An act to amend the penal law, in relation to endangering the welfare
of a person with physical or mental disabilities in residential care.

The New York State Chapter of the National Association of Social Workers opposes Assembly bill 9309, which amends the penal law to increase criminal sanctions toward certain acts leading to harm of persons in certain New York State residential facilities.

This bill would turn many cases of alleged abuse or injury occurring in residential homes operated or licensed by the Offices of Mental Health, Mental Retardation and Developmental Disabilities, or Children and Family Services, into felony cases, even if such harm may be unintentional. Under A.9309, individuals employed would face extreme legal liabilities related to the daily course of their job, making these already difficult jobs even harder to fill. As such, staff may be subject to arrest, holding, and bail as the result of even alleged abuse.

Direct care workers in the State’s residential facilities at times must intervene with severely disturbed children who act out in violence; and despite the comprehensive training provided to staff in such facilities, injuries sustained in the process of a therapeutic restraint sometimes occur to both the resident and staff. If enacted as currently written, even such unintentional acts of harm would be deemed ‘reckless,’ and result in felony prosecution. This is particularly troubling, as recruitment and retention of direct care workers in residential facilities is already a difficult task, and would only become more so when applicants learn that they may be subject to felony charges for accidents occurring on the job.

Furthermore, the inclusion of only residential populations in this bill seems to draw an arbitrary distinction between individuals with disabilities based on their place of residence. Consequently, a person with mental retardation who lives in the community would not be entitled to the same legal recourse as someone within the same population but who happens to live in a group home operated by OMRDD. It is difficult to imagine why harming one of these individuals carries more legal weight than doing so to another.

While NASW-NYS strongly defends the rights of individuals with disabilities and other vulnerable populations in residential care, we do not believe that this bill provides any further protection for these individuals. Rather, this legislation merely increases the legal liability of direct care professionals working in certain residential settings. Such increased liability will certainly impact the supply of people willing to work in settings with vulnerable populations; and moreover could lead to long-term removal of such staff from their jobs while the regrettably frequent (and often unfounded) abuse allegations in such residential facilities are criminally investigated.

While this legislation moved quickly through the Assembly upon a Governor’s order of necessity, NASW-NYS urges cautious and critical consideration of A.9309, a bill that we believe will do more harm than good.