NY agency to protect the disabled rarely brings charges

AP News
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Posted: Oct 28, 2015 4:50 PM
NY agency to protect the disabled rarely brings charges

SCHENECTADY, N.Y. (AP) — In a video he made with his PlayStation, a 12-year-old developmentally disabled boy in a group home points to his swollen right eye and says, "Mom, this is what it looks like. ... He slammed me."

His camera keeps rolling as his adult caretakers enter his room, where they can be heard but not seen on the video. One calls the boy "stupid ass," and another warns: "I'm gonna kill a kid and you might be the one I kill. ... You want me to f------ hurt you, boy?"

The recording ends with the boy looking again into the camera, on the verge of tears, whispering, "Mom ... I'm scared."

That was last year, and to date, no one has been prosecuted. New York's Justice Center, the state agency created to hold caretakers accountable, investigated and said it substantiated allegations the boy had been physically and psychologically abused. But a judge refused to sign off on charges.

In fact, an Associated Press examination of misconduct complaints against caretakers in New York found that only a small percentage — a disturbingly small one, according to some activists — are prosecuted.

Since the start of 2014, the Justice Center — established to protect the 1 million disabled, addicted, mentally ill and young people getting state care — has received more than 25,000 allegations of abuse and neglect by caretakers and substantiated about 7,000 of them. But just 169 cases, or less than 2.5 percent, have resulted in criminal charges.

Of the 132 allegations that involved deaths, the center has substantiated 34 cases so far but has prosecuted only one.

The figures, obtained by the AP from the Justice Center and through Freedom of Information requests, have some critics questioning whether the agency is fulfilling its mandate to obtain justice for those who often can't speak up for themselves.

"That's not a very good record of success," said Harvey Weisenberg, a former state assemblyman who co-sponsored the legislation creating the Justice Center but has been disappointed by the way it has turned out.

The Justice Center's executive director, Jeff Wise, defended the agency's record.

"The Justice Center directly investigates or reviews the investigations of all allegations of abuse and neglect and when supported by the evidence holds staff accountable for their actions," he said in a statement. But he said many instances of misconduct "fall short of a criminal offense."

For example, inadequately supervising a patient, improperly restraining someone, failing to make sure a person is properly cleaned, or not giving medication on time can constitute abuse or neglect but is not necessarily a crime.

The Justice Center said about 13 percent of the substantiated allegations were for physical abuse, or about 900 altogether; 1 percent for sexual abuse; and 61 percent for neglect, mostly for improper supervision.

Justice Center officials also said that the administrative standard of proof they use to substantiate misconduct allegations — a preponderance of the evidence — is lower than the standard that must be met to convict someone in court: beyond a reasonable doubt.

And they said they have meted out punishment short of prosecution, such as putting 163 people on a hiring blacklist because of serious or repeated acts of mistreatment and requiring more than 20,000 corrective actions by state and nonprofit providers.

National experts say New York is not the only state with relatively low prosecutions in such cases.

"These cases, unfortunately, are rarely prosecuted," said Kathleen Quinn, executive director of the National Adult Protective Services Association. "These are people that are invisible in the larger world."

Experts note that mistreatment allegations can be hard to prove because caretakers are reluctant to testify against each other and because cases often rely on victims with intellectual or physical disabilities that don't make for good witnesses.

"They're not all winnable," said Nancy Alterio, executive director of a similar oversight agency in Massachusetts, the Disabled Persons Protection Commission. "That's one of the challenges — when they report, they're not believed."

Nevertheless, the Massachusetts agency reported 155 prosecutions in fiscal 2014, more than New York's 95 for a similar period, in a state with less than one-third the population.

Alterio said her agency was able to achieve that through agreements with the state's 11 district attorneys. And she said that prosecuting difficult-to-prove cases can at least put suspected homes and caretakers on notice that they are being watched and let victims know they're believed.

Mary Lee Fay, executive director of the National Association of State Directors of Developmental Disabilities Services, said New York's real issue is: "What are they doing to increase those numbers? How are they working with district attorneys and others where they really can deliver prosecutions?"

The Justice Center for the Protection of People With Special Needs was created in mid-2013, pushed by Gov. Andrew Cuomo following a New York Times series on horrific abuse cases that had been handled internally without charges. "We will not allow people in the care of New York to be abused. Period," the governor said at the time.

Among the tools at the center's disposal: a statewide hotline and a staff of 429, including investigators and seven prosecutors empowered to bring criminal cases against caretakers, even when local prosecutors decline.

While Justice Center officials refused for privacy reasons to discuss the 12-year-old boy or any other cases that have gone unprosecuted, they have announced charges they did file.

They include a Westchester County mental health counselor charged with raping a client, and four workers from a Long Island group home accused of encouraging two mentally disabled men to fight for their amusement.

In the lone prosecuted case that involved a death, a nurse admitted sleeping on the job at a group home in suburban Syracuse, leading to the death of a 25-year-old disabled man who received inadequate oxygen overnight. Tanya Lemon pleaded guilty last year to endangering the welfare of a disabled person, lost her nursing license and was sentenced to 90 days in jail.

Michael Carey, an advocate for the disabled even before his autistic son was smothered to death by a caretaker in 2007, accused the Justice Center of minimizing cases to protect the state from lawsuits. He criticized the finding that just one person was charged in connection with a death.

"Isn't it suspicious?" Carey asked. "Where are the other negligent deaths if this Justice Center was actually just?"

Among those who say they are still waiting for justice is the mother of the boy who made the video on his PlayStation at the Northeast Parent and Child Society group home in Schenectady.

The video is now part of a federal lawsuit brought by the mother that contends he was assaulted repeatedly over five days by the staff. In one instance, he was choked with the power cord to the very game he used to make the video, according to the lawsuit.

In letters to the boy's mother a year later, the Justice Center said it substantiated the allegation that a staff member restrained the boy with excessive force, "which included elbowing and/or striking him on his face, which resulted in a swollen and/or bruised eye."

The center didn't conclude the boy was throttled with the electrical cord, but did find that a staff member improperly restrained him, including putting him "in a one-person prone restraint while he had a cord around his neck."

Schenectady County District Attorney Robert Carney said city police twice drafted a misdemeanor warrant in the case, alleging endangerment of an incompetent person. City Court Judge Robert Hoffman declined to sign either one, the second accompanied by the video, finding the case was "inconclusive," the prosecutor said.

"That pretty much ended it," Carney said.

Calls to the judge were not returned.

The mother, who is not identified by name in the lawsuit and spoke on condition of anonymity to protect the identity of her underage son, is seeking unspecified damages on behalf of the boy, who she said has been diagnosed with schizophrenia and autism.

Her attorney, Robert Santoriella, said the beatings continued days after the boy quietly slipped his mother the PlayStation with the video, even after she called the Justice Center and the Schenectady police and a local TV station had aired the footage.

The mother said the boy, identified in court papers only as R.W., has been moved to another facility and hasn't been the same since the beatings. Once active and playful, he now just stares out the window for hours at a time, she said.

A telephone listing for the man listed in court papers as the boy's chief abuser could not be found. Staff members at the home said he doesn't work there anymore.

Eugene White, spokesman for Northern Rivers Family Service, which runs the home, said the allegations are "undoubtedly disturbing," don't reflect the nonprofit organization's culture, and were "thoroughly investigated" by the Justice Center. He would not give specifics.

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This has been corrected to show that the warrant was drafted by police, not a prosecutor.