Court of Appeals June Session: Arguments of Interest for June 7, 2018

The Court of Appeals finishes up the 2017-18 argument term with 4 arguments on the last day of the June Session. The cases vary wildly, from a Medicaid recoupment proceeding to a Justice Center finding of negligence against an intermediate care facility (the Court’s case summaries can be found here). The Court will hear arguments on the following issues: (1) does a statutory notice of Medicaid overpayment recoupment limit OMIG’s recoupment to the amount provided in the notice, or may OMIG continue to withhold funds until the upper limit of the unchallenged audit report is released; (2) did a municipality comply with a procedures necessary to dissolve a fire protection district pursuant to a resident-initiated referendum; (3) did the city civil court deprive a criminal defendant of his constitutional right to assistance of counsel by denying him the opportunity to provide closing arguments at the end of a bench trial; and (4) whether the Justice Center may substantiate a finding of negligence against an intermediate care facility without a corresponding finding that one of its supervisors or employees was negligent in the underlying incident.

No. 77    Matter of Anonymous v Molik

When one of your loved ones has to live in an assisted care facility because of a physical or mental disability, you want to know that the facility and its staff isn’t neglecting your loved one’s care. That what the State Justice Center for the Protection of People with Special Needs was created to oversee.  Created under the Social Services Law, the Justice Center investigates and responds to allegations of abuse and neglect of persons with special needs in facilities throughout the State.

In Matter of Anonymous, an allegation of neglect was made against an employee, a supervisor, and an intermediate care facility in St. Lawrence County arising from the sexual assault of a resident by another resident. Allegedly, the employee left the living room of the facility to attend to some laundry in the next room, and returned to find the assault in progress. After the Justice Center’s investigation, the Center found the allegations against the employee and the supervisor unsubstantiated because the facility did not have a policy that the employee could not leave residents alone in a common area, but found the facility negligent because this was the third incident of sexual assault by the same male resident and the facility failed to increase the level of his supervision.

After the finding of neglect against the facility was confirmed by an ALJ, and the Center’s director of administrative hearings, the facility brought suit, alleging that because the relevant Social Services Law provision only provides that the Justice Center may substantiate a “concurrent finding” of neglect against a facility only if the people responsible can’t be identified and it was a systematic issue that contributed to the neglect. Because the Justice Center identified the alleged responsible individuals here and didn’t find the allegations of neglect substantiated against the employee or the supervisor, the facility argued, the Justice Center lacked statutory authority to issue a finding of neglect against the facility.

The Appellate Division, Third Department agreed, and annulled the Justice Center’s finding of neglect. The Court held that, under Social Services Law § 493(3)(a), the only circumstance under which the Justice Center can substantiate a report of neglect against a facility or provider agency is where an incident of neglect has occurred but the subject can’t be identified. That wasn’t the case here, so the Justice Center lacked authority to substantiate the finding of neglect against the facility.

The Court of Appeals will now decide the scope of the Justice Center’s power to make findings of neglect against a facility.

The Appellate Division, Third Department’s order can be found here.

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