Governor Cuomo responded to the numerous allegations of years of abuse in many of NYS’ housing for people with mental disabilities with the creation of the Center for the Protection of People with Special Needs. As part of his intervention, he eliminated the Commission on Quality of Care and Advocacy. To me, that is akin to throwing out the baby with the bath water. Now, no other than our ‘friend’ OMH will be charged with overseeing those responsibilities and more. See below why I think this new policy is doomed to do nothing meaningful for us.
As you know, according to Cuomo’s statement, with the new regulations
“a new level of transparency will be created for non-state operated facilities and programs licensed or certified by the State to serve people with disabilities and special needs.”
There’s a big problem right there in that statement that will leave this new initiative useless for most of us from the get-go.
1. NYS Mental Health Act (Art.31.02a) states that “operating certificate required” and that all providers must have an operating certificate. The only exceptions are for those certified by another agency, guaranteeing in that way that all providers will be certified. This Act is what makes our system a public mental health policy system.
2. The purpose of this certifying requirement, among others, is to:
a) guarantee as much as possible that the quality of services for which the government is paying to non-profits is not only adequate, but that no harm will be caused in the delivery of such services. b) that the state (OMH) will have legal access in those facilities where people have complain about abuses.
3. OMH has engaged in a policy of de-certifying most programs since at least the 1990s. You can see, and count for yourself, how at least half of all programs are not licensed or certified by OMH. See NYS Consolidated Budget and Claiming Manual, Appendix F – OMH Programs Types, Definitions and Codes.
4. Among those programs uncertified by OMH are precisely those which caused this new batch of revisions to our laws to protect people with disabilities.
5. OMH has a horrible legal record of siding with providers being accused of mistreating and abusing the people they were charged to care for and protect. Two of the most glaring examples are the recent Hirschfel v Teller (2010) and DIA v NY Coalition for Quality Assisted Living, Inc. (decided April 2012).
6. OMH’s contracts with providers enables them to be abusers, or so it seems. See Certification of Compliance For Contractors of Non-Licensed Programs Exhibit A, where the last paragraph states that :
“To the extend that a material issue may exist, OMH has determined that the best interests of the users of the program will be served by continuing the Agreement while providing the Contractor with an opportunity to develop and/or implement a corrective action plan.”
Evidently, these “contractors” do not implement any “corrective” actions and every 20 years or so the State has to tear down its system and build a new one in order to correct the ineptitude of some providers. Meanwhile, we suffer in our bodies and minds the corrosive consequences of a job badly done by these providers.
As long as those two conditions exist, OMH’s dismal legal record at protecting us and OMH’s policy of de-certifying providers, there will be no ‘center for justice’ on earth capable of enacting a program of legal protection for people like me.
These are some of the recommendations the Citywide Mental Health Project proposes:
1. If there is going to be a revamp of our legal mechanism to protect people with disabilities, that revamping will come out empty if OMH’s policies are not reviewed too.
2. The State must enforce it’s policy that “operating certificate required”. OMH must re-certify all those programs now out of our public system.
3. The new Center for Justice must include all providers, make it clear that the laws apply to all providers without exceptions. Eliminate the “certified or licensed” requirement.
4. Most meaningful for us, there must be a mechanism for consumers at the point of service, meaning at the program facilities, for us to exercise our right to have a say in program’s policies. This comes as part of McKinney´s and even OMH’s regulations. But OMH refuses to implement this requirement.
5. The mechanism is there: the Consumer Advisory Board (CAB). The Citywide Mental Health Project is focusing on this CAB as our tool to have a say in the programs. We can use it to train ourselves to provide some of the monitoring and oversight that OMH is not providing, and devise meaningful grievance procedures. This could even save money to the state.
Consumers need to be more forceful in this discussion. Sitting to wait for the day when the system will stop hurting us is not a good approach.