Tag Archives: unlicensing

Cuomo Agrees to Plan for Housing Mentally Ill, Ending Legal Battle


This is breaking news in the NY Times. Cuomo Agrees to Plan for Housing Mentally Ill, Ending Legal Battle

This is an agreement to ´right´the wrongs committed by many NYS adult homes providers and that NYS judge that made that appalling decision in the case DIA v NYS-OMH etc in April last year. This agreement is a step forwards towards moving the people in those ‘homes’ of horrors to the community.

Am I personally happy and satisfied with this? I don’t go jumping with joy without first taking a quick glance to the text of the so-call ‘agreements’ and new laws to ‘protect’ people with disabilities of all kind. Why? Because one thing are the sound bites we get in the media about how great a new law is, another is the TEXT and the IMPLEMENTATION.

Now, with this agreement, everybody relaxes and forget about it. Just like with the Justice Center, we will assume that the government is looking to protect us. Nothing happens unless you threaten the government. Not even this agreement, the result of years of court battle with the state.

OK. I will NOT sour your joy. IT IS A STEP in the right direction.

I will tell you where we must put caution in this agreement.  You can read the agreement on your own here courtesy of Judge David L. Bazelon Center for Mental Health.

Suffice it say that the agreement WARNS those Adult Homes providers previously caught abusing the mentally ill that they should not interfere with their residents in this process of moving them out, or they ‘will be punished’. Adult Homes are going to lose $$ and they want to keep their houses of horror filled. That there is a NEED for a warning to them should tell you a LOT. (See page 8, part 4 in the agreement.)

First quick notes:

From “definitions” (pages 4 and 5):

1. You have to be 65 years old or under to qualify for the benefit of the agreement.

2. The agreement MAY take 4 or 5 years to be completed. If you are 62 now and you HAVEN’T been relocated within the next two years, you may not qualify anymore. Or at least the agreement doesn’t clarify that. This is a question that those of you in Adult Homes (AH) MUST ask the people involved in this agreement.

3. As usual, the agreement applies to AH that are LICENSED, per Social Services Law Article 7. If you are in an unlicensed one, you may have problem qualifying for the agreement. YOU MUST SEEK CLARIFICATION ABOUT THIS.

4.  AH with LESS than 80 beds do not qualify for the agreement. It (“transitional AH”) has to have 80+ beds AND  a “mental health census” of 25%. If you are in a small AH, you may want to confirm that it qualifies for the agreement.

5. “Impacted” AH are those in NYC with 120 beds or more AND a mental health “census” of 25%  of the population of the AH.

MENTAL HEALTH STATUS: Not so fast baby.

To qualify, a mental health evaluation to measure your level of functioning will be implemented. This is where the ENACTING may go astray, leaving people who are not dysfunctional ‘enough’.

1. Must have a mental diagnosis based on THE MOST RECENT DSM book.  I would say, tread with caution here.

  • ‘what if I my diagnosis is not in the book anymore? They removed some and added new ones.’ See my point?

2.  Excluded from the agreement are people with developmental disabilities, mental illness due to brain damage, and “SOCIAL CONDITION”. I’m as lost as you are on that last one. Looks like a loophole to keep people in. Must check the DSM bible for clarification.

3. “Must have a  SUBSTANTIAL FUNCTIONAL disability WITHIN the PREVIOUS 24 MONTHS before the date of the agreement.” Do you know what a “substantial”  functioning disability means? I suggest you look it up if you want to get out of there. Plus, it is ‘within’ the last 24 months of the agreement. Better check it out how that may affect you too.

4. Who will determine your disability, your substantial functional levels that will ALLOW them to put you in a supported housing?

  • a determination by SSA that you receive benefits due to mental illness will not be enough.
  • A “Health Home agency” AND a  MLTCP (managed long-term care Plan) will be in charge of the process of evaluating your qualification for the agreement. Even if SSA says you are disabled, these people may determine that you are not ‘substantially‘ dysfunctional and may disqualify you. See #5, subsections (b) i and ii on page 5.

So don’t assume that you automatically qualify to be relocated out of the AH just because you are there.

“PERSON-CENTERED PLAN”. Where have I heard that before??

Right, those of us in Supported Housing (SH) are struggling with “person centered support”. Welcome to our struggle. But, I will NOT deny that chances are that, if you make it to a SH, you may be better off than there. Just don’t come here thinking ‘wow, I made it. I’m out of danger’. Nope.

Now, I couldn’t find the dates for the agreement. If any of you find that info, please, forward it. It’s important to you, if you are in one of those homes,  because of the transition schedules. You don’t want to be left out.

My take about this:

1. This is a good step forward.

2. ALL THESE PEOPLE who are coming to the community are going to face the reality of what we have here: SH is over 80% unlicensed. This means, you have NO LEGAL PROTECTIONS there. People centered treatment does not exist. It’s a craps shoot.

3. the ‘culture of abuse’ that exists in those AH will relocate in the community, following our new ‘freed’ peers, with those workers who will get jobs from there to here.

4. TODAY MORE THAN EVER  we need to ORGANIZE our people. For ‘people centered ‘ services we NEED TO BUILD THOSE CABs.

5. Never has the state given ANYTHING without a fight. The NYS WILL BE crying ‘BROKE’ to avoid completing this agreement and creating housing for them. If you want to trust them 100% despite what history shows us, fine.

This is my first reaction to the agreement. Sorry if I sour your joy. I doubt it, though.

CONGRATULATIONS TO THE FORMER DIA.

GOOD WORK.

Welcome And good luck for those of you moving here to the community ‘with us’.

Like we used to say in the ’60s: the struggle continues.

Re: NYS Law 7400 creating the Justice Center for the Protection of People with Special Needs#6


(f) where applicable, establishing uniform procedures for character and competence reviews of provider agencies initially, and upon renewal of licenses and operating certificates requiring a review of performance records regarding incident management, the role of the board of directors in maintaining oversight over agency performance in this area, and the management of incidents affecting resident safety, including cases of systemic problems.

Ay ay ay! Again??

Many many years ago OMH had a system where they would post in their website info about how many complains against providers have been received and how close they were to lose their licenses. That was when the ‘not licensed’ was not so widespread. Then they stopped this practice because…well, you guess why.

For many many years afterwards, complains were not recorded, period. Now we are back at doing what they really don’t want nor intend to do.

In the first instance, complains from consumers in ‘not licensed’ programs will automatically be left out. Mind you, more than half of all programs are ‘not licensed’. I claim that our ‘public mental health system’ does not exist. If more than half of the programs are not licensed, meaning private, how can we claim to have a ‘public mental health system’?

There are better ways to keep track of complains including letting consumers figure out how to keep track of their complains in the programs.

In the second instance, how do you determine ‘character’ when those affected by that character can’t inform you whether they have been treated with dignity or not?

Have you noticed that this new bill has no provisions for meaningful consumer input?

Re: NYS Law 7400 creating the Justice Center for the Protection of People with Special Needs#3


s 553. powers and duties of the justice center. the justice center shall have the following powers and duties:
(d) consistent with appropriate collective bargaining agreements,
conducting all hearings and other proceedings relating to discipline of employees found to have committed abuse or neglect (for state entities bound by collective bargaining, the disciplinary process established through collective bargaining shall govern);

What this is saying is that, despite all of those hundreds of pages of new law to supposedly prosecute abusive workers, the unions determine how to deal with the perpetrator. It says so clearly: “IT SHALL GOVERN”, collective bargaining rules!

Now, if I were a unionized worker, I would want that in there. Honestly speaking, that’s their right, to protect each other, to have that union protect them. The government is not going to protect them, that’s why workers pay the union, for protection. I have no problem with that.

My problem is that NO ONE WAS REPRESENTING US CONSUMERS, the ones for whom this bureaucracy was being enacted, there. This was all done between politicians and the unions.

That’s why I keep insisting in that the ONLY mechanism mental health consumers have to protect themselves are the CONSUMER ADVISORY BOARDS in each program, if they can make it work for them. That’s what the Citywide Mental Health Project is trying to do: train ourselves to use the CABs for what it was meant to be.

Our power is in our number. The good intentioned lawyers who have represented us in court can’t protect us. We lost almost every case in court for the protection of people been abused, lost in appeals.

Maybe we need our own ‘union’.

Re: NYS Law 7400 creating the Justice Center for the Protection of People with Special Needs


Those people who, like me, have had the misfortune of  having to represent themselves without a lawyer (pro se) in court, can tell by scanning through the new NYS bill purporting to ‘protect’ the “people with special needs” that it is simply more bureaucracy on top of old bureaucracy. Actually, the new bill makes it MORE DIFFICULT for these “people with special needs” to protect themselves. This NYS senate bill 7400 is basically a bill of rights FOR THE PERPETRATOR.

Again, I’m not a lawyer or anything of the sort, I’m simply expressing my opinions. But don’t take them as correct;  go ahead, read the new law! That’s a challenge, my friends, literally. It’s a challenge because the bill will challenge your ulcers, so to speak.
THE MOTHER OF ALL LOOPHOLES

Loopholes are the bread and butter of those who lobby our politicians. Lobbyists either draft the bills they want for their professional gains and give them to our lawmakers to sign, or lobby to draft loopholes in the bill if it is being created to control them. Well, you tell me if this is not like the mother-of-all-loopholes:

there shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person on account of participating in good faith and with reasonable care in the communication of information in the possession of such person to an incident management committee, or on account of any recommendation or evaluation regarding the conduct or practices of any agent of a facility or provider agency.

The first loophole is in these words: good faith and reasonable care. Do you have any idea of how DIFFICULT it is for advocates (forget for the pro se!) to prove that a perpetrator, in any situation, but more so in mental health systems, acted NOT with good faith  and such perpetrator was ‘unreasonable’ in his/her professional behavior? The opposite of the legal concepts of good faith and reasonable care are ‘malice‘ and ”negligence‘. Well, good luck in trying to prove that a provider’s actions of ignoring an ongoing abuse in his/her facility was nothing but ‘unreasonable care’.

According to this bill, to convince the judge to accept to take a look at your complain, you first must PROVE to the judge that the provider was reckless and negligent. Otherwise, the case will be thrown out because this law states that you have NO CAUSE OF ACTION against a provider whose ‘errors’ are expected as part of the risks of the profession. In other words, instead of having a case to prove that there was negligence, you must prove that there was negligence to have the case heard in the first place.

The second loophole is in the fact that if the provider ‘misinforms’ the ‘investigating committee’ you have to prove that it was intentional. In other words, this bill tells you that from the outset you have no cause of action for damages, and that it is YOUR duty to prove that the information that should have been in a report but isn’t (or was misleading), was intentionally unreported.

I understand that people should be ‘innocent until proven guilty’, but the problem with this bill is that it TAKES AWAY YOUR RIGHT TO TRY TO PROVE YOUR CASE. You are simply being barred from court. Before this law, you could go and try to prove that there was negligence. Now you have to prove that you have a right to try to prove that you have a case. And the parts about ‘no cause of action for damages’ and ‘no monetary liability’ guarantees that hardly any private lawyer will take your case even if s/he can prove real damages.

Yeap, the new bill is protecting someone who is not you. Guess whom it is protecting?