Friday, 12 February 2010 00:00
Assemblyman Tom Alfano recently announced the passage of legislation that would create new class D and E felonies for paid or court-ordered caregivers who endanger the welfare of incompetent or disabled individuals (A.9534). Alfano called the measure “long overdue and an issue of social justice.”
Under current law, endangering the welfare of an incompetent or physically disabled person is only a class A misdemeanor, but endangering the welfare of a vulnerable elderly person by a caregiver is a class E or D felony, depending on the harm inflicted. This legislation recognizes that mentally or physically disabled individuals in the care of others should be afforded the very same protections the law gives the vulnerable elderly.
“This bill, when signed into law, will finally close a dark chapter in the abuse of those who have physical and mental challenges in our society. The families of special children and adults need peace of mind and must have protections against abuse,” said Assemblyman Alfano.
“The passage of Jonathan’s Law in 2007 was a victory for both individuals with disabilities and their families and guardians, and the legislation approved today would add further protections for those with mental and physical disabilities,” said Speaker Silver (D-Manhattan). “Creating new felony offenses will help ensure that our most vulnerable citizens are protected under New York State Law.”
“With passage of this legislation, those who are the most vulnerable in our society will finally have the needed protections that up until now have been woefully inadequate,” said Assemblyman Tom Alfano adding, “it is a complete and total disgrace that abuse toward an animal gets a larger penalty than that of a physically or mentally challenged person.”
“This vital legislation is another important part of reforming New York’s mental health-care system, prompted by the tragic abuse and death of our son Jonathan. We fully expect Governor Paterson to swiftly sign this legislation into law, to provide the necessary protection for vulnerable disabled people that the elderly and companion pets already have from abusive caregivers,” said Michael Carey. His son, Jonathan, an autistic 13-year-old from upstate New York, died in February 2007 while in the care of two health aides.
If enacted, this legislation would make it a class E felony for a caregiver to endanger the welfare of an incompetent or disabled individual when he or she intentionally or recklessly causes physical injury to that person or subjects that person to sexual contact without his or her consent. The bill would raise the penalty to a class D felony if such conduct results in serious physical injury. In response to Governor Paterson’s veto of similar legislation last year, the bill clarifies that the class of persons protected are individuals who are unable to care for themselves because of physical disability, mental disease or defect, a definition long recognized by the law and courts.
In 2007, the Assembly passed “Jonathan’s Law,” which requires the Office of Mental Retardation and Developmental Disabilities to provide access to investigative reports and records that contain allegations of abuse or mistreatment as far back as 2003. It also requires the director of a facility to notify the parents or caregivers of a patient of any incident within 24 hours of the initial report.
Other measures previously approved by the Assembly to protect individuals with disabilities include enhancing standards to determine if abuse has occurred; prohibiting the withholding of food or drink to modify behavior; and creating a body to review work hours for direct care employees.