Fighting Back against Abuse of the Disabled: If They Won’t Do It, We Will
At E. Stewart Jones Hacker Murphy, part of our job is to fight for people who can’t fight for themselves. And there is no group of people more vulnerable than the disabled, especially those whose welfare has been entrusted to a facility administered by the New York state government. Unfortunately, all too many disabled people have ended up feeling betrayed by the very facility that is ostensibly designed to help them. We can help you fight the system.
The New York State Justice Center for the Protection of People with Special Needs: Authority and Responsibilities
Over one million New Yorkers with special needs and disabilities, ranging from mental retardation to alcoholism, are receiving care at state facilities at any given time. Thousands of cases of abuse or neglect are substantiated (proven credible) every year, yet only a minuscule fraction of these cases result in a prosecution or even in a blacklisting that would prevent an abusive staff member from continuing to work with disabled people.
The situation is horrifying, and it has been that way for a long time. The previous failure of state agencies to stem the tide of abuse and neglect triggered the creation of the New York State Justice Center for the Protection of People with Special Needs (the “Justice Center”) in 2013. Its mission is to investigate and prosecute the abuse of people with special needs who are receiving care at state facilities such as:
- The Office of Mental Health
- The Office for People With Developmental Disabilities
- Residential programs certified by the State Education Department
- Other New York state agencies with similar purposes
To fulfill its mission, the Justice Center is vested with wide investigatory and prosecutorial powers. Its core responsibilities include:
- Operating a toll-free 24/7 hotline where people can report suspected incidents of abuse and neglect committed against disabled people in state care;
- Maintaining a Staff Exclusion List (SEL), containing the names of former care providers who have been blacklisted from ever caring for disabled people again because of their involvement in incidents of serious abuse or neglect;
- Investigating all reports of abuse and neglect, cooperating with law enforcement, and prosecuting misconduct that constitutes criminal behavior;
- Providing support to abuse and neglect victims as well as their families;
- Providing information about abuse reporting and investigations as well as case status updates;
- Accompanying victims and witnesses to judicial proceedings;
- Operating a toll-free Information and Referral service;
- Maintaining a Disability Resource Clearinghouse with information about disability-related services as well as legal resources.
The Disturbing Findings of the New York State Comptroller Audit Report
A recent report, prepared by the New York State Comptroller, after auditing the Justice Center, reached some depressing conclusions. The report harshly criticized the Justice Center for:
- Failing to provide the Comptroller with case-specific information on over 70 percent of the incidents of suspected abuse contained in the Vulnerable Persons Central Register (VPCR);
- Prioritizing the protection of the due process rights of alleged abusers while, at the same time, failing to fully investigate allegations of abuse and neglect that were raised by the vulnerable individuals whom the Justice Center is charged with protecting;
- Failing to include at least three individuals on the Staff Exclusion List (SEL), even after these individuals were found to have committed serious acts of abuse or neglect;
- Maintaining an inaccurate and incomplete database of reported allegations of abuse and neglect; and
- Stonewalling its oversight and monitoring agency, Disability New York, by blocking access to information about its operations, thereby forcing Disability New York to file a lawsuit to compel disclosure.
A Storm is Rising… Ever So Slowly
Following the release of the report on March 6, 2017, a Buzzfeed News story alleged that the Justice Center hardly ever holds abusers criminally accountable. In response, several members of the New York State Assembly promised to hold hearings examining the Justice Center’s activities.
Although the wheels of justice have turned slowly, the situation is now starting to draw national attention. In December 2018, Congresswoman Elise M. Stefanik and three other New York congressional representatives issued a letter asking the US Department of Justice to investigate the Justice Center.
The letter alleged that the Justice Center failed to bring criminal charges in well over 95 percent of substantiated cases of abuse and neglect and that it failed to investigate the deaths of nearly 1,400 disabled people in state care facilities. At present, however, no concrete action has been taken to remedy the situation. You don’t have to wait for the government to take action, however. You have options, and we can help you take advantage of them.
New York Law and the Rights of Disabled People
New York civil law, like the civil law of every other state, allows people who have been harmed by the misconduct of another party (whether that party is an individual or an organization), to demand monetary compensation for that harm from the responsible party, by filing a personal injury or civil rights lawsuit. This compensation is not limited to tangible economic damages such as medical bills; it can also include intangible damages such as pain and suffering.
Fortunately, a long-standing principle of New York personal injury law is the principle of respondeat superior. This means that an employer (such as a state-run care facility) is responsible for the wrongful conduct of its employee (such as a staff member) that was committed in the line of duty, even if the employer itself was not at fault. This principle allows you to file a claim against more than one defendant at the same time.
If you or your loved one suffered abuse at a state-run facility, the obvious defendants would be the offending staff member (who likely lacks the financial resources to pay a large judgment against him) and the facility itself. You might also consider suing the Justice Center for failing to properly supervise or deter the abuse due to lax enforcement of pre-existing rules.
Filing a Lawsuit against the New York State Government
Suing the government is not the same as suing a private party. There are special restrictions as detailed below.
Once upon a time, it was difficult if not impossible to file a lawsuit against a government entity seeking money damages. This was based on the reasoning that, since any compensation would come out of government funds, suing the government is equivalent to suing state taxpayers. This immunity from lawsuits is known as sovereign immunity.
Any state, however, is entitled to voluntarily waive part or all of its sovereign immunity. Fortunately, the state of New York has chosen to waive much of its sovereign immunity for civil lawsuits based on abuse-related claims such as personal injury. New York has waived its sovereign immunity for the performance of “proprietary acts” such as health care.
Because of this waiver, it is probably possible for you to win money damages against a state-run care facility for the disabled. It would be much more difficult, if not impossible, to win money damages against the Justice Center for failing to properly supervise the activities of state-run facilities. This is because New York has not waived its sovereign immunity for “governmental” activities that involve the exercise of discretion.
Punitive damages are sometimes awarded to victims of abuse in addition to normal compensatory damages. In fact, punitive damages are particularly likely to be found appropriate in cases of intentional misconduct by the defendant. Unfortunately, it is a settled principle of New York law that punitive damages cannot be awarded in lawsuits against the state government.
To file a lawsuit against the government (or even to issue a credible settlement demand), you must comply with certain restrictions:
- You must file a Notice of Claim with the New York Attorney General within 90 days of the incident of abuse that gave rise to your claim. The Notice of Claim must include your name and address; your lawyer’s name and address; a statement describing what happened; the time and place of the incident; and a description of your damages (with the dollar amounts you are claiming).
Be careful – if you forget to include a claim or item of damages, you may lose the right to assert them later. The Notice of Claim must be served on the proper person by personal delivery or by registered or certified mail.
- You must wait at least 30 days to file your lawsuit. During this time, the defendant (probably state-run facility) may request a hearing to enable it to begin its investigation of your claim. The defendant may demand that you submit to a physical examination of your injuries.
- Your lawsuit may only be filed in the New York State Court of Claims.
- Please note: The government may argue that your claim does not fall within the scope of claims that are permitted under New York’s waiver of sovereign immunity. You will need to be ready to answer this objection.
This procedure is identical regardless of whether your claim relies on tort law or on a civil rights statute.
Take Decisive Action Immediately
If you believe that your disabled loved one may be suffering abuse or neglect at a state-operated facility, your first priority needs to be to have the abuse stopped immediately. We can help you do that. Once that goal is accomplished, it will be time to aggressively seek the financial compensation that your loved one deserves.