New York’s mental health facilities are not ensuring parents and guardians are properly notified of incidents of abuse and neglect, according to an audit released today by State Comptroller Thomas P. DiNapoli.

“Vulnerable patients are at greater risk when their parents and family members are kept in the dark,” said DiNapoli. “Jonathan’s Law can only help prevent tragedies if abuse and mistreatment in mental health facilities is properly reported and actions are taken. State officials must do more to ensure facilities are meeting requirements.”

In February 2007, Jonathan Carey, a 13-year-old non-verbal autistic and developmentally disabled boy, died while in the care of a state facility. His parents had attempted multiple times to obtain information concerning several unexplained injuries, unauthorized changes in treatment and suspected abuse and neglect.

In May 2007, “Jonathan’s Law” was enacted to expand parents’, spouses’, guardians’, and other qualified persons’ access to records relating to incidents involving family members residing in facilities operated, licensed or certified by the Office of Mental Health (OMH) and other state agencies.

Reportable incidents under Jonathan’s Law involve abuse (physical, sexual or psychological) or neglect, as well as incidents that may result in or have the potential to result in harm to the health, safety or welfare of a patient.

OMH manages the operation of 24 state psychiatric centers and the oversight of more than 650 providers that operate private facilities. For the period April 1, 2015 through Jan. 9, 2019, a sample of eight facilities were examined, including four operated by the state and four operated by licensed providers. Auditors found that OMH did not implement processes to effectively monitor whether these state and privately-run facilities are complying with Jonathan’s Law requirements.

While auditors found that facilities have established practices for notifying qualified persons within 24 hours of initial reporting of incidents, 20 percent of the incidents reviewed (42 total, all involving children under the age of 18) lacked support showing that the required notification had been made.

OMH’s interpretation of Jonathan’s Law potentially hinders access by qualified persons to pertinent information concerning treatment of their family members.

Auditors also found facilities do not always provide all records to parents and guardians when requested or are not providing them within 21 days of a request or the conclusion of the investigation, as required. Only 33 percent of the records reviewed were provided within the required time frame.

Additional findings in the audit include:

• OMH does not use the New York State Incident Management and Reporting System to capture information related to Jonathan’s Law compliance and cannot readily determine whether facility officials are meeting the law’s requirements.
• Each facility provided different information – with some offering more detail than others – to qualified persons when fulfilling records requests. As a result, qualified persons may not be receiving all pertinent information on incidents affecting the well-being of their family members.

DiNapoli recommended OMH incorporate the reporting of actions taken to comply with Jonathan’s Law into NIMRS to allow the office to more readily track efforts to meet requirements. Also, OMH should provide updated guidance to facilities on their responsibilities related to Jonathan’s Law requirements including clear and consistent implementation procedures and require their prompt implementation.

OMH officials disagreed with the audit findings. The office’s response is included in the final report, which can be found online at: https://www.osc.state.ny.us/audits/allaudits/093019/sga-2019-18s22.pdf

During the course of their work, auditors also sought information from the Justice Center for the Protection of People with Special Needs (Center), but, due to legal restrictions, the Office of the State Comptroller (OSC) was unable to examine unsubstantiated records. A bill was introduced in the last legislative session and passed the Senate that would allow OSC access to these records.

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