuomo administration's most strident critics. He has long been troubled that abuse reports are not made directly to the police, instead of filtered through a state bureaucracy. "It's a clear violation of these individuals' rights," he said. He also opposed a move by the Cuomo administration that increased the standard of proof required in some child abuse cases in an effort to make the standard more consistent across a wider range of investigations.

Mr. Carey said tangible ideas intended to prevent abuse, like installing cameras in group homes, were also being ignored.

"Rampant abuse and neglect goes on," he said. "There has not been anything significant done to stop it."

http://www.nytimes.com/2013/08/09/nyregion/state-lagging-on-dismissals-in-abuse-cases.html?ref=nyregion&_r=0
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