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June 22, 2016

Justice Center Lacks Jurisdiction to Assert "Concurrent" Finding of Neglect by Provider

In a unanimous decision by the Appellate Division, Third Department, the New York Justice Center ("the Justice Center") has been dealt a substantial curtailment of its authority to pursue findings of neglect against Provider entities.

Pursuant to Executive Law §§ 551-562 and Social Services Law §§ 488-497, the Justice Center is charged with establishing and maintaining a statewide central register – known as the Vulnerable Persons' Central Register ("the Registry") – to accept, investigate and respond to allegations of abuse, neglect or other "reportable incidents" of persons receiving services in licensed facilities or Provider agencies (see Executive Law § 553 [1]-[4]; Social Services Law § 492).

The Justice Center may pursue individuals under its broad civil and criminal authority found to have abused or neglected vulnerable persons pursuant to an intricate administrative process of investigation and appeals. The Justice Center has asserted its legal authority to pursue neglect findings against Providers and individuals alike, claiming the statutory framework allows concurrent findings against Providers where systemic failures cause or contributed to an incident that could not be substantiated against individuals.

In the Matter of Anonymous, an Intermediate Care Facility v. Molik, two individuals were charged with neglect findings for having left disabled residents alone, allegedly furnishing the conditions for the occurrence of an inappropriate sexual encounter between residents. The findings against the individuals were, however, not substantiated because the individuals did not violate any policy prohibiting the residents from being left alone in a room together. The Justice Center did, however, substantiate a finding of neglect as a "concurrent finding" as to the Provider for failure to establish an effective policy to prevent such an incident.

The appellate court overturned the neglect finding against the Provider, determining that the Justice Center's powers did not allow for neglect findings against Provider entities that could be reported on the Registry; only a concurrent finding of a systemic failure that caused or contributed to an incident:

"While the Justice Center is indeed permitted to make a "concurrent finding" with respect to a facility or Provider agency in conjunction with either a substantiated or unsubstantiated report, the scope of that "concurrent finding" is expressly circumscribed by the statute. By its terms, the only "concurrent finding" that may be made is "that a systemic problem caused or contributed to the occurrence of the incident" (Social Services Law § 493 [3] [b])." Molik, Page 4.

The court narrowly interpreted the statute, finding that the agency's broad interpretation of its own authority was entitled to no deference, suggesting the Justice Center can expect vigorous judicial scrutiny of its legal reach as legal precedents arising from challenges to its novel statutory structure emerge.

Providers will welcome this appellate check on the Justice Center's authority to wield the power of the Justice Center Registry against them, particularly in situations where individual findings remain unsubstantiated.

If you have questions or require further assistance regarding the information contained in this Legal Alert and the impact on your organization, please contact Linda J. Clark, Chair of the Health Care Controversies Practice Area at


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