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In re Anonymous, an Intermediate Care Facility

New York Court of Appeals

June 28, 2018

In the Matter of Anonymous, an Intermediate Care Facility, Respondent,
David Molik, et al., Appellants.

          Kathleen M. Treasure, for appellants.

          Jacqueline M. Caswell, for respondent.

          GARCIA, J.

         Three sexual assaults, committed by the same resident, occurred within a six-month period at petitioner's residential health care facility. The Justice Center for the Protection of People with Special Needs, acting pursuant to Social Services Law § 493, required petitioner to undertake certain remedial measures to correct the systemic problems that led to the attacks. We hold that the Justice Center acted within its statutory authority.


         Petitioner operates a twelve-bed intermediate health care facility licensed to provide services to people with various cognitive and developmental disabilities. In June 2013, after a resident aide briefly left the facility's common room, a male resident ("S.H.") engaged in inappropriate sexual contact with a female resident. This incident was the third time in six months that S.H. had sexually assaulted another resident.

         The Justice Center thereafter investigated a report of neglect against the aide and residence supervisor. The Justice Center found the allegations against the two employees to be unsubstantiated, reasoning that there were no policies or requirements in place that prohibited staff from leaving the common room unattended. However, the Justice Center substantiated allegations of neglect against petitioner (the facility) for failing to implement clear staff supervision protocols and for failing to modify S.H.'s care plan to increase his level of supervision after the first two attacks. The Justice Center noted: "Failure to have these policies in place exposed [the victim] to harm or the risk of harm, but any culpability by other facility staff is mitigated by these systemic failures. Based on these findings, this case is being referred to the Office for People With Developmental Disabilities [OPWDD] and the Justice Center's Oversight Monitoring Unit to monitor that appropriate corrective actions have been put into place." Petitioner thereafter asked the Justice Center to amend the report to "unsubstantiated" and to seal it.

         Following a hearing, the administrative law judge denied petitioner's request, concluding that "[t]he Justice Center has established by a preponderance of evidence that [petitioner's] lack of action constituted neglect and the proper level is category four" under Social Services Law § 493 (4) (d). The ALJ reasoned, in part, that "[t]he Agency needs to balance S.H.'s freedom with the safety and security of the other residents," and that, at the time of the third incident, "the Agency policies and procedures left the service recipients in the home vulnerable because S.H. was unsupervised during the day." The ALJ explained that Social Services Law § 493 "clearly allows a category four finding" of neglect against a facility "when the individual culpability is mitigated by systemic problems at a facility," and "[t]he fact that the individuals were unsubstantiated does not negate a finding against a facility." The ALJ's determination was then adopted by respondent David Molik, the Director of the Justice Center's Administrative Hearings Unit, who rendered a final determination denying petitioner's request and directing petitioner to develop and implement a plan to remediate its deficient conditions.

         Petitioner then brought this CPLR article 78 proceeding seeking to annul the Justice Center's determination, contending that (1) Social Services Law § 493 did not authorize the Justice Center to substantiate a finding of neglect against petitioner, and (2) the Justice Center's determination was not supported by substantial evidence.

         Upon transfer, the Appellate Division unanimously granted the petition and annulled the Justice Center's determination, holding that "the Justice Center acted in excess of its statutory authority in making a finding of neglect against petitioner" (Matter of Anonymous v Molik, 141 A.D.3d 162, 164 [3d Dept 2016]). The court determined that, "pursuant to Social Services Law § 493 (3) (a), the only circumstance under which the Justice Center could substantiate a report of neglect against a facility or provider agency is where an incident of neglect has occurred but the subject cannot be identified-a situation that is plainly not present here" (id. at 167). The court rejected the Justice Center's argument that the Justice Center was "empowered to substantiate' an allegation of neglect against petitioner by virtue of its statutory authority to make a concurrent finding under Social Services Law § 493," believing that "the scope of that concurrent finding' is expressly circumscribed by the statute" such that "the only concurrent finding' that may be made is that a systemic problem caused or contributed to the occurrence of the incident'" (id., quoting Social Services Law § 493 [3] [b]).

         The court found further support for its conclusion in Social Services Law § 493 (4), which "requires that all instances of neglect and abuse be categorized into one or more of four enumerated categories," but indicates that "categorization is predicated upon the existence of a [s]ubstantiated report[] of abuse or neglect'" (id. at 168, citing Social Services Law § 493 [4]). Reasoning that "the statute does not provide for categorization of a concurrent finding' into one of the four categories," the court determined that "a concurrent finding' cannot constitute-nor be equated with-a finding of neglect" (id.). Accordingly, the court concluded that, "under these circumstances, the Justice Center was simply without authority to substantiate' a report of neglect against petitioner" (id. at 169).

         We granted the Justice Center's application for leave to appeal (29 N.Y.3d 902');">29 N.Y.3d 902 [2017]), and now reverse.


         In 2012, the Protection of People with Special Needs Act was enacted to create a set of uniform safeguards to bolster the protection of people with special needs in New York (L 2012, ch 501, § 2, part A, § 1). To implement those safeguards, the Act created the New York State Justice Center for the Protection of People with Special Needs, an agency empowered to receive, investigate, and respond to allegations of abuse, neglect, or other "reportable incidents" involving disabled residents receiving services in licensed facilities or provider agencies. Among other things, the Justice Center maintains a statewide central register-the Vulnerable Persons' Central Register-which operates a 24-hour hotline created to field allegations of reportable incidents. Upon receipt of an allegation, the Justice Center must promptly commence an investigation, or it may delegate its investigatory responsibility to an oversight agency or to the facility or provider agency (Social Services Law §§ 488 [7], 492 [3] [c]).

         Social Services Law § 493 details the possible findings and consequences in connection with an investigation of abuse or neglect allegations. Following an investigation, a finding must be made, based on a preponderance of the evidence, that the allegation is "substantiated" or "unsubstantiated." Social Services Law § 493 (3) (a) provides that the finding "shall indicate whether:

(i) the alleged abuse or neglect is substantiated because it is determined that the incident occurred and the subject of the report was responsible or, if no subject can be identified and an incident occurred, that, the facility or provider agency was responsible; or
(ii) the alleged abuse or neglect is unsubstantiated because it is determined not to have occurred or the subject of the report was not responsible, or because it cannot be determined that the incident occurred or that the subject of the report was responsible."

(Social Services Law § 493 [3] [a].) The following paragraph, (3) (b), provides: "In conjunction with the possible findings identified in paragraph (a) of this subdivision, a concurrent finding may be made that a systemic problem caused or contributed to the occurrence of the incident" (Social Services Law § 493 [3] [b]). While all "findings" must be reported in the vulnerable persons' central register (Social Services Law § 493 [1] [d]), a report "that is found to be unsubstantiated" must be "sealed immediately" (Social Services Law § 493 [3] [d]).

         The statute also enumerates the various consequences that are triggered in the event of a "substantiated" report of abuse or neglect. Specifically, subdivision (4) establishes four categories of "substantiated" reports based on the nature and severity of the offending conduct and/or the facility conditions. Categories one through three largely concern culpable conduct by individual employees, such as intentionally causing serious physical injury, falsifying records, or obstructing an investigation (see Social Services Law ยง 493 [4] [a]-[c]). Category four includes incidents of substantiated abuse or neglect where the perpetrator "cannot be identified," as well as situations where "conditions at a facility or provider agency [] expose service recipients to harm or risk of harm" ...

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