April 22, 2012
Cuomo Administration, in Shift, Agrees to Whistleblower on Disabilities Panel
By DANNY HAKIM, NY TIMES
LINK

The Cuomo administration pressed the State Senate to disinvite a whistleblower from a panel discussion on developmental disabilities being held at the Capitol on Monday, state officials said over the weekend.

But after a query from The New York Times on Sunday, the Cuomo administration reversed itself, though not without protest. The administration agreed to let a top official appear on the panel with the whistleblower, but was sharply critical of what it called “sensationalized press coverage” and the biases of some of the disabilities advocates on the panel, without naming names.

An administration spokesman also called the whole event — a Senate-sponsored panel discussion on abuses involving people with developmental disabilities — “a public relations effort.”

The whistleblower, Jeffrey Monsour, is a state worker who has been an outspoken critic of his employer, the state Office for People With Developmental Disabilities, and the agency’s handling of reports of abuse, neglect and a variety of other issues.

Courtney Burke, the commissioner of the disabilities office, is scheduled to appear on the panel, and on Friday her office asked that Mr. Monsour not be allowed to take part. Ms. Burke was appointed by Gov. Andrew M. Cuomo more than a year ago to reform the agency amid a series of articles in The New York Times showing widespread problems of abuse, neglect and financial mismanagement.

She has said that changing the culture of the agency is a top priority. Yet some critics believe the agency remains inhospitable to employees who discuss its problems, and that an initial flurry of reform efforts by the Cuomo administration has stalled.

On Sunday night, a spokesman for Ms. Burke, Travis Proulx, reversed the agency’s position in an e-mail to the Senate, but took aim at the panel discussion itself.

“While we think this is an inappropriate venue that will serve more as a public relations effort to feed sensationalized press coverage of these issues given the oft-stated bias of some of the participants, and don’t think it will be productive substantively, Commissioner Burke will attend despite Mr. Monsour’s participation,” Mr. Proulx wrote.

The e-mail’s tone reflected the stridency that has characterized a number of past statements from Mr. Cuomo’s press office.

Michael Carey, an advocate who will appear on the panel and whose son was killed in state care, was taken aback by the administration’s remarks.

“I can’t believe their nerve and gall,” he said. “The purpose of this round-table is to discuss measures to prevent abuse and neglect of innocent and vulnerable children and adults with disabilities,” adding, “it’s going to reveal who really wants to prevent abuse and neglect and who does not.”

Michael Veitch, a spokesman for Senator Roy J. McDonald, an upstate Republican who organized the panel, said early Sunday that the commissioner’s office had asked that Mr. Monsour “not participate in the roundtable,” adding, “it was done as a courtesy to the commissioner.”

But in the early evening, Mr. Veitch said that Mr. Monsour would be reinvited.

The panel will discuss how to define abuse and neglect, and how to prevent abuse and improve safety conditions. Several other panelists who will appear represent service providers that are regulated by the disabilities agency.

Mr. Monsour, 51, has long been a gadfly within the agency, which runs or regulates thousands of group homes and institutions. He has filed many Freedom of Information requests examining the agency’s practices, notably helping expose that group homes were conducting fraudulent fire drills.

Last year, the state pursued a disciplinary case against him that appeared to be out of step with its general practices. State officials sought a four-week suspension against Mr. Monsour after he and a co-worker had an argument. The penalty exceeded those imposed on many employees who had committed acts of abuse or neglect against people with developmental disabilities, and the case was complicated by the fact that the co-worker involved had previously been fired for cause. (The employee was later reinstated.)

Shortly after The Times highlighted the case, the state settled for a letter of reprimand.

Mr. Monsour was invited to the hearing last Monday, and then disinvited on Friday. He said early Sunday night that he had not heard from the Senate. He added that he was disturbed by Mr. Proulx’s statement and was not sure whether he would go if reinvited.

“Commissioner Burke has sent out all sorts of things asking the staff to correspond with her about their ideas and concerns,” he said, adding that the tenor of the note was “totally the opposite of what they’ve been saying.”

He said he believed little had changed at the agency.

“As soon as you speak out about abuse and potential problems that you see within the system, they find a way to put you on administrative leave,” he said, adding, “They make it very difficult for the good staff, and there is a lot of great staff.”

March 22, 2012
State Faults Care for the Disabled
By DANNY HAKIM, NY TIMES
LINK

ALBANY — Nearly 300,000 disabled and mentally ill New Yorkers face a “needless risk of harm” because of conflicting regulations, a lack of oversight and even disagreements over what constitutes abuse, according to a draft state report obtained by The New York Times.

In 2010, the number of abuse accusations at large institutions overseen by the State Office for People With Developmental Disabilities outnumbered the beds in those facilities — a sign of trouble in buildings where many of the state’s most vulnerable residents are housed, and where the state has repeatedly had trouble with abusive employees and unexplained injuries and deaths among residents, according to the report.

The report was commissioned by Gov. Andrew M. Cuomo in response to a Times investigation last year into problems of abuse, neglect and fraud in state homes and institutions for the developmentally disabled. A draft of the report began circulating in October, but has not yet been released to the public; people frustrated by the delay separately provided to The Times an executive summary and a bound copy drafted in December.

Problems were found at all six state agencies that provide residential service to children and adults with an array of disabilities, mental illnesses or other issues that qualify them to receive specialized care by the state.

According to the report, a regulatory maze has complicated and in some cases constrained the state’s response to claims of abuse. At one agency, the police are summoned if “there is reason to believe that a crime has been committed,” while another agency does so only if a potential felony has been committed. A third agency turns to law enforcement only if a local district attorney has “indicated a prior interest,” the report said.

The Cuomo administration has expressed concern about issues identified in The Times and addressed by the report. Over the past year, the governor has forced the resignations of the commissioner of the Office for People With Developmental Disabilities and the top official at the State Commission on Quality of Care and Advocacy for Persons With Disabilities, and he has moved to fire 130 employees involved in accusations of serious episodes of abuse or neglect.

The administration has also taken a number of steps to shore up oversight and care of the developmentally disabled, putting in place new rules for drug testing and criminal background checks of staff members who work with the vulnerable.

“The draft report was the subject of a cabinet and press briefing in October, and we are currently working on a transformational reform plan based on the report that will be announced soon,” said Richard Bamberger, the governor’s communications director.

But some advocates and lawmakers have been frustrated with what they see as the slow pace of progress. Michael Carey, an advocate for the developmentally disabled whose son with autism died in state care in 2007, said he was concerned that the governor was waiting to address the issue until after legislative budget negotiations, which could make it more difficult to find money for new programs.

“It’s gross negligence that that report has not come out, and it’s beyond frustrating,” Mr. Carey said, adding, “The reforms to date are baby steps towards monster problems.” And Senator Roy J. McDonald, the chairman of the State Senate’s mental health committee, sent a letter this month to the governor urging him to turn over the report “so that we can begin working towards enacting long overdue protections and safeguards.”

The Times last year identified numerous problems with the state’s care for the developmentally disabled: only 5 percent of abuse accusations were forwarded to law enforcement, and employees who physically or sexually abused the disabled were often transferred among group homes instead of being fired.

Ten percent of deaths of the developmentally disabled in state care were listed in a state database as having occurring from unknown causes, suggesting widespread failures in efforts to determine why people die in state care.

At the same time, executives at some nonprofit organizations hired by the state to care for the disabled have been earning seven-figure annual compensation packages and taking a wide range of Medicaid-financed perks for themselves and their friends and families.

The state report, a 105-page document called “The Measure of a Society: Protection of Vulnerable Persons in Residential Facilities Against Abuse and Neglect,” critiques the practices at six state agencies that oversee residential programs for vulnerable populations, at an annual cost of $17.9 billion. The report’s principal author was Clarence Sundram, who was hired by Mr. Cuomo a year ago as a special adviser on vulnerable people.
Clarence Sundram
Mr. Sundram had been named by Gov. Hugh L. Carey to lead the Commission on Quality of Care, and he ran the commission for two decades until he left amid a disagreement with the administration of Gov. George E. Pataki.

In his report, Mr. Sundram found inconsistent data about accusations of abuse and neglect at state-run facilities. Some agencies train their investigators; others do not. Evidentiary standards vary. And definitions of abuse or neglect vary depending upon which agency has oversight.

The report found that residential schools run by the Education Department did not track abuse claims, while the State Health Department had “no reliable data” for accusations at its homes for mentally ill adults. At the large institutions overseen by the Office for People With Developmental Disabilities, the report found 119.68 abuse claims for every 100 beds.

The homes monitored by the Health Department have been a particular concern for a decade, since a series of articles in The Times in 2002 called attention to abuse there. Nonetheless, the report found, the department has few standards for investigating its homes: the agency’s regulations “do not directly address an operator’s responsibility to investigate incidents or allegations of abuse,” the report concluded.

The Office of Children and Family Services also has few standards to determine when and how to investigate abuse accusations at some facilities. And the Education Department does little to oversee its programs for the disabled, which include two residential schools — one for the deaf and one for the blind — with a total of 200 beds, as well as educational programs at nonprofit residential schools serving 2,500 students.

The department does not require schools to have incident-reporting or investigation policies, and does not require abuse and neglect investigations, relying on the Office of Children and Family Services to conduct child-abuse inquiries.

The Education Department, which reports to the State Board of Regents and not to the governor, said the Sundram report highlighted “the need for systemwide reform”

The department “supports change that would enhance protections for vulnerable children and adults in residential settings across New York State and in out-of-state facilities,” said its spokesman, Tom Dunn.

The report recommended several changes to state laws and regulations in an effort to prevent and better respond to abuse of the vulnerable. But it continues to rely to a large extent on self-policing, which could be a point of criticism among advocates.

“These human services systems did not arrive overnight to the point at which they find themselves, nor will they get to a dramatically better level of performance immediately,” the report said. “But there is a need to begin the process of reform with a sense of urgency.”

One proposed law would require the establishment of a 24-hour hot line to report abuse of adults in state care — the state already has a child-abuse hot line — as well as the creation of a single entity to review abuse accusations regardless of the agency involved. Another proposed law would bar people with convictions for violent felonies and sex crimes from jobs with state agencies, or with state-contracted nonprofits groups, that provide care for the vulnerable.

Because the current charge often filed against those accused of abuse — endangering the welfare of an incompetent or physically disabled person — is a misdemeanor, the report also proposes creating new offenses with tougher penalties to prosecute such crimes.

During arbitration proceedings against employees accused of abuse, a representative of the abused vulnerable person should also be present, the report suggests. And, the report says, the state should follow through with a promise to establish specific penalties for offenses by abusive employees, a concept that the Civil Service Employees Association agreed to during labor negotiations months ago.

New York State Is Held Accountable For Abusing People With Disabilities In Small Group Homes

August 21, 2011
N.Y. Still Pursues Case Against Whistle-Blower
By DANNY HAKIM, NYTIMES
LINK

ALBANY — The Cuomo administration is continuing to pursue a two-year-old disciplinary case against Jeffrey Monsour, a state employee at the Office for People With Developmental Disabilities who has been an outspoken critic of the agency’s management.

Mr. Monsour, 50, a direct-care worker, is accused of getting into an argument with a co-worker in front of a resident in 2009. The state is seeking a four-week suspension, a penalty that exceeds those imposed on many employees who committed acts of abuse or neglect against developmentally disabled people.

Mr. Monsour has long been a gadfly within the office, which runs more than 1,000 group homes and institutions. Over the years, he has filed many Freedom of Information requests examining its practices, annoying agency officials, and he sees the case being brought against him as their latest attempt at retribution.

The case highlights the agency’s haphazard approach to discipline.

Mr. Monsour was written about by The New York Times in March; that article told of a state worker who, while being investigated by the police in a case of sexual assault against a severely disabled resident, returned to his job without penalty, despite witness testimony and DNA evidence implicating the employee. That worker was eventually convicted of endangering an incompetent person, a charge stemming from the assault case, and was jailed. Another worker described in the article racked up multiple offenses, including twice punching residents in the face, before losing his job.

This year, Gov. Andrew M. Cuomo forced out the agency’s commissioner, installing Courtney Burke, a policy expert, in the position, and he has asked Clarence J. Sundram, a former regulator, to lead a broad review of the agency’s practices. Seeking to add predictability to the disciplinary system, the administration recently negotiated a plan with the Civil Service Employees Association to create a matrix of punishments for various offenses.

But it has continued to pursue the case against Mr. Monsour.

Last month, after prodding by The Times and Mr. Monsour’s lawyer, the administration took the unusual step of turning over nearly 200 pages of transcripts from Mr. Monsour’s arbitration proceedings, offering a rare window into a continuing disciplinary case involving a state employee.

According to the documents, the argument, which was between Mr. Monsour and his co-worker Meghan Hotte, took place in 2009 at a group home in Lake George. Both Mr. Monsour and Ms. Hotte provided the residents with primary care, and the home they were working in at the time lacked a permanent supervisor to issue assignments, a point of tension that set off the argument.

Included among the documents is the testimony of the resident who witnessed the argument and who was well-spoken enough to testify.

The resident described being upset by the argument, blamed both workers and was taken to the hospital for a psychological evaluation the next day. But the resident also considered Mr. Monsour a friend and said Ms. Hotte was cursing during the argument while Mr. Monsour was not. The resident also said Ms. Hotte was yelling more loudly.

Ms. Hotte has had disciplinary problems before. The Office for People With Developmental Disabilities previously fired her for time and attendance violations; she was subsequently rehired.

The agency has since said it would move to stop rehiring employees who had been fired.

Mr. Monsour, an employee since 1999, has no prior disciplinary offenses on his record.

“I did everything I could that day to resolve the situation as fast as I could,” Mr. Monsour said in an interview, adding that he had asked his supervisors to issue assignments to avoid a problem.

“Nobody would be getting into trouble if management was out doing their job,” he said. “That’s their job, to make assignments.”

Ms. Burke, the new commissioner, declined to be interviewed.

Travis Proulx, a spokesman, said the agency was “not permitted to compromise the rights or privacy of any employee in arbitration by commenting on a case that is ongoing.”

A woman who answered the phone at Ms. Hotte’s house said Ms. Hotte would not comment. The agency sought a four-week suspension for Ms. Hotte but settled for a one-week suspension with the possibility of a second week if she were to commit another, similar offense.

Mr. Monsour has paid $800 so far to cover arbitration costs. He has forgone the representation of his union during arbitration and is being represented pro bono by Robert W. Sadowski, a former federal prosecutor.

Mr. Sadowski called the case “a colossal waste of the taxpayers’ money.”

“The system is so obviously broken,” he said. “The resources could be used in a far more beneficial way than retaliating against someone who is only trying to do the right thing.”

Mr. Monsour’s clashes with agency management go back to 2004, when he said he refused to falsify fire evacuation records. Since then, he has had a number of run-ins with officials.

In an evaluation in 2007, he was described as “not a team player” because he called 911 to seek outside help after a resident wandered off and ran through traffic. The agency later redacted the reference.

That year, he was questioned at length after he allowed a resident to share a small amount of eggplant Parmesan with his elderly mother, who was visiting the resident at his state-run home.

“They haven’t been able to discipline me thus far because I haven’t done anything wrong, but they’ve made several attempts,” Mr. Monsour said. “It’s retaliation.”

NY TIMES' Series "Abused and Used"

New York State Draft Report On Abuse