At some point within the past few years, a senior safety counselor working in an upstate New York residential school serving children with disabilities was accused of punching a 16-year-old student in the head, face and ribs, and using excessive force to restrain him, face down, on a dirty mat, according to legal records. (The names of the counselor, the alleged victim, and the school, as well as the date of the alleged incident, are redacted from the public record, as required by the state Protection of People with Special Needs Act.)
The disturbing allegations triggered an investigation by the New York state Justice Center for the Protection of People With Special Needs, a 6-year-old agency that is empowered to investigate reports of abuse and neglect in a range of facilities across the state that serve people with special needs, and to pursue non-criminal penalties against staff found responsible for misconduct.
The Justice Center’s investigation substantiated the allegations of abuse against the counselor. It also found that he had deliberately used restraints inappropriately and that other staff members had engaged in “obstruction of reports” for failing to follow the mandate to report the incident to the Justice Center. As a result of the finding against him, the safety counselor would be placed on the Justice Center’s Staff Exclusion List – a list of people who have committed acts so egregious that they are permanently barred from working in any of the facilities it oversees. The system, it seemed, had successfully ensured that vulnerable youth in residential care would no longer be exposed to this abusive person.
Then the counselor challenged the outcome of the Justice Center’s investigation through its internal appeals unit, which conducts reviews of findings of abuse and neglect. After the unit upheld the determination against him, the counselor opted for a hearing before an administrative law judge. For the hearing, unlike the prior review, he had the right to submit documents, call his own witnesses and question those brought by the Justice Center and to challenge any documents submitted into evidence by the Justice Center.
This time, represented by an attorney, he succeeded in persuading the administrative judge, Jean T. Carney, to recommend that the findings against him be reversed. In her decision, Judge Carney highlighted issues that raised serious questions about the Justice Center’s investigative process in the case. Taking into account the logistics of the alleged incident, the student’s changing testimony, and the lack of corroboration, she found that the allegations of physical abuse were “not supported by credible evidence in the record.” She also determined that the counselor's use of restraint was in line with established techniques. As for the obstruction charge against the staffer’s colleagues, the judge reversed that as well, noting that those accused of failing to report the incident had not only not witnessed it, but were not even informed of the allegations until after the student had made the report. As a result, the substantiated reports against the counselor and the other staff members were ordered amended and sealed.
This was not the first time someone working in a facility overseen by the Justice Center had allegations of abuse or neglect against them substantiated only to be reversed or downgraded on appeal.
The Justice Center was conceived in response to a 2011-2012 multi-part exposé in The New York Times that focused on abuse in state-run residential facilities for the developmentally disabled and a report prompted by the series that highlighted the need for “sweeping reforms” to the system of reporting and investigating incidents. It was created through legislation spearheaded by Gov. Andrew Cuomo and opened in 2013 with a dual mission: to investigate and prosecute allegations of abuse in state-certified facilities serving approximately 1 million disabled and vulnerable individuals, and to address the conditions that facilitate that abuse in the first place.
Direct-care workers, nurses, teachers, social workers and safety counselors have always been subject to suspension, termination and other penalties from the facilities where they work. However, differing definitions of abuse and investigative processes across multiple state agencies had created a situation that often led to inconsistent responses to abuse allegations, leaving vulnerable people at increased risk of harm.
The Justice Center, through a 24-hour hotline set up to take mandated reports, has created a centralized system for reporting allegations. As it is empowered to investigate all allegations of abuse and neglect in the agencies it oversees, it has created a standardized system for categorizing offenses and it can impose administrative sanctions, including placing people on the Staff Exclusion List.
The Justice Center also has the power to initiate criminal prosecutions. However, because courts have ruled that its special prosecutors lack the legal authority to prosecute cases on their own because they are unelected, it mostly collaborates on criminal cases with local district attorneys.
Originally welcomed by many disability rights advocates, the fledgling agency has faced criticism. The New York state Comptroller’s office excoriated it in 2015 for a lack of transparency and for failing to put dangerous people on the Staff Exclusion List, including erroneously leaving people off the list who belonged there. The Justice Center also came under fire by lawmakers who sent a letter last year alleging that it failed to prosecute serious offenders in criminal court and wasted Medicaid funds, something the center has vigorously denied. These allegations have caused one of the original sponsors of the legislation, Assemblyman Thomas Abinanti, to declare the agency “legalized obstruction of justice” and twice introduce legislation to abolish it.
Amid these criticisms, one aspect of the Justice Center that has received relatively little scrutiny is how it conducts its investigations, including its methods for gathering evidence to substantiate a claim, its system of classifying offenses, and the way it determines who is culpable for proven instances of abuse or neglect. Records reveal deficiencies in the investigative process that have resulted in false findings, and interviews with people involved in Justice Center proceedings suggest that the agency’s investigative practices may sometimes even end up doing harm to both residents and caregivers.
The Justice Center does not make public the names of people against whom it has made findings of abuse or neglect, including those it has placed on the Staff Exclusion List, which any entity providing services within the jurisdiction of the Justice Center is required to check against any potential new hire. It also does not release the details of each individual case. It does, however, publish redacted appellate decisions by administrative law judges related to individuals’ appeals of substantiated findings against them. These decisions shed light on the kinds of offenses that are being investigated by the Justice Center, and how those investigations are conducted.
A review of available appeal decisions revealed that between March 2014 and April 2018, 139 of the 563 cases that went before an administrative judge on appeal were reversed in full. An additional 46 cases were partially reversed, meaning that out of all of the cases appealed in that time frame, a total of one-third contained elements that did not meet the Justice Center’s burden of proof to establish responsibility. Until they were reversed or downgraded, 16 involved findings that had initially placed someone on the Staff Exclusion List, effectively prohibiting them from working in the field. (For one imperfect point of comparison, a 2015 Bureau of Justice Statistics report drawing on data from 2010 found that 12% of criminal cases in state courts that were reviewed on the merits were reversed, remanded or modified on appeal.)
To be fair, the fact that the vast majority of substantiated allegations were not appealed might indicate that the Justice Center is getting it right most of the time. But it also could mean that many people lack the resources to pursue appeals (unlike in the criminal justice system, people undergoing Justice Center investigations are not entitled to a lawyer), or were simply unaware that an appeal must be filed within 30 days of a substantiated finding.
It is also important to note that not all of these reversals are based on a finding of actual innocence. Nonetheless, many of them call into question whether the right people are being held accountable for the right offenses.
Appeal records show that judges have reversed determinations after finding instances in which Justice Center investigators coached witnesses; failed to interview subjects of investigations, accusers, and other key witnesses; neglected to ask vital questions; and conducted confusing, leading interviews of witnesses with diagnosed difficulties in understanding and processing speech and communicating.
For example, in one case last year involving a mental health therapy aide trainee at a psychiatric hospital who was accused of sexually abusing a teenage resident, the judge determined that “at no time during the course of the investigation was the (accuser) asked to describe (the accused)” and also noted that “the Justice Center Investigator … did not interview anyone connected with these allegations, including the (accuser) and the (accused).”
In another 2018 case, in which a direct support assistant at a community residence for disabled adults was accused of strangling a resident, the judge found that it was only after “much coaching by the supervising investigator” that the accuser seemed to identify the accused as the perpetrator. Another reversed case involved two accusers offering conflicting testimony and an accusation against a staff member who was not present on the day in question.
These findings seem to comport with concerns expressed in a 2015 letter from the president of the New York State Psychiatric Association (NYPA) and the association’s executive director and general counsel to the then-executive director of the Justice Center, in which they wrote that they had received “numerous” reports from members “regarding the conduct of the Justice Center investigators in connection with incident reports filed” with the Justice Center. These included allegations that investigators lacking special medical or psychiatric training were conducting investigations “regarding issues of medical care and treatment including use of restraints and psychotropic medication.”
The NYPA letter also asserted that investigators “routinely advise individuals being questioned during investigations that they are not entitled to the assistance of legal counsel when being interviewed” and threaten that if they persist in requesting counsel they would be charged with obstructing the investigation.
Christine Buttigieg, a spokesperson for the Justice Center, told City & State that subjects of investigations do “have the right to bring counsel or union representation to any interview.”
Yale Pollack, an attorney with a focus on labor and employment law, represented a staff member investigated by the Justice Center for “obstruction of reports” for allegedly failing to report a client’s head injury, which was the result of a fall. Pollack says his client, the house manager at a home for developmentally disabled adults, was unaware of the injury but was unable to prove that in a process bent on finding him responsible. Specifically, Pollack alleges that his client was not allowed to confront or question the investigator and that the investigator did not follow up on holes in the case he and his client pointed out.
After losing both of his appeals during a process that took two years, Pollack’s client opted not to take his case to civil court in what is known as an Article 78 proceeding, the last resort for getting a substantiated finding overturned, and instead decided to leave the field altogether. Pollack believes “a botched investigation” pushed a good, caring man out of a career he loved.
Pollack thinks that many subjects of Justice Center investigations would likely see their substantiated findings overturned through Article 78 proceedings, but hiring a lawyer for that, he said, “could be an expensive proposition for many clients, who are likely low-wage earners in the first instance, who are simply just looking to keep their jobs. Even the time aspect,” he added, “is going to dissuade anybody from pursuing a matter.”
For its part, the Justice Center sees the appeals process as “(ensuring) our cases are not just being rubber stamped.” According to Buttigieg, the agency “reviews all decisions for information on how we can improve our investigatory practices.”
However, Patricia Gunning, the former special prosecutor at the Justice Center who left the agency after alleging she was the victim of harassment by then-Acting Director Jay Kiyonaga, agrees with Pollack. (Kiyonaga was transferred and ultimately fired.) “Many employees may not be in a position to fight determinations by the Justice Center because it is a complex legal process,” said Gunning. “Generally, individuals who choose to appeal a finding hire an attorney. But this is daunting and expensive.
Gunning, now a candidate for Rockland County district attorney, added that many people “simply don’t appeal and simply accept the finding whether they think they could fight it or not. These employees are often people who are making low wages in very, very difficult jobs. People also need to move on, and these cases can drag on for a year or more.”
Michael Diederich, an employment and civil rights lawyer who has represented three people in Justice Center appeals and who also happens to be running for Rockland County D.A., says that the Justice Center’s administrative hearing system lacks the checks and balances to ensure due process. (The Justice Center uses a lower burden of proof – a preponderance of evidence standard – than the requirement in criminal court to prove guilt beyond a reasonable doubt.)
“They do this crazy process of prosecuting based upon second- and third-hand evidence where you have no right to confront your accusers,” said Diederich. “The quality of the hearing process, the justice here, is like you would expect in Soviet Russia.”
Gunning disputed Diederich’s characterization, noting that these are civil proceedings, not criminal prosecutions, and as such do not need to follow the due process rules of criminal procedure. “In these types of (administrative) hearings, it is not required that you call the victim,” she said. Also, she added, “hearsay is admissible, unlike in a criminal proceeding. This is important because the victims in these cases are vulnerable and sometimes not able to articulate what happened, so you have to build the case around them with witnesses or other corroborating evidence.”
Buttigieg, the Justice Center spokesperson, told City & State that the agency “takes the due process rights of subjects very seriously.”
According to a 5-year report issued by the Justice Center in 2018, the agency conducted 46,000 investigations into allegations of abuse or neglect in the first five years of its existence, an average of 9,200 a year. The report notes that of those, 16,000 were substantiated. By its own account, three-quarters of substantiated cases fall into the category of lowest severity, which covers a range of infractions, including pulling a client by the arm too roughly and improper use of language. With a staff of 175 full-time investigators, each investigator works on an average of 51 cases per year, or one each week.
Buttigieg would not discuss on the record details of how the Justice Center conducts its investigations, but Gunning told City & State that when she was at the agency, “the caseloads were extremely high and often went beyond allegations of physical abuse and into more complex areas of the law.” She said that many investigators – most of whom she believes are “committed, hard working professionals” – were trained in social service provision and not law enforcement, something she, as a former prosecutor, sees as a weakness.
Some would argue that high rates of abuse (the rate of violent victimization against
persons with disabilities is 2.5 times higher than for persons without disabilities) justify erring on the side of caution and investigating as many of these allegations as possible, even imperfectly. Enough support for the Justice Center remains among legislators that Abinanti’s first bill to dissolve the agency failed.
However, a paper published this month in the journal Child Abuse & Neglect highlights the possible pitfalls of this well-intentioned perspective. The authors conducted an ethnographic study of people working in agencies overseen by the Justice Center and found that “the fear of prolonged and intimidating investigations, false allegations, and unavoidable violations of policy negatively affected (staff) practice and contributed to staff turnover.” They also learned that organizations suffered “serious staffing challenges and increased costs of overtime and administrative management of compliance.”
Some participants went so far as to suggest the “intensive oversight” may have “reduced the quality of care received by youth by disrupting therapeutic relationships, causing youth to be cared for by unfamiliar workers, and compelling workers to act defensively to prevent allegations rather than in the best interest of youth.”
This seems to bolster a 2016 report by a group of provider associations, which says that Justice Center investigations lead to more staff suspensions during the investigation and appeals processes. This raises concerns in a field where facilities are already often understaffed and turnover can be high.
The Justice Center responded, through Buttigieg, that “the protection of people with special needs is the Justice Center’s top priority. Facilities are required to have a protection plan in place for the alleged victim while an investigation is ongoing. However, state oversight agencies and private providers, not the Justice Center, make decisions about a subject’s employment status during investigations.”
Still, there are instances of employees being punished for systemic problems, such as understaffing: in one Justice Center case a social worker was facilitating a group of 16 lower-functioning clients in an understaffed mental health facility when a client disappeared. His co-leader had not shown up that day, so when the client did not arrive at his group there was no way for him to communicate that to a manager without leaving the other 15 clients alone. Despite that, he was charged with neglect. The appeal judge reversed the finding, chiding the facility for insufficient procedures and inadequate staffing and noting that “The Subject could not be in two places at the same time.”
Supporters and critics alike agree that serious abuse and neglect occur in facilities the Justice Center oversees, and that these need to be addressed through meaningful action. The Justice Center was devised to fill the gaps in previous agencies’ oversight and bring the justice that has long been denied to people with special needs across the state. Where supporters and detractors disagree is on whether the Justice Center has materially improved the state’s handling of its oversight role. A closer look at its investigations brings this question into sharp relief. If cases continue to be overturned due to investigative incompetence, the embattled agency will have even further to go to prove its value to New York’s most vulnerable – and to all those who care for them.
This story was supported by a grant from the Fund for Investigative Journalism.