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NYS Comptroller

THOMAS P. DiNAPOLI

NEWS from the Office of the New York State Comptroller

Contact: Press Office 518-474-4015

DiNapoli: State Needs to Improve Compliance with Jonathan's Law

Second Audit by DiNapoli's Office Finds Incidents of Neglect and Abuse in Facilities Not Always Reported to Parents


November 18, 2019

The state Office for People With Developmental Disabilities (OPWDD) is not ensuring parents and guardians are properly notified of incidents of abuse and neglect in programs it oversees as required under Jonathan’s Law, according to an audit released today by State Comptroller Thomas P. DiNapoli.

In July, DiNapoli released an audit of the state Office of Mental Health that included similar findings at that agency’s facilities.

“The state must do everything it can to protect individuals with disabilities in their care,” DiNapoli said. “Jonathan’s Law was created to make sure incidents of abuse and neglect are properly addressed and families are told of what occurred. This law can’t work if state agencies aren’t fully complying with the law’s requirements. This is the second state agency my auditors have found that is failing to meet their obligations.”

In February 2007, Jonathan Carey, a 13-year-old non-verbal autistic and developmentally disabled boy, died while in the care of a state facility. Before Jonathan’s tragic death, his parents had attempted multiple times to obtain information concerning several unexplained injuries, unauthorized changes in treatment and suspected abuse and neglect.

In May 2007, Jonathan’s Law was enacted to expand parents’, spouses’, guardians’, and other qualified persons’ access to records relating to incidents involving family members residing in facilities operated, licensed or certified by the OPWDD and other state agencies.

Reportable incidents under Jonathan’s Law involve abuse (physical, sexual or psychological) or neglect, as well as incidents that may result in or have the potential to result in harm to the health, safety or welfare of a patient.

OPWDD operates 13 Developmental Disabilities State Operations (DDSO) offices in six regions across the state to oversee over 1,100 certified programs. OPWDD also regulates, certifies, sponsors, and oversees approximately 650 community-based service providers subject to Jonathan’s Law requirements.

While the state- and community-based programs have established practices for notifying qualified persons within the required 24 hours, 11 percent of the 295 substantiated incidents reviewed by DiNapoli’s auditors lacked support that the required notification was made and 7 percent lacked support that a report had been issued within the required 10 days.

Auditors also found that programs under OPWDD supervision do not always provide records to parents or guardians when requested or are not providing them within 21 days of the request or the conclusion of the investigation, whichever is later, as required.

In a sample of 63 record requests, 32 percent (20) were either not provided on time or not provided at all. Several delays occurred because facilities waited until verification of the completeness of Justice Center investigations before fulfilling the request, contrary to OPWDD’s regulations. In addition, facilities provided inconsistent information – with some offering more detail than others – to parents or guardians in response to record requests.

DiNapoli recommended OPWDD provide updated guidance to programs on their responsibilities related to Jonathan’s Law requirements – including clear and consistent implementation procedures – and require them to follow procedures.

He also recommended that OPWDD address several issues the audit identified with the agency’s incident reporting system, where facilities record and report incidents and Jonathan’s Law activity data, to improve its usefulness as a monitoring and management tool.

OPWDD generally agreed with the audit’s recommendations, but characterized its findings and observations as overstated.

The agency’s response is included in the audit.

Read the report, or go to: https://www.osc.state.ny.us/audits/allaudits/093020/sga-2020-17s67.pdf

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