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Death renews push for Jonathan’s
Law
February 26, 2007
By Sari Zeidler
Jonathan Carey died at the hands of
those who were charged with caring for him, but the death of the
13-year-old autistic boy may expedite legislation that would make it
easier for parents to ensure the safety of children placed in
state-run residential facilities.
Jonathan Carey’s parents have been
fighting for the creation and passage of Jonathan’s Law for over a
year after finding evidence suggesting Jonathan was neglected at the
Anderson School in Dutchess County.
Though the Carey family pulled
Jonathan from the school, they were unable to prove their suspicions
that he had been abused since Jonathan was unable to speak and they
were repeatedly denied access to records of an investigation by the
Office of Mental Retardation and Developmental Disabilities.
For Jonathan, the suspected abuse
at the Anderson School was not the last he endured. According to the
Colonie Police Department, Jonathan died under the care of O.D. Heck
Developmental Center employees, Edwin Tirado, 35, and Nadeem Mall,
32, of Schenectady on Feb. 15.
The two men were allegedly
transporting the boy in a van when they caused his death in an
attempt to restrain him and failed to seek medical attention. Both
men have been indicted on charges of Manslaughter in the second
degree and criminally negligent homicide.
Jonathan’s death is a separate,
criminal offense unrelated to the abuse allegations which sparked
efforts to pass Jonathan’s Law in the first place. But his suffering
in the care of a state-run facility a second time is a coincidence
many are calling a tragedy that has reinvigorated endeavors to pass
legislation and brought scrutiny to the special education system.
Assemblyman Harvey Weisenberg, D –
Long Beach, sponsor of Jonathan’s Law, said, “What I am going to do
is pass this bill,” stating the need to address the “emotional need
of a family to feel secure in their child when other people are in
charge of their life.”
The Assembly bill was drafted last
Wednesday and a Senate bill sponsored by Sen. Thomas Libous is
scheduled to be filed this week. The Careys will be meeting with
Weisenberg to see that it meets their approval.
As of press time, requests by the
family to meet with Gov. Eliot Spitzer have not yet been answered.
“If Jonathan’s Law is implemented,
it would give parents access to documents essential to answering the
many painful questions a parent of a special needs child, or any
child, has when their son or daughter has been abused by a care
taker,” Weisenberg explained.
Jonathan’s parents, Lisa and
Michael Carey, said at a press conference last Thursday that during
a visit to Jonathan at the Anderson School an employee insisted they
take a bag of Jonathan’s clothing with them when they took Jonathan
off campus for a dental appointment. Inside the bag, the Careys
found a log book, dated and signed, that showed the school had been
withholding Jonathan’s meals and replacing them with a glass of
soymilk for a period of over five weeks as a form of behavior
management.
The Careys were outraged.
The necessary parental consent had
not been given for this treatment, nor had it been authorized by any
case workers responsible for making changes to Jonathan’s
Individualized Education Plan. After the Careys confronted the
school about this issue they say they were notified that their
visitation rights were to be suspended for a period of four weeks.
When they returned only a few days later to remove Jonathan from the
school, Michael Carey recalls seeing 40 to 60 bruises on the boy’s
body that were unreported.
According to the Careys and their
Lawyer, Daniel Persing, a request made for records of investigation
into Jonathan’s abuse under the Freedom of Information Law were
denied by the Office of Mental Retardation and Developmental
Disabilities on the basis of federal regulations and Article 33 of
the Mental Hygiene Law.
“I fully believed in the situation
at the Anderson School that there would be indictments for failure
to report and endangering a child,” said Jonathan’s mother.
Instead, the Careys were told their
accusations were unfounded. They were given a one-page summary of
the investigation though investigators told the Careys in phone
conversations that there were hundreds of pages concealed by OMRDD
including confessions of Jonathan’s abuse.
The Careys tried every avenue to
reach state officials, including former Gov. George E. Pataki and
former OMRDD Commissioner Thomas Maul, but were unsuccessful. Maul
did eventually meet with them, but the Careys say he told them he
was only doing so to appease his boss and had no interest in hearing
their concerns. The Careys also said they were shown a revised
version of the log which initially informed them of Jonathan’s
neglect showing his meals had been withheld for one day, rather than
more than a month.
The Carey’s Freedom of Information
Act request for the files was denied again on appeal.
The Careys are pleased with the
compassion shown by state legislators.
“Somewhere, somehow, the system
failed Jonathan not once, but twice,” said Senate Majority Leader
Joseph L. Bruno R,C,I ¯ Brunswick. “We will consider legislation
that addresses this very issue.”
According to Mark Hansen, a
spokesman for Bruno, hearings are being scheduled to further
investigate this issue.
Sen. Thomas P. Morahan R,C,I,WF
¯New City, chair of the Senate committee on mental health and
developmental disabilities, said in a press release, “We will
convene a hearing to determine if the problems associated with this
case are systemic.”
As of press time, there was no
Senate sponsor for the bill.
The Careys believe that the system
has some serious flaws.
“Staff is not nearly as well
trained as these agencies keep claiming to the public,” said
Jonathan’s mother Lisa.
Both of Jonathan’s parents said
great problems arise in training methods for employees, particularly
in reporting child abuse. They think that many individuals who are
mandated by the state to report any suspicion of child abuse are
either unaware of their legal obligations or fear losing their job.
“State jobs are good jobs with good benefits,” said Jonathan’s
father.
They also pointed to the lack of
staffing as a “recipe for abuse” because of the numerous double
shifts employees are forced to work.
The Careys said they are aware that
Tirado often had to work double shifts, and they are interested in
determining if this was a factor in Jonathan’s death. They had known
and liked Tirado since Jonathan’s enrollment at O.D. Heck in October
2005.
The Careys hope that if Jonathan’s
Law is passed, the knowledge that all files will be available to
parents and guardians will force employees to act appropriately and
weed out dangerous employees.
Persing said that parents of
children in public schools have the right to demand answers when
child abuse is suspected, but said “placing them [special needs
children] in the system now we give up that right as parents?”
Facilities such as the Anderson
School are typically overseen by the state Department of Education
as well as OMRDD and include additional oversight from the Office of
Children and Family Services. Jonathan’s Law would not be restricted
to disclosure of OMRDD files but would provide parents and guardians
with access to any files regarding investigations of child abuse.
Neil Pollack, executive director of
the Anderson School, said he could not comment on any ongoing
investigation but said that the school “would comply with any
court-directed order to produce any material and we would have
complied fully, and that would have included any material from state
agencies.”
Tirado and Mall were scheduled for
arraignment last Friday. Jonathan’s autopsy is complete and results
should be available in coming weeks.
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