JUSTICE OR INJUSTICE: A HISTORY AND CRITIQUE OF THE NEW YORK STATE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS.

Author:Bailly, Rose Mary
 
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  1. INTRODUCTION

    The creation of the New York State Justice Center for the Protection of People with Special Needs ("Justice Center") was announced with great fanfare in 2013. (1) Its goal is laudable: strengthening and standardizing "the safety net for vulnerable persons, adults and children alike, who are receiving care from New York's human service agencies and programs." (2) Its jurisdiction is broad: covering residential and non-residential programs and provider agencies that come within the purview of six state oversight agencies, namely, the Office of Mental Health, the Office for People with Developmental Disabilities, the Office of Alcohol and Substance Abuse Services, the Office of Children and Family Services, the Department of Health, and the State Education Department. (3) Its powers are comprehensive: investigating allegations of abuse, neglect, and significant incidents, and disciplining individuals and agencies pursuant to administrative authority. In addition, it can prosecute crimes of neglect and abuse pursuant to criminal prosecutorial authority. (4)

    Given that over 270,000 vulnerable children and adults live in residential facilities overseen by the state and that numerous other individuals receive services from "day programs operated, licensed[,] or certified by the state[,]" (5) the creation of the Justice Center is consistent with New York's history of oversight of vulnerable individuals. The state has overseen various state and municipal programs and private organizations that have addressed the needs of vulnerable individuals practically since New York's first poorhouse opened in 1736. (6) The development of that oversight has been a series of responses to perceived deficiencies of an existing system, and the creation of the Justice Center is, much in the same way, a response to a 2011 study commissioned by the Governor to examine the treatment and care of vulnerable adults. (7)

    The Justice Center's jurisdiction reflects a departure, however, from traditional oversight. (8) State administrative and regulatory review has been carried out by specialized state agencies established during the late nineteenth and twentieth centuries to address specific categories of individuals receiving care and treatment according to their needs. (9) Residential and day treatment programs, as well as their custodians and employees, have been disciplined for abuse and neglect in accordance with state regulations created by these agencies. (10) Criminal prosecutions have also been referred to county district attorneys. (11)

    The Justice Center unites all specialized agencies, all vulnerable individuals with diverse needs, and all custodians and employees trained to meet those needs under one additional layer of uniform rules and regulations, with potential administrative discipline, civil liability, and criminal prosecution also under the same umbrella. (12)

    This article explores the history of state oversight in New York and the departure represented by the Justice Center. This article first traces the early history of oversight. (13) It then discusses the role of the Commission on Quality of Care for the Mentally Disabled, an antecedent organization similar to the Justice Center. Next, it examines the Justice Center itself. Last, this article concludes with some reflections on the Center.

  2. HISTORY

    Poorhouses were part of New York's landscape from early colonial days as the solution for housing people in poverty who refused to work, were unable to work because of age, illness, addiction, or disability, or were willing but could not find work. (14) By 1824, as a consequence of the Poorhouse Act, (15) people who were elderly, orphaned, had disabilities, or a mental illness were housed together indiscriminately in poorhouses. (16) New York took a significant step toward state oversight of these institutions in 1827 by requiring that local poorhouse officials submit annual reports to the Secretary of State. (17) Thereafter, in 1867, the Board of State Commissioners of Public Charities ("State Board of Charities") (18) was established with the purpose of inspecting all charitable institutions--including poorhouses receiving state aid--to determine whether state funds were being properly spent. (19) The Governor had urged the creation of such a commission, deeming that a "reasonable degree of [state] supervision" was necessary because a great number of institutions were providing care to "the aged, the helpless, the infirm[,] and the young," using a substantial amount of public funds. (20)

    The Board of Charities' annual reports revealed that the conditions in the poorhouses were deplorable, with overcrowding and the intermingling of the young and old, the sick and the well, and people with mental illness and disabilities. (21) To assist it in assembling these reports, the Board of Charities created a standardized form for collecting data from the institutions it inspected. (22) It used the data it amassed to consider how the individuals in the poorhouses could be categorized so that they could receive care in more appropriate settings (23)--a desire that played out in various restructurings of state government that occurred throughout the years. (24) The Board of Charities' reports stimulated interest in the plight of these individuals and the need for corrective action. (25) The Board of Charities (26) was enshrined in Article VIII of the New York State Constitution in 1894. (27) Known now as the "Board of Social Welfare," (28) its role has been modified through a variety of state government reorganizations. (29) Although today it is described as "responsible for overseeing the quality of State policies and programs relating to child and adult care to protect the welfare of needy and dependent persons," (30) this role appears to have now been subsumed by the Justice Center. (31)

    Among the first groups to be diverted from the poorhouse were individuals with mental illness. (32) By the late 1800s, New York had seven state hospitals for treating individuals with mental illness. (33) Although many local asylums remained in operation, eventually those advocating for state control of these facilities carried the day, and in 1890, the State Care Act established the principal of state care, making the law a milestone in the history of the care for individuals with mental illness. (34) Oversight jurisdiction was transferred from the Board of Charities to the State Commission of Lunacy in 1889, (35) and from there, to the State Hospital Commission in 1912, (36) which morphed into the Department of Mental Hygiene in 1927. (37) As a consequence of state government reorganization in 1978. (38) the Department of Mental Hygiene was divided into several more specialized agencies, (39) including the Office of Mental Health, which today oversees twenty-five mental health residential facilities (40) and "regulates, certifies and oversees more than 4,500 programs... [that include] various inpatient and outpatient programs, emergency, community support, residential[,] and family care programs" operated by local governments and nonprofit agencies. (41)

    The purpose of the legislation was to ensure that available resources were used more efficiently and effectively to provide for the unique needs of diverse populations. (42) Part of the Office of Mental Health's creation was the oversight component of a Board of Visitors. (43) Each hospital under the jurisdiction of the Office of Mental Health now has a Board of Visitors charged with visiting the facility and reporting on conditions "to the Governor, to the commissioner[,] and to the [then-existing] chairman of the state Commission on Quality of Care for the Mentally Disabled." (44) The Board of Visitors must make an annual independent assessment of the facility. (45) The Board of Visitors is also charged with inspecting family care homes and residential care centers for adults with the same reporting requirements. (46) Adult homes, which often include residents with mental illness, ultimately have come under the supervision of the Department of Health. (47)

    The Office of Mental Retardation and Developmental Disabilities, discussed below, (48) and the Office of Alcohol and Substance Abuse Services, also emerged from the 1978 reorganization. (49) Today, the Office of Alcohol and Substance Abuse Services "regulates the state's system of chemical dependence and gambling treatment agencies." (50) It operates twelve in-patient rehabilitation facilities that provide services to over 8,000 persons annually and regulates nearly 1,000 chemical dependence programs. (51)

    In 1851, a specialized facility to care for individuals with disabilities was established experimentally in Albany, New York, (52) and later moved to Syracuse, New York. (53) At first, oversight of this hospital and others fell to the Charities Board, (54) and then to the Department of Mental Hygiene. (55) Then, as a result of the revelation that over 6,000 individuals with intellectual disabilities were housed in deplorable conditions at the Willowbrook State School on Staten Island, the Department of Mental Hygiene, which had overseen schools like Willowbrook, was divided into three agencies in 1977. (56) Out of this division came the Office of Mental Retardation and Developmental Disabilities (renamed the "Office for People with Developmental Disabilities" in 2010), with specialized knowledge on the care of individuals with intellectual disabilities. (57)

    Today, the Office for People with Developmental Disabilities oversees the provision of services to approximately 130,000 individuals with developmental disabilities, including residential services to more than 41,000 individuals. (58) It also oversees self-directed care, "a service option available to any individual and family who wants to take greater control over the services and supports they receive" that also allows an individual "the fullest...

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