June 4, 2012Honorable Sheldon Silver, SpeakerNew York State AssemblyLegislative Office Bldg. – Room 932Albany, New YorkDear Speaker Silver: The Governor’s proposed “Protection of People with Special NeedsAct” has rightly focused public attention on the need to reform the systemof delivering residential and related services to people with disabilities. The Governor is shining a bright light on the abuse and neglect thatoccurs in dark shadows behind closed doors. He rightly says that justicedelayed is justice denied for people with disabilities. The public is cynical because so many past “reforms” made changebut not progress for people with disabilities. So we need to be sure that thechanges we now make are indeed reform.While the Governor’s proposal provides a good framework fordiscussion, I respectfully suggest that any reform plan should be measuredagainst the principles set forth and amplified in the attached analysis.I am sure that working together the Executive and LegislativeBranches can produce a plan that assures families that when they entrusttheir loved ones for care, their loved ones will be safe and not subject toabuse or neglect. I am confident that we can create a system of caring forpeople with disabilities that recognizes them as people and preserves theirdignity.Very truly yours, Thomas J. Abinanti
“PEOPLE WITH DISABILITIES PROTECTION ACT”
-Thomas J. Abinanti, 92
nd
Assembly District
I. GOAL: INDEPENDENT OVERSIGHT
A. Reform means establishing independent oversight fromdifferent sources separate from service-provider agencies.The proposed legislation concentrates oversight in one superagency which also provides services. Combining operationalfunctions (rule-making, training, recordkeeping, reporting of incidents) with oversight institutionalizes a conflict. Concentratingoversight control in the Governor’s office gives the appearance of diminishing prosecutorial independence.The legislation should include:
1.Career prosecutors not reporting to Executive Brancha.Employed and supervised by NYS Attorney Generalb.Local prosecutors with AG supportc.Special State Police Unit to support local police2.Inspector General not reporting to Executive Brancha.Employed and supervised by NYS State Comptrollerb.Input from family/guardian counsels and ombudsman3.Non governmental not for profit protection and advocacy (P&A)watchdog agency with guaranteed funding from state and non-state sources empowered to investigate and commence civillitigation for systemic sufficiency.
a.
Should be established by statute not executive order.Executive Order makes entity dependent on thediscretion of Executive Branch over which it is chargedwith oversight.b.Should have jurisdiction over OPWDD, OMH, and OASASand also OCFS programs and adult homes.c.Governing Board should consist of a majority of peoplewith disabilities and family members.d.Functions should be restricted to monitoring,investigating and reporting on abuse/neglect. Otherfunctions should be moved to an office of services forpeople with disabilities.
4.
Reinstatement of local board–of-visitors type function.
B. Reform means facilitating immediate notification to mostconvenient law enforcement for investigation of possible crimes,preservation of evidence and protection of witnesses and victims.The proposed legislation funnels all abuse/neglect complaintsthrough a new clearinghouse bureaucracy which will causesignificant delay of /impediment to immediate notification of lawenforcement officials of potential crimes. The proposed legislationappears to delete requirements for certain officials to immediatelynotify law enforcement of a potential crime yet requireswhistleblowers to use dictated channels under criminal penaltyeven if they are at risk of retaliation.The legislation should:
1.
Clarify that anyone may report a crime directly to lawenforcement.a.No limitations on where complaints may be made
b.
Statewide reporting registry designed as a registry andtracking tool one means of entry into the criminal justice system not a clearing house for complaints.
2.
Reward not punish whistleblowers or put them at risk
C.Reform means understandable definitions and standards thatreflect Zero Tolerance for criminal behavior.The proposed legislation raises the bar for referrals to lawenforcement.The legislation should:
1.Standards
a.
Not raise the threshold from “some credible” evidenceto “preponderance of evidence”
b.
Not raise the threshold from “indicated” to“substantiated” requiring a finding that an individual orfacility is responsible.2.Definitions:a.Advocates and providers have complained about theproposed definitions being impreciseb.Definitions of abuse/neglect appear to wrongly omitaccidental injurious physical conduct no matter howoften repeated, or how many victimsc.Definition of physical injury appears to wrongly requirediminution of physical condition not just harm ordamage
d.
Confusion arises by changing Penal Law districtattorney definition to include inspector general.
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