February 1, 2010

Assembly Approves Legislation To Protect Individuals With Disabilities
Measure Would Create D and E Felony Offenses for Caregivers who Endanger the
Welfare of an Individual who is Mentally or Physically Disabled

Assembly Speaker Sheldon Silver and Assemblyman Tim Gordon today 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). Similar legislation passed by the Assembly last year was vetoed.

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.

"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 Silver (D-Manhattan). "Creating new felony offenses will help ensure that our most vulnerable citizens are protected under New York State Law."

"This legislation was drafted to better protect our most vulnerable residents among us -those who cannot protect themselves," said Gordon (I/D-Bethlehem). "Shockingly, the current law for abusing someone with a disability in state custody carries a lesser penalty than abusing an animal - no more than a year in jail. That is absolutely absurd."

"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.