(originally published by Metroland, Volume 31 - Number 24 - June 12, 2008)
As Watervliet tackles quality-of-life issues with new apartment-inspection and -occupancy policies, some worry that struggling families will lose out
The Smiths, a family of six and lifelong Watervlietians, had been living in the same apartment since 2001 when, in 2006, they were ordered to vacate. The family’s youngest child was born while they lived in that apartment, and was still in diapers when Mrs. Smith went to court, along with eight other families in June 2006, to contest her city-ordered eviction. Under a recently enacted policy shift, the family’s three-bedroom apartment had received a certificate of occupancy for only three people.
The two oldest boys shared bunk beds, a younger boy had his own room, and the baby’s bassinette was in his parents’ room—a room the Smiths (whose names have been changed at their request) were told should have been a living room, because the apartment was too small for them. They were told that the residential-occupancy formula dictates that, based on the number of occupants, they also needed a dining room and that they couldn’t have bunk beds unless that bedroom was a minimum of 140 square feet.
“What’s the purpose of having bunk beds at 140 square feet?” Mrs. Smith asks.
Mr. Smith adds, “I made my father finally understand the whole thing by telling him that, with this new rule—the bedroom that my brother and I shared without a problem—my parents would’ve had to uproot and move us someplace else. I lived there my entire childhood.”
While their old apartment was too small according to the city law, they contend that’s not the real reason they were forced to leave.
“We were one of the first families to be, I want to say, ‘target houses.’ There were houses that they targeted and got done first,” says Mrs. Smith. She believes that it was the tenants who lived upstairs that caught the attention of a neighbor who works in the city’s building department. “They smoked pot on the back porch,” says Smith. “The mother was never home. Every other word was the F-bomb. The kids didn’t go to school and [the city-employed neighbor] wanted them gone. They pretty much said it.”
“I hate to say it, but there are a lot of slumlords out there. They just want the almighty buck and don’t care, but my problem with that is: Go after the landlord, don’t come after me. I’m faithful. I pay my rent. I just want some place where I can rest my head at night and have no worries about that.”
The Smiths were luckier than the other families who went to court in June; they were allowed to stay through the life of their lease—an extra six months—but had to be out by the end of the year. Other families with no such contract, says Smith, were warned that they had 30 days to vacate their apartments or face forcible eviction, courtesy of the Albany County Sheriff’s department.
‘This program can change the face of the city,” says Watervliet Building Department Supervisor Mark Gilchrist. “In another two to three years, after we’ve gone through the cycle once or twice, there will be a visible difference in the quality of life.”
Local officials believe that the Arsenal City is ripe for revitalization. The new mayoral administration of Michael Manning, elected last November, has no shortage of ideas, though some of the steps currently being taken were initiated under the former mayor, and arguably have the most significant impact on residents. In 2006, the city enacted a policy that requires landlords to have non-owner-occupied units inspected at least every three years and, if vacant, before they are rented to new tenants. Further, the policy adopted New York state code to require that apartments be inspected for occupancy limits, to determine how many people are legally allowed to live in the unit based on floor space. For decades, some of the city’s largest rental properties have been cut into smaller units to capitalize on rental income.
City officials maintain that the policy change ultimately will improve the quality of life for residents—both for renters who live in substandard conditions and for the homeowners whose property values suffer from neighborhood blight. However, critics say that these housing regulations ultimately leave the least-advantaged families to shoulder the heaviest burden in the form of increased rent and even displacement from their homes. The costs of bringing old housing up to current building standards can be staggering if major repairs or updates are needed to the electrical system or the building foundation. Couple those repair costs with increases in property taxes as well as service fees such as water, sewer and trash collection, and it’s easy to understand that those expenses will trickle down to tenants.
And in a city with an abundance of rental property, critics charge, the occupancy regulations have made it more difficult for large families to find apartments that are both legally suitable and affordable, leaving some to jump from apartment to apartment, or even to split up their household.
“The reason for this program is the lack of property maintenance by property owners,” says Gilchrist. Inspections for basic building code enforcement include inspection of the electric systems and foundation, and checks for water damage, broken windows, excessive garbage or debris, and placement of smoke detectors. Code is code. An apartment either passes or fails. Landlords are given sufficient time to address violations and bring the apartment into compliance.
“There are a lot of people who own property in inner cities who do not seem to care too much about the condition of their property,” he explains, “people who don’t cut their grass, people who have junk cars on the property, people whose property needs paint on the outside of the building. This program helps to enforce those rules and regulations. It forces them to improve property, or weeds them out. Perhaps they decide to sell and invest in some other community that is not keeping so close an eye on them.”
However, he says, two years into the program, the city is still far from its goal. He estimates that there are approximately 2,500 rental units that remain uninspected.
“It’s a big undertaking,” says Gilchrist. It’s unlikely that his office will be able to inspect all those properties within the timeframe established by the policy change. “Will we get into every apartment within the three years required by law? No. I doubt it.”
The most complicated—and contentious—prong of the policy change is the inspection for occupancy. Residential occupancy is determined using a formula devised by the state Real Property Maintenance code, drafted by the Department of State. The formula is a ratio based on the square footage of the bedrooms in relation to the square footage of the rest of the living space. For a room to be a legal bedroom, it must have a window, a closet, two electrical outlets, and a minimum of 70 square feet (140 square feet for bunk beds). If an apartment doesn’t have any legal bedrooms, it is considered an “efficiency” apartment, and the number of tenants is then based on “clear floor area.”
“We don’t tell people where they can sleep, but the number of people is controlled by this clear floor area,” says Gilchrist, who admits that he and his building inspector, Steve Hoffman, don’t always see eye-to-eye on the way the calculations are done: whether closets should be included in the floor-space measurements of a bedroom, for instance.
Once an apartment passes the code inspection and is measured for residential occupancy requirements, the city tells the landlord how many occupants are allowed. The certificate of occupancy and residential occupancy permit cost the landlord $30. According to Gilchrist, missed inspection appointments cost the landlord $20 per unit. Last year, the city collected more than $10,000 dollars in fines for code violations related to residential permit inspections.
Gilchrist, without any hard data at hand, estimates that about a half-dozen families were displaced due to CO/ROP requirements in 2007. He estimates that number was about the same for 2006, when the city began to inspect problem units. He is waiting for new software, which is being custom-developed for the city, to help track the work of the building department.
“It can be difficult for large families to find appropriate-sized apartments so that they can meet the legal occupancy size limits,” Gilchrist says. “I don’t have an answer for those families.”
“You’d like to be able to work with people because you don’t want to displace anybody,” says Mayor Manning. “You’d like to accommodate someone, but you also want someone living safely. We try and look at the big picture.”
Has the shift in policy enforcement caused families to simply uproot and leave Watervliet all together?
“If it’s happened, it’s only been a few, which is maybe a few too many,” allows Gilchrist, “but I just don’t know. Sometimes they move to other apartments in Watervliet, bigger ones. Sometimes they move into other apartments where no CO has been obtained.”
“As you move problem tenants out of one apartment, what’s to stop them from going two blocks down and starting over again?” asks Manning rhetorically, acknowledging the issue with tracking repeat offenders. “There’s a revolving door inside Watervliet and between Watervliet, Cohoes, Troy and Albany.”
How do you track the problem tenants? Can you track them? “Is that the type of information that can be shared, or is it private?” he asks. “You have boundaries of public information.”
Gilchrist takes a piece of paper from his overflowing desk and holds it up—a residential occupancy permit, a form with a hand-written address, four names and their respective social security numbers. A family of five or six was living in a four-person apartment before the policy changed. The inspection came, and they had to vacate due to overcrowding.
“They moved into another apartment right over here on 16th Street,” Gilchrist says. “They told us that there were four people. There are really six people living there. Positive of it. They admitted to it. So they’ve got to get out. They knew the rules.”
“It’s difficult to do that,” says Gilchrist, pausing, “but it’s the law.”
Mrs. Smith describes the difficulty of finding a new apartment that could legally fit the size of her family as a “pure hell.”
“What I could find that was big enough I couldn’t afford. I couldn’t afford over $1,000 a month. The taxes had just gone up. There was one for $1,500! Where do you get off charging $1,500 in the city of Watervliet?”
The Smiths, having no place to go after rejected appeals to city officials, split up to survive. The three older boys went to stay with their grandparents. Mr. and Mrs. Smith and their youngest boy, in desperation, took a studio apartment for $350 a month that could comfortably accommodate no more than one adult.
“Five days after Christmas,” she says. “You know what that was like? The crying? Thinking you’re going here and they’re going there? Obviously, Christmas sucked.”
Mrs. Smith kept her clothes and personal effects in a storage tote in the closet so there would be no sign of her staying in the apartment when and if the inspector came to call. The three of them stayed in the small studio for an entire year.
“That was a year of pure hell,” she says. “Not having your children there with you. I mean holidays, birthdays, we’re not in the same house. We were all separated. You got this one living here, this one living here, this one living here, and here we are in this studio apartment, sleeping on a couch and a blow-up bed. Where are you gonna go? Out of the frying pan and into the fire.”
Smith looks to her youngest son, who bounces on a couch while watching television. “If they were doing this, they should’ve had more resources out there and not just said to families, ‘Ok, you’ve got 30 days, get out.’”
But that was then. Last year, a friend of the family purchased a two-family home and leased the place to the Smiths for $750 a month. The kicker? Even their newest apartment is still too small for the family—technically speaking. And anything bigger, Mrs. Smith complains, is simply not affordable in the rental market.
Two of the four boys still stay primarily with different sets of grandparents—a practice that Mrs. Smith was told would be reported to Child Protective Services if city officials found out. But all four boys are healthy and excelling in school, she says, and the arrangement is more comfortable overall.
Sure, Smith says, they thought about packing and up and moving to a different city. However, she says, “This is where we grew up. This is where I want my kids to grow up. Our family is here. Why should we have to leave?”
The Smiths claim that they were able to circumvent the CO/ROP inspection to stay in that cramped studio based solely on the surname of the landlord involved. They charge that the owner of that property is related to a city worker who assisted in fingering so-called target houses, and that based on nepotism, “some people can get away with it while others can’t.” Favoritism is a difficult but common charge in a small city such as Watervliet. With its population of 10,200 residents compacted into 1.4 square miles, people inevitably end up in each other’s business.
“I heard from people who said they were grandfathered in because they lived there for so long,” she says. “And I’m like, ‘How could you be? I went to court myself and begged.’”
City officials acknowledge that some families are grandfathered in and allowed to stay in their homes as long as there are no code violations that jeopardize safety and the apartment is not “grossly overoccupied”—a phrase construed by some as arbitrary.
“We’re not grandfathering ones that are grossly overoccupied,” says Manning. “It’s an important component as to why we feel that grandfathering is OK, because we’re not letting major violations slide. If we get a call that the place is overoccupied, then we’re sending people.”
“It’s all about health, safety and welfare,” agrees Gilchrist.
‘If there’s an issue with what’s going on, it’s applying modern building-code standards to 100-year-old buildings, whether they’ve been modified or not,” says Manning. “Some of these updates are not simple, and if you’re not a contractor or handyman then you’ve got to pay someone to do it.”
The age of the home is a major factor in the costs of such mandatory updates. Eighty percent of the housing stock in the historic inner city of Watervliet was built prior to 1940. Electrical updates, which require a professional or skilled handyman, can be the most costly.
Manning, coming off the heels of starting a business council, suggested the formation of a landlord council after multiple-property owner Italo DiFebbo approached him with concerns that the rental market can absorb only so much of the renewal costs before they pass down to tenants. Manning continues, “At some point, [DiFebbo] is concerned that you price yourself out.”
“We have to recognize that, in Watervliet, we have a lot of multifamily homes, which means we have a lot of rentals, which means we have a lot of landlords here,” says Manning. “So it’s a big part of our constituency. As far as revitalization, we don’t really have a lot of industry here—we have almost none—so we are a place where people live. That virtually is our industry. We’ve got to protect that.”
DiFebbo, a North Greenbush resident, is one of the largest property owners in Watervliet, investing in eight buildings since 2003. With upwards of 20 units in the city, DiFebbo considers himself an expert in code, especially after spending nearly $100,000 to bring his apartments into compliance. Still, he feels that this policy change is the best thing the city has done to combat the crime and quality-of-life issues that are exacerbated by neglectful landlords and overcrowding.
“It raises the quality. Everything is more controlled,” says DiFebbo, who looks forward to
reaping a return on his investment. “What’s my benefit? Better quality people and better rent.”
But compounded by the added costs of meeting code requirements with property tax increases, changes in the scheduled collection of those taxes, water and sewer bills that have jumped three times in 18 months, and increased fees for garbage collection, the pressure on landlords to raise the rent is undeniable.
“In the end, who is going to pay for it?” asks DiFebbo rhetorically. “The tenant.”
Thursday, July 10, 2008
D Is for Dizzying
(originally published by Metroland, Volume 30 - Number 49 - December 6, 2007)
It’s the Medicare Part D shopping season, and many senior citizens are frustrated by a prescription-drug program that some say was designed to confuse and exploit them
“Good afternoon, Crestwood Pharmacy,” said Jagat Patel as he answered a phone that never seemed to stop ringing. Christmas music played from a radio atop a small refrigerator stocked with pharmaceuticals. This time of year is a busy one for Patel, owner of the Albany pharmacy. Open enrollment for the Medicare Part D prescription-drug-benefit program began on Nov. 15 and runs until Dec. 31. Patel told Metroland that his store has been receiving calls from dozens of customers who are seeking more than just his assistance filling their prescriptions—they are asking for his help in selecting the right prescription-drug plan.
Part D, which went into effect Jan. 1, 2006, offers its recipients a dizzying array of 50-plus prescription-drug plans provided by private companies. Each plan may have two or three options sporting different lists of covered drugs and different out-of-pocket costs. This proves confusing to many recipients, mostly senior citizens, who have turned to Patel and other pharmacists for help with deciphering which plans might work best for them—one reason why the phone at Crestwood Pharmacy is rarely silent.
“It’s a challenge to figure out which plan is the best one for a particular person, especially nowadays with these new drugs, new generics coming out,” said Patel. “It all should be the same anywhere they go. Now you have discrepancies: Why should one plan be better than the other as far as coverage? Why should one company charge higher premiums than the other?”
It makes no sense, many critics agree, that Medicare Part D offers so many choices. At least, it makes no sense if Part D had been designed to help the recipients. As Michael Burgess, director of New York State Office for the Aging argued, this is not the case.
“This Medicare Part D was written for the benefit of those who wanted to sell [drugs], rather than for those that have to buy,” said Burgess. “That’s why it’s so difficult for the senior; it wasn’t written for them.” It was written, he continued, to create a free market for the drug companies. “That’s why we have 55 plans.”
The New York State Office for the Aging operates a toll-free hotline to assist New Yorkers with any health-insurance questions they may have. Call volume, Burgess said, has tripled since the Medicare open-enrollment period began. The agency was handling 60 to 80 calls a day; now that number has skyrocketed to 200 to 300 calls, even hitting the 400 mark a few days this year.
Even if a senior is satisfied with their drug coverage, the premiums are increasing for 2008. The Center for Economic and Policy Research issued a report last week that highlighted the increase in premiums for Part D plans across the nation. New York ranked fourth in the country with an average 22.35-percent increase.
“We call it ‘bait-and-inflate,’ ” said Burgess. “They got the people in, and now they’re raising the premium.”
As an example, the Humana Standard plan started out with a $4.10 monthly premium in 2006.
Now in 2008, clients can expect the same plan to cost $29.60 a month.
“Humana started out at a low premium because they wanted to get a lot people to join their Medicare Part D plan,” said Burgess. After securing that customer base, he said, “We’re seeing what’s happened.”
Further, Part D plans have developed a unique phenomenon, known as “the doughnut hole,” in which recipients can get stuck with unwieldy drug expenses. Under Part D plans, drug coverage extends to $2,500. After that, recipients are responsible for the next $3,000 of expenses before they can qualify for “catastrophic coverage” and their drug benefits kick back in. Some plans have a smaller gap in coverage, but the trade-off is a higher monthly premium.
“As confusing as it is to you and I, imagine the seniors that are all of the sudden put into a situation where they have to make a decision which they know nothing about,” Patel said. He said that he has seen the effects of stress on the health on his clientele manifested in anxiety and high blood pressure. “I don’t think as a health-care system we’re moving in the right direction. We’re actually moving in the opposite direction from where we want to go.”
Burgess said that he would support a standardization of plans, such as EPIC, the drug program offered to New York’s lowest-income seniors. He wrote a letter earlier this year to the New York congressional delegation calling for standardization of drug plans, which directed attention to some dubious sales and marketing tactics employed by some of the private companies selling Part D drug plans, but he doesn’t expect any changes to the program until the national political climate has shifted. Even if a proposal passes Congress, he said, that legislation would likely just be vetoed by President George Bush.
“We’re not satisfied with the notion that because we have to have choice and free enterprise that you can confuse people to the point of frustration,” said Burgess, “It’s like walking into a supermarket and having 55 choices for toothpaste, you finally just take one and leave.”
Approximately 133,000 Medicare beneficiaries live in Albany, Rensselaer, Schenectady and Saratoga counties combined.
It’s the Medicare Part D shopping season, and many senior citizens are frustrated by a prescription-drug program that some say was designed to confuse and exploit them
“Good afternoon, Crestwood Pharmacy,” said Jagat Patel as he answered a phone that never seemed to stop ringing. Christmas music played from a radio atop a small refrigerator stocked with pharmaceuticals. This time of year is a busy one for Patel, owner of the Albany pharmacy. Open enrollment for the Medicare Part D prescription-drug-benefit program began on Nov. 15 and runs until Dec. 31. Patel told Metroland that his store has been receiving calls from dozens of customers who are seeking more than just his assistance filling their prescriptions—they are asking for his help in selecting the right prescription-drug plan.
Part D, which went into effect Jan. 1, 2006, offers its recipients a dizzying array of 50-plus prescription-drug plans provided by private companies. Each plan may have two or three options sporting different lists of covered drugs and different out-of-pocket costs. This proves confusing to many recipients, mostly senior citizens, who have turned to Patel and other pharmacists for help with deciphering which plans might work best for them—one reason why the phone at Crestwood Pharmacy is rarely silent.
“It’s a challenge to figure out which plan is the best one for a particular person, especially nowadays with these new drugs, new generics coming out,” said Patel. “It all should be the same anywhere they go. Now you have discrepancies: Why should one plan be better than the other as far as coverage? Why should one company charge higher premiums than the other?”
It makes no sense, many critics agree, that Medicare Part D offers so many choices. At least, it makes no sense if Part D had been designed to help the recipients. As Michael Burgess, director of New York State Office for the Aging argued, this is not the case.
“This Medicare Part D was written for the benefit of those who wanted to sell [drugs], rather than for those that have to buy,” said Burgess. “That’s why it’s so difficult for the senior; it wasn’t written for them.” It was written, he continued, to create a free market for the drug companies. “That’s why we have 55 plans.”
The New York State Office for the Aging operates a toll-free hotline to assist New Yorkers with any health-insurance questions they may have. Call volume, Burgess said, has tripled since the Medicare open-enrollment period began. The agency was handling 60 to 80 calls a day; now that number has skyrocketed to 200 to 300 calls, even hitting the 400 mark a few days this year.
Even if a senior is satisfied with their drug coverage, the premiums are increasing for 2008. The Center for Economic and Policy Research issued a report last week that highlighted the increase in premiums for Part D plans across the nation. New York ranked fourth in the country with an average 22.35-percent increase.
“We call it ‘bait-and-inflate,’ ” said Burgess. “They got the people in, and now they’re raising the premium.”
As an example, the Humana Standard plan started out with a $4.10 monthly premium in 2006.
Now in 2008, clients can expect the same plan to cost $29.60 a month.
“Humana started out at a low premium because they wanted to get a lot people to join their Medicare Part D plan,” said Burgess. After securing that customer base, he said, “We’re seeing what’s happened.”
Further, Part D plans have developed a unique phenomenon, known as “the doughnut hole,” in which recipients can get stuck with unwieldy drug expenses. Under Part D plans, drug coverage extends to $2,500. After that, recipients are responsible for the next $3,000 of expenses before they can qualify for “catastrophic coverage” and their drug benefits kick back in. Some plans have a smaller gap in coverage, but the trade-off is a higher monthly premium.
“As confusing as it is to you and I, imagine the seniors that are all of the sudden put into a situation where they have to make a decision which they know nothing about,” Patel said. He said that he has seen the effects of stress on the health on his clientele manifested in anxiety and high blood pressure. “I don’t think as a health-care system we’re moving in the right direction. We’re actually moving in the opposite direction from where we want to go.”
Burgess said that he would support a standardization of plans, such as EPIC, the drug program offered to New York’s lowest-income seniors. He wrote a letter earlier this year to the New York congressional delegation calling for standardization of drug plans, which directed attention to some dubious sales and marketing tactics employed by some of the private companies selling Part D drug plans, but he doesn’t expect any changes to the program until the national political climate has shifted. Even if a proposal passes Congress, he said, that legislation would likely just be vetoed by President George Bush.
“We’re not satisfied with the notion that because we have to have choice and free enterprise that you can confuse people to the point of frustration,” said Burgess, “It’s like walking into a supermarket and having 55 choices for toothpaste, you finally just take one and leave.”
Approximately 133,000 Medicare beneficiaries live in Albany, Rensselaer, Schenectady and Saratoga counties combined.
As Good As It Gets?
(originally published by Metroland, Volume 30 - Number 43 - October 25, 2007)
The conditions that led to Jonathan Carey’s death are symptoms of larger systemic problems within the mental-health industry, unresolved by his law or the conviction of his killer
The morning sun makes Michael Carey squint as he speaks to the crowd: “You have to address the problems if you want to see any changes come about, and that’s what we’re going to do with the top levels of authority in the state. We’re gonna see it happen. We’re gonna make it much safer.”
About 300 people have gathered at Elm Avenue Park in Bethlehem on a September Saturday to listen while Carey—sometimes choking with emotion—speaks of his son’s life and of the goals of the Jonathan Carey Foundation, at this, its first walkathon fundraiser. About 15 to 20 of the volunteers are members of the Careys’ church, and participants are a mix of friends and family, but there are many unfamiliar faces as well. Marchers are invited for lunch and refreshments after the two-and-a-half mile walk. The pavilion fills with participants who sit down to a lunch donated by local businesses.
“It was incredible,” Carey later tells Metroland. With a throng of supporters marching behind him, “I looked back, and was just in awe. The string looked like it was a quarter-mile long; they were stretched out a little bit but, boy, it was just really—wow.”
Earlier this year, Carey’s son Jonathan died while in the care of two direct-care workers from the O.D. Heck Developmental Center in Niskayuna, a facility administered by the state. The 13-year-old was on a supervised outing when he suffocated after being restrained by one of the employees. The two workers drove around for an additional hour and a half before seeking medical attention for Jonathan. The incident whipped up a maelstrom of media frenzy, and less than 90 days after Carey’s death, Gov. Eliot Spitzer had signed Jonathan’s Law.
The New York state Senate Committee on Mental Health and Developmental Disabilities called a special hearing to evaluate the use of restraints, training, and communication at facilities run and licensed by the state Office of Mental Retardation and Developmental Disabilities. OMRDD oversees service to approximately 140,000 consumers statewide. About 1,500 are served via state-operated developmental centers like O.D. Heck.
Michael and Lisa Carey, OMRDD Commissioner Diana Jones Ritter, Commission on Quality of Care and Advocacy for Persons with Disabilities chair Gary O’Brien, and New York State Association of Retarded Citizens executive director Marc Brandt are among those who provided testimony on the use of restraint, communication with parents and guardians, inconsistencies in training across various state agencies, a need for psychological profiling of direct-care workers, and the effect of fatigue and overtime on quality of care.
The Careys had been fighting for years with state agencies to obtain access to records related to their son’s treatment at the Anderson School, a private facility in Dutchess County. Thanks in part to the intense media attention, state lawmakers passed legislation that enables parents and legal guardians to obtain such records. The law mandates that parents or other qualified individuals, such as legal guardians, must be notified by telephone of incidents within 24 hours or the facility will be subject to fines.
The legislation also mandates that facilities must provide a redacted incident report, meet with the parents, and provide written reports of actions taken in response to the incidents. It also grants parents or other qualified individuals access to redacted records and documents pertaining to allegations and investigations into patient abuse or mistreatment.
Jonathan’s Law also established a mental-hygiene task force, which, according to the legislation, is charged with “identifying the records and reports that are produced with respect to each patient receiving care and treatment in a mental hygiene facility or program, examine current disclosure practices with regard to these materials, and determine whether improved access to these materials should be legislated. . . . In addition, the task force shall identify alternative means of sharing information with parents and legal guardians, such as regular telephone calls or meetings.”
Jonathan’s Law was amended in July because, as the state interpreted the legislation, the boy’s treatment records from the Anderson School would not have been available to his parents, since the records were dated before the legislation was signed. To date, neither the task-force report nor the pamphlet disseminating the rights of parents and guardians has been made available, and the window of retroactivity for Jonathan’s Law is quickly coming to a close, expiring on Dec. 31, 2007.
While Jonathan’s Law enables parents and qualified individuals to more closely monitor the care their child is receiving, critics say it is completely reactive. Jonathan’s Law specifically addresses the availability of information after an incident takes place; critics point out that the law does nothing to address what causes these incidents in the first place.
Michael and Lisa Carey are no strangers to news cameras. Since Jonathan’s death, Michael Carey says that he’s become a magnet for insiders who have complaints about both state and nonprofit facilities but are reluctant to contact authorities.
“So many people are afraid to come forward, and it’s because they either want to stay in their job, they need their job for the benefits, or they’re afraid if they get fired they won’t be able to get another job in the field,” he says. “Maybe they love the field, so sometimes they’re compromising in a way, but in another way, they want to do something.”
“I began to hate to hear the words ‘Let it go,’ ” says Marie Haley. “I was told to let it go so many times.”
Haley didn’t have to worry about losing her job anymore when she contacted Michael Carey.
She had known the Careys previously; they were members of the same church in Delmar before Haley and her husband moved to Schoharie. She was one of the few people who would take Jonathan and walk with him during church services to give the Careys some respite. She remembers that the nonverbal Jonathan would slap his open hands on her belly to say “hello.”
Haley rose in the ranks from direct-care worker to assistant manager in the residential program in her eight months at Schoharie County chapter of the Association for Retarded Citizens. A few months later, she became senior manager, supervising about 20 direct-care workers in two residential houses. She decided to call it quits in July of this year, after more than two years of employment with ARC, citing a general disregard by the administration toward quality-of-care concerns.
During her time with Schoharie ARC, Haley alleges that she made numerous complaints to her supervisors, most of which were ignored.
Haley claims that some of the recurring problems with her direct-care staff included sleeping during overnight shifts, temper and aggression issues with “consumers” (the preferred industry term for mental-health-service clients), falsifying time sheets, theft, drinking alcohol and more. She says that her supervisor told her that ARC couldn’t risk losing staff by being overly critical because “this is as good as it gets.”
Supervision, especially during night shifts, Haley says, was so lax that employees were able to get away with too much. “They couldn’t work in Wal-Mart and get away with what they get away with in the ARC.”
Haley approached her supervisor about an employee who was temperamental. When confronted about her job, the worker told Haley to “get her head out of her ass.” Haley’s supervisor told her to use a behavior plan to address the employee’s attitude. “The same kind of thing I would use with a retarded person,” says Haley, who claims that her superior even went so far as to name a consumer in the house and suggest Haley implement that person’s plan.
“That would be inappropriate,” said Anthony Alvarez, CEO of Schoharie County ARC since 1989. Alvarez emphasizes that it would be wrong for anyone in his facility to suggest the use of a consumer’s behavior plan to aid a direct-care worker with emotional issues, but did not refute that it happened.
Not only did it happen, Haley contends, she even discussed the issue with a person who she describes as “pretty high up there, the quality-assurance person right under Alvarez.”
“She didn’t have much to say about it,” Haley says.
Haley looks physically upset when describing an accident involving a consumer. Usually her staff will call her at home if they have a problem, so when she called in late one morning and the person at the desk said that a consumer had fallen and may need to see a doctor, Haley became suspicious. She dropped everything, she says, jumped in her car, and went straight to the residential house.
“It was horrible. You can’t imagine what happened.” Haley leans in and lowers her voice, “It was like something out of CSI.”
She describes how a consumer had gotten herself out of bed in the middle of the night, unsupervised, and fallen down a flight of stairs. “She had taken a fire-extinguisher off the wall with her face.”
Somehow the woman got herself back into her bedroom and put herself to bed, still bleeding.
“Nobody heard her fall,” Haley says. “The staff couldn’t tell me anything.” Two staff members on duty had claimed that they didn’t know the consumer fell because they were taking a cigarette break together.
Haley filed a 147 Report form for the incident because she was the one who dealt with the issue. This is standard procedure. Such reports are supposed to be sent from the facility to the Commission on Quality of Care and Advocacy for Persons with Disability (CQC), and the CQC is charged with reviewing the internal investigation report.
There are basically two kinds of reports, one for a standard incident and the other for an incident that directly alleges abuse. A woman falling down the stairs, even if a result of staff negligence, does not constitute an act of abuse as defined in social-services law, a definition that Michael Carey and other critics feel is too specific and actually violates the threshold of endangering the welfare of a child.
After review of the internal investigation report provided by the facility, the CQC makes binary recommendations of either “indication” or “unfounding.” This means that unless a claim shows enough evidence of abuse to be indictable, it is unfounded and the records are sealed. The CQC often will follow up with a care-and-treatment investigation.
In 2006, according to testimony in a state Senate hearing after Jonathan Carey’s death, the CQC recommended “unfounding” in 95 percent of all incidents.
Alvarez explains the reporting process: Once an employee files a report, the appropriate state oversight agencies are notified. Unless an anonymous claim is made, he assumes, whoever initially filed the report would be contacted by the state watchdog agency as part of the investigation.
Haley says that she was never contacted by CQC investigators, and because of the highly confidential nature of CQC investigative actions, it is not possible to know if the claim ever made it from Schoharie County ARC to the state players.
Haley is critical of the internal investigation, alleging that it didn’t go far enough, claiming that another staff member told her that the two on duty had been smoking marijuana at the time the consumer fell.
“When I walked in, and I saw that woman, how she looked that night, I realized all they care about is themselves and their jobs,” she says. The consumer was eating breakfast, bleeding into her bowl of cereal.
Ultimately, a memo was issued prohibiting staff from taking breaks together, and those two workers were fired. But Haley says they bagged up the linens, cleaned the blood off the walls and even tried to shower the consumer who fell before initiating medical attention. These actions and the allegations of drug use make her believe the incident bordered on criminal and the authorities should have been involved in a broader investigation. Since this incident wasn’t deemed “abuse,” the two fired staff members were free to work at another nonprofit.
Upon her resignation, Haley called and left three messages for Alvarez, none of which was returned.
Alvarez says that he did not call Haley back because “the accusations, the allegations she was making at that point had been investigated, and any recommendations coming out of those investigations were implemented.” Alvarez insists that not only are all complaints investigated appropriately but that Haley would have had access to all the support she needed in working with her direct-care staff.
“They did not want to hear it. They did not want to hear my concerns,” Haley says. “They work very hard to make it look good on the outside. They try to showcase and there is stuff that’s going on that’s good; they have good employees but it’s too small a percentage.”
“There needs to be more expected of people,” Haley says. “They got away with way too much, and then when something really bad would happen, ‘Off with your head!’ ”
Each ARC chapter operates under its own budget, and the NYSARC state umbrella entity normally makes no financial contribution. Schoharie ARC, which serves 108 consumers in residential programs, is funded by an amalgam of public money, with Medicaid as a top contributor at about 75 percent and the remainder coming from state vocational and workshop programs. According to its 2005 IRS 990 filing, Schoharie ARC’s total program service revenue exceeded $9.7 million.
“The job starts at $9.27 an hour. You can get a job at Taco Bell for $10 an hour, so I think maybe you get Taco Bell quality people working for you,” says Joey Berben, a Family Support Advocate for Rensselaer County Association for Retarded Citizens. Berben, a front-line direct-care worker, works in a higher functioning house than Jonathan Carey would have been placed. The consumers Berben works with are verbal. They live in their own apartments and often hold jobs.
“You want to hire quality people, but they don’t come as often,” the 22-year-old Berben says.
“We’re always shorthanded, we’re always hiring.”
Berben was delivering pizzas for a living but had to find different work after a car accident. He would have never considered a position with the Rensselaer ARC if not for a friend who coaxed him to give it a try. At first he recoiled from the idea of having to shower people or help them go to the bathroom, but says that he has grown to love it and now wants to turn that job into a career.
Motivated by employee-incentive programs and tuition assistance, he can see opportunities for growth in his two years at Rensselaer ARC. These programs help him to feel like he’s working toward something in addition to genuinely enjoying the company of his consumers, whom Berben has come to regard as family.
“Maybe I’m not making a whole lot of money,” he says. “I feel like I can make the same amount of money and work in retail somewhere or in a restaurant, or I can have a job that is rewarding on multiple levels.”
Berben works the second shift, from 11 AM to 7 PM. Some of his tasks include taking consumers to the grocery store, to lunch, to school, work or out to the movies. Berben also administers medication when necessary.
“I do feel like a lot of organizations take certain blame for things when a lot of things are out of their control,” says Berben. “I feel like it’s kind of hard to control personal individuals when there are so many people working in an agency.” It can be exhausting work, and that exhaustion can easily be translated into a dangerous situation if not checked.
Perhaps this is what led to Jonathan Carey’s death: a dangerous situation arose from an employee exhausted by working too much in such a high-stress field.
“Ed Tirado was working his tenth double-shift in a row the night he killed Jonathan! It’s unheard of!” exclaims Michael Carey. “Eight hours with one autistic kid is more than enough, and then to work 16 hours a day, day after day after day after day? And I’ve asked the commissioner [of OMRDD] and the governor’s office to do something right away, and here it is, seven months after Jonathan’s passed on and to my knowledge there’s zero changes yet.”
(Edwin Tirado was convicted of manslaughter in the death of Carey and is scheduled for sentencing in December. The other worker, Nadeem Mall, is currently serving a six-month sentence after accepting a plea bargain in exchange for testimony against Tirado, the worker who actually applied the fatal, illegal restraint.)
According to the Times Union, Tirado ranked fourth for top overtime earners at O.D. Heck, and 18th among his 23,000 colleagues in all of OMRDD for 2006. He worked an additional 1,647 hours, roughly the equivalent of 44 weeks worth of overtime, last year. It is unclear how many of those overtime hours were considered mandatory.
These figures are extreme, and the issue of excessive overtime is currently under review by state Comptroller Thomas DiNapoli, but it is not the first time the Office of the State Comptroller has been critical of the Capital District Developmental Disabilities Services Office, the regional agency that oversees operations at O.D. Heck. In reports from 2001 and 2005, audits by the state comptroller’s office revealed problematic payroll management in the form of excessive overtime.
In both cases the Capital District DDSO response was that overtime practices would be reviewed, but pointed out that the district stayed within the overall budget. The 2005 audit indicates that the Capital District DDSO habitually underestimated the overtime costs required to service its consumers. According to the 2005 report, for fiscal year 2004-05, Capital District DDSO budgeted $867,000 for overtime but actually spent $3,628,747. The comptroller’s report chastises that this is an expensive way to staff residences.
Says Carey: “I think it’s an issue of them not hiring enough people.”
“We stop the incidents by making people aware that they occur,” says New York state Assemblyman Harvey Weisenberg (D-Long Beach), who introduced Jonathan’s Law into the Assembly, “providing information so people can be made aware to advocate and correct the causes of these incidents from occurring.” Weisenberg’s background as a special-education teacher and his experience caring for his own developmentally disabled child make him a familiar advocate to New York’s mentally retarded and developmentally disabled community.
“The reality is if you’re short-staffed and overworked and something takes place, the responsibility and burden is on the administration to know who could and who should be there taking care or providing for people that they’re servicing,” says Weisenberg. “If somebody works ten days, double shifts, you can’t tell me that you’re not aware this guy is burnt out!”
“It’s a tough day. It’s a tough day. A lot of these are nonverbal, nonambulatory, it’s a physical job, it’s a mental job,” says Weisenberg, who has been working to advance legislation for years that would limit the number of consecutive hours that a direct care worker is allowed to work, but says these efforts have been stymied by OMH and OMRDD because of staffing issues. The unions, as well, have opposed the legislation because, they argue, the workers need to work double shifts just to support their families.
“It becomes a little bit of a double-edged sword out there because a lot of our members do like to get overtime and have the additional money that comes from working additional shifts, but what’s happening in some places is they kind of get excessive, mandated overtime that becomes somewhat counterproductive,” says Stephen Madarasz, spokesman for CSEA, one of the main labor unions organized by state employees.
“We have to pay people a decent salary for the most difficult job in the world,” Weisenberg says. “The most difficult task in the world is being able to care for another human being. We gotta pay them.”
“You need to pay a better wage to attract people to do the work and to keep them, because the real issue is the excessive turnover rate in the not-for-profit sector, and everybody acknowledges it. The not-for-profits acknowledge it, OMRDD acknowledges it, and we hear it from the workers.” Madarasz explains that the there is regular contact on an ongoing basis with nonunion members due to the interconnectivity of the community. “It’s symptomatic of the big issue that there just aren’t really enough people in place to cover the shifts on a 24/7 basis. That’s really what it is.”
Weisenberg believes that the key to cultivating a career-oriented permanent workforce is offering incentives—similar to those that Berben enjoys—not only by paying a living wage, but also educational opportunities.
“We should have college motivation and higher education to be able to develop caregivers and people that will work with human beings,” says Weisenberg, who wants to give college credits to people to volunteer in nursing homes and facilities. “That is very satisfying and gratifying, and if they make a decent salary maybe we can bring people into the field. We have to motivate an interest where people take care of people.”
“There are many stories to be told of the wrongdoing that has taken place because of inadequate staff and money to be able to provide what is necessary,” Weisenberg says. “It’s an awakening that we have an obligation in government to do the best that we can to provide what is necessary.”
The conditions that led to Jonathan Carey’s death are symptoms of larger systemic problems within the mental-health industry, unresolved by his law or the conviction of his killer
The morning sun makes Michael Carey squint as he speaks to the crowd: “You have to address the problems if you want to see any changes come about, and that’s what we’re going to do with the top levels of authority in the state. We’re gonna see it happen. We’re gonna make it much safer.”
About 300 people have gathered at Elm Avenue Park in Bethlehem on a September Saturday to listen while Carey—sometimes choking with emotion—speaks of his son’s life and of the goals of the Jonathan Carey Foundation, at this, its first walkathon fundraiser. About 15 to 20 of the volunteers are members of the Careys’ church, and participants are a mix of friends and family, but there are many unfamiliar faces as well. Marchers are invited for lunch and refreshments after the two-and-a-half mile walk. The pavilion fills with participants who sit down to a lunch donated by local businesses.
“It was incredible,” Carey later tells Metroland. With a throng of supporters marching behind him, “I looked back, and was just in awe. The string looked like it was a quarter-mile long; they were stretched out a little bit but, boy, it was just really—wow.”
Earlier this year, Carey’s son Jonathan died while in the care of two direct-care workers from the O.D. Heck Developmental Center in Niskayuna, a facility administered by the state. The 13-year-old was on a supervised outing when he suffocated after being restrained by one of the employees. The two workers drove around for an additional hour and a half before seeking medical attention for Jonathan. The incident whipped up a maelstrom of media frenzy, and less than 90 days after Carey’s death, Gov. Eliot Spitzer had signed Jonathan’s Law.
The New York state Senate Committee on Mental Health and Developmental Disabilities called a special hearing to evaluate the use of restraints, training, and communication at facilities run and licensed by the state Office of Mental Retardation and Developmental Disabilities. OMRDD oversees service to approximately 140,000 consumers statewide. About 1,500 are served via state-operated developmental centers like O.D. Heck.
Michael and Lisa Carey, OMRDD Commissioner Diana Jones Ritter, Commission on Quality of Care and Advocacy for Persons with Disabilities chair Gary O’Brien, and New York State Association of Retarded Citizens executive director Marc Brandt are among those who provided testimony on the use of restraint, communication with parents and guardians, inconsistencies in training across various state agencies, a need for psychological profiling of direct-care workers, and the effect of fatigue and overtime on quality of care.
The Careys had been fighting for years with state agencies to obtain access to records related to their son’s treatment at the Anderson School, a private facility in Dutchess County. Thanks in part to the intense media attention, state lawmakers passed legislation that enables parents and legal guardians to obtain such records. The law mandates that parents or other qualified individuals, such as legal guardians, must be notified by telephone of incidents within 24 hours or the facility will be subject to fines.
The legislation also mandates that facilities must provide a redacted incident report, meet with the parents, and provide written reports of actions taken in response to the incidents. It also grants parents or other qualified individuals access to redacted records and documents pertaining to allegations and investigations into patient abuse or mistreatment.
Jonathan’s Law also established a mental-hygiene task force, which, according to the legislation, is charged with “identifying the records and reports that are produced with respect to each patient receiving care and treatment in a mental hygiene facility or program, examine current disclosure practices with regard to these materials, and determine whether improved access to these materials should be legislated. . . . In addition, the task force shall identify alternative means of sharing information with parents and legal guardians, such as regular telephone calls or meetings.”
Jonathan’s Law was amended in July because, as the state interpreted the legislation, the boy’s treatment records from the Anderson School would not have been available to his parents, since the records were dated before the legislation was signed. To date, neither the task-force report nor the pamphlet disseminating the rights of parents and guardians has been made available, and the window of retroactivity for Jonathan’s Law is quickly coming to a close, expiring on Dec. 31, 2007.
While Jonathan’s Law enables parents and qualified individuals to more closely monitor the care their child is receiving, critics say it is completely reactive. Jonathan’s Law specifically addresses the availability of information after an incident takes place; critics point out that the law does nothing to address what causes these incidents in the first place.
Michael and Lisa Carey are no strangers to news cameras. Since Jonathan’s death, Michael Carey says that he’s become a magnet for insiders who have complaints about both state and nonprofit facilities but are reluctant to contact authorities.
“So many people are afraid to come forward, and it’s because they either want to stay in their job, they need their job for the benefits, or they’re afraid if they get fired they won’t be able to get another job in the field,” he says. “Maybe they love the field, so sometimes they’re compromising in a way, but in another way, they want to do something.”
“I began to hate to hear the words ‘Let it go,’ ” says Marie Haley. “I was told to let it go so many times.”
Haley didn’t have to worry about losing her job anymore when she contacted Michael Carey.
She had known the Careys previously; they were members of the same church in Delmar before Haley and her husband moved to Schoharie. She was one of the few people who would take Jonathan and walk with him during church services to give the Careys some respite. She remembers that the nonverbal Jonathan would slap his open hands on her belly to say “hello.”
Haley rose in the ranks from direct-care worker to assistant manager in the residential program in her eight months at Schoharie County chapter of the Association for Retarded Citizens. A few months later, she became senior manager, supervising about 20 direct-care workers in two residential houses. She decided to call it quits in July of this year, after more than two years of employment with ARC, citing a general disregard by the administration toward quality-of-care concerns.
During her time with Schoharie ARC, Haley alleges that she made numerous complaints to her supervisors, most of which were ignored.
Haley claims that some of the recurring problems with her direct-care staff included sleeping during overnight shifts, temper and aggression issues with “consumers” (the preferred industry term for mental-health-service clients), falsifying time sheets, theft, drinking alcohol and more. She says that her supervisor told her that ARC couldn’t risk losing staff by being overly critical because “this is as good as it gets.”
Supervision, especially during night shifts, Haley says, was so lax that employees were able to get away with too much. “They couldn’t work in Wal-Mart and get away with what they get away with in the ARC.”
Haley approached her supervisor about an employee who was temperamental. When confronted about her job, the worker told Haley to “get her head out of her ass.” Haley’s supervisor told her to use a behavior plan to address the employee’s attitude. “The same kind of thing I would use with a retarded person,” says Haley, who claims that her superior even went so far as to name a consumer in the house and suggest Haley implement that person’s plan.
“That would be inappropriate,” said Anthony Alvarez, CEO of Schoharie County ARC since 1989. Alvarez emphasizes that it would be wrong for anyone in his facility to suggest the use of a consumer’s behavior plan to aid a direct-care worker with emotional issues, but did not refute that it happened.
Not only did it happen, Haley contends, she even discussed the issue with a person who she describes as “pretty high up there, the quality-assurance person right under Alvarez.”
“She didn’t have much to say about it,” Haley says.
Haley looks physically upset when describing an accident involving a consumer. Usually her staff will call her at home if they have a problem, so when she called in late one morning and the person at the desk said that a consumer had fallen and may need to see a doctor, Haley became suspicious. She dropped everything, she says, jumped in her car, and went straight to the residential house.
“It was horrible. You can’t imagine what happened.” Haley leans in and lowers her voice, “It was like something out of CSI.”
She describes how a consumer had gotten herself out of bed in the middle of the night, unsupervised, and fallen down a flight of stairs. “She had taken a fire-extinguisher off the wall with her face.”
Somehow the woman got herself back into her bedroom and put herself to bed, still bleeding.
“Nobody heard her fall,” Haley says. “The staff couldn’t tell me anything.” Two staff members on duty had claimed that they didn’t know the consumer fell because they were taking a cigarette break together.
Haley filed a 147 Report form for the incident because she was the one who dealt with the issue. This is standard procedure. Such reports are supposed to be sent from the facility to the Commission on Quality of Care and Advocacy for Persons with Disability (CQC), and the CQC is charged with reviewing the internal investigation report.
There are basically two kinds of reports, one for a standard incident and the other for an incident that directly alleges abuse. A woman falling down the stairs, even if a result of staff negligence, does not constitute an act of abuse as defined in social-services law, a definition that Michael Carey and other critics feel is too specific and actually violates the threshold of endangering the welfare of a child.
After review of the internal investigation report provided by the facility, the CQC makes binary recommendations of either “indication” or “unfounding.” This means that unless a claim shows enough evidence of abuse to be indictable, it is unfounded and the records are sealed. The CQC often will follow up with a care-and-treatment investigation.
In 2006, according to testimony in a state Senate hearing after Jonathan Carey’s death, the CQC recommended “unfounding” in 95 percent of all incidents.
Alvarez explains the reporting process: Once an employee files a report, the appropriate state oversight agencies are notified. Unless an anonymous claim is made, he assumes, whoever initially filed the report would be contacted by the state watchdog agency as part of the investigation.
Haley says that she was never contacted by CQC investigators, and because of the highly confidential nature of CQC investigative actions, it is not possible to know if the claim ever made it from Schoharie County ARC to the state players.
Haley is critical of the internal investigation, alleging that it didn’t go far enough, claiming that another staff member told her that the two on duty had been smoking marijuana at the time the consumer fell.
“When I walked in, and I saw that woman, how she looked that night, I realized all they care about is themselves and their jobs,” she says. The consumer was eating breakfast, bleeding into her bowl of cereal.
Ultimately, a memo was issued prohibiting staff from taking breaks together, and those two workers were fired. But Haley says they bagged up the linens, cleaned the blood off the walls and even tried to shower the consumer who fell before initiating medical attention. These actions and the allegations of drug use make her believe the incident bordered on criminal and the authorities should have been involved in a broader investigation. Since this incident wasn’t deemed “abuse,” the two fired staff members were free to work at another nonprofit.
Upon her resignation, Haley called and left three messages for Alvarez, none of which was returned.
Alvarez says that he did not call Haley back because “the accusations, the allegations she was making at that point had been investigated, and any recommendations coming out of those investigations were implemented.” Alvarez insists that not only are all complaints investigated appropriately but that Haley would have had access to all the support she needed in working with her direct-care staff.
“They did not want to hear it. They did not want to hear my concerns,” Haley says. “They work very hard to make it look good on the outside. They try to showcase and there is stuff that’s going on that’s good; they have good employees but it’s too small a percentage.”
“There needs to be more expected of people,” Haley says. “They got away with way too much, and then when something really bad would happen, ‘Off with your head!’ ”
Each ARC chapter operates under its own budget, and the NYSARC state umbrella entity normally makes no financial contribution. Schoharie ARC, which serves 108 consumers in residential programs, is funded by an amalgam of public money, with Medicaid as a top contributor at about 75 percent and the remainder coming from state vocational and workshop programs. According to its 2005 IRS 990 filing, Schoharie ARC’s total program service revenue exceeded $9.7 million.
“The job starts at $9.27 an hour. You can get a job at Taco Bell for $10 an hour, so I think maybe you get Taco Bell quality people working for you,” says Joey Berben, a Family Support Advocate for Rensselaer County Association for Retarded Citizens. Berben, a front-line direct-care worker, works in a higher functioning house than Jonathan Carey would have been placed. The consumers Berben works with are verbal. They live in their own apartments and often hold jobs.
“You want to hire quality people, but they don’t come as often,” the 22-year-old Berben says.
“We’re always shorthanded, we’re always hiring.”
Berben was delivering pizzas for a living but had to find different work after a car accident. He would have never considered a position with the Rensselaer ARC if not for a friend who coaxed him to give it a try. At first he recoiled from the idea of having to shower people or help them go to the bathroom, but says that he has grown to love it and now wants to turn that job into a career.
Motivated by employee-incentive programs and tuition assistance, he can see opportunities for growth in his two years at Rensselaer ARC. These programs help him to feel like he’s working toward something in addition to genuinely enjoying the company of his consumers, whom Berben has come to regard as family.
“Maybe I’m not making a whole lot of money,” he says. “I feel like I can make the same amount of money and work in retail somewhere or in a restaurant, or I can have a job that is rewarding on multiple levels.”
Berben works the second shift, from 11 AM to 7 PM. Some of his tasks include taking consumers to the grocery store, to lunch, to school, work or out to the movies. Berben also administers medication when necessary.
“I do feel like a lot of organizations take certain blame for things when a lot of things are out of their control,” says Berben. “I feel like it’s kind of hard to control personal individuals when there are so many people working in an agency.” It can be exhausting work, and that exhaustion can easily be translated into a dangerous situation if not checked.
Perhaps this is what led to Jonathan Carey’s death: a dangerous situation arose from an employee exhausted by working too much in such a high-stress field.
“Ed Tirado was working his tenth double-shift in a row the night he killed Jonathan! It’s unheard of!” exclaims Michael Carey. “Eight hours with one autistic kid is more than enough, and then to work 16 hours a day, day after day after day after day? And I’ve asked the commissioner [of OMRDD] and the governor’s office to do something right away, and here it is, seven months after Jonathan’s passed on and to my knowledge there’s zero changes yet.”
(Edwin Tirado was convicted of manslaughter in the death of Carey and is scheduled for sentencing in December. The other worker, Nadeem Mall, is currently serving a six-month sentence after accepting a plea bargain in exchange for testimony against Tirado, the worker who actually applied the fatal, illegal restraint.)
According to the Times Union, Tirado ranked fourth for top overtime earners at O.D. Heck, and 18th among his 23,000 colleagues in all of OMRDD for 2006. He worked an additional 1,647 hours, roughly the equivalent of 44 weeks worth of overtime, last year. It is unclear how many of those overtime hours were considered mandatory.
These figures are extreme, and the issue of excessive overtime is currently under review by state Comptroller Thomas DiNapoli, but it is not the first time the Office of the State Comptroller has been critical of the Capital District Developmental Disabilities Services Office, the regional agency that oversees operations at O.D. Heck. In reports from 2001 and 2005, audits by the state comptroller’s office revealed problematic payroll management in the form of excessive overtime.
In both cases the Capital District DDSO response was that overtime practices would be reviewed, but pointed out that the district stayed within the overall budget. The 2005 audit indicates that the Capital District DDSO habitually underestimated the overtime costs required to service its consumers. According to the 2005 report, for fiscal year 2004-05, Capital District DDSO budgeted $867,000 for overtime but actually spent $3,628,747. The comptroller’s report chastises that this is an expensive way to staff residences.
Says Carey: “I think it’s an issue of them not hiring enough people.”
“We stop the incidents by making people aware that they occur,” says New York state Assemblyman Harvey Weisenberg (D-Long Beach), who introduced Jonathan’s Law into the Assembly, “providing information so people can be made aware to advocate and correct the causes of these incidents from occurring.” Weisenberg’s background as a special-education teacher and his experience caring for his own developmentally disabled child make him a familiar advocate to New York’s mentally retarded and developmentally disabled community.
“The reality is if you’re short-staffed and overworked and something takes place, the responsibility and burden is on the administration to know who could and who should be there taking care or providing for people that they’re servicing,” says Weisenberg. “If somebody works ten days, double shifts, you can’t tell me that you’re not aware this guy is burnt out!”
“It’s a tough day. It’s a tough day. A lot of these are nonverbal, nonambulatory, it’s a physical job, it’s a mental job,” says Weisenberg, who has been working to advance legislation for years that would limit the number of consecutive hours that a direct care worker is allowed to work, but says these efforts have been stymied by OMH and OMRDD because of staffing issues. The unions, as well, have opposed the legislation because, they argue, the workers need to work double shifts just to support their families.
“It becomes a little bit of a double-edged sword out there because a lot of our members do like to get overtime and have the additional money that comes from working additional shifts, but what’s happening in some places is they kind of get excessive, mandated overtime that becomes somewhat counterproductive,” says Stephen Madarasz, spokesman for CSEA, one of the main labor unions organized by state employees.
“We have to pay people a decent salary for the most difficult job in the world,” Weisenberg says. “The most difficult task in the world is being able to care for another human being. We gotta pay them.”
“You need to pay a better wage to attract people to do the work and to keep them, because the real issue is the excessive turnover rate in the not-for-profit sector, and everybody acknowledges it. The not-for-profits acknowledge it, OMRDD acknowledges it, and we hear it from the workers.” Madarasz explains that the there is regular contact on an ongoing basis with nonunion members due to the interconnectivity of the community. “It’s symptomatic of the big issue that there just aren’t really enough people in place to cover the shifts on a 24/7 basis. That’s really what it is.”
Weisenberg believes that the key to cultivating a career-oriented permanent workforce is offering incentives—similar to those that Berben enjoys—not only by paying a living wage, but also educational opportunities.
“We should have college motivation and higher education to be able to develop caregivers and people that will work with human beings,” says Weisenberg, who wants to give college credits to people to volunteer in nursing homes and facilities. “That is very satisfying and gratifying, and if they make a decent salary maybe we can bring people into the field. We have to motivate an interest where people take care of people.”
“There are many stories to be told of the wrongdoing that has taken place because of inadequate staff and money to be able to provide what is necessary,” Weisenberg says. “It’s an awakening that we have an obligation in government to do the best that we can to provide what is necessary.”
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