Surveillance video used to support disciplinary charges alleging patient abuse served on an employee at a geriatric facility

Petitioner, a certified nurse's aide at a geriatric facility, was observed on a surveillance video force-feeding a patient in a rushed and rough manner. Petitioner was charged by the New York State Department of Health [DOH] with patient abuse and neglect as defined under 10 NYCRR 81.1(a) and (c), respectively, in violation of Public Health Law §2803-d. 

Then Commissioner Zucker adopted the Administrative Law Judge's findings and recommendations and sustained the charges of patient abuse and neglect. Petitioner commenced this CPLR article 78 proceeding to challenge the Commissioner's determination.

The Appellate Division opined that contrary to the Petitioner's contention, the ALJ providently exercised her discretion in admitting into evidence the surveillance video footage, citing Walker v Zucker, 146 AD3d 789. Further, said the court, substantial evidence in the record supports the Commissioner's determination that the charges were substantiated by a fair preponderance of the evidence presented at the hearing.

The decision states "DOH's evidence showed the petitioner feeding the patient heaping spoonfuls of food at a rapid pace and in an extremely rough manner, not allowing the patient sufficient time to swallow. Even the [Petitioner], herself, testified that she fed the patient at a rapid pace and that she should have been "more gentle."

The Appellate Division confirmed the Commissioner's determination, denied the petition, and dismissed the proceeding on the merits.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

From the Blogs: GovTech Today's postings on August 7, 2023

GovTech Today's postings on August 7, 2023, included the following items:

Why Should Young People Work in Government IT? On the record: State technology leaders share their pitches to get fresh faces into state and local government IT shops. READ MORE

The Hidden Costs of Robotic Process Automation in Government Robotic process automation is increasingly popular as a way to speed up government work. But this isn't always the answer — and at times, it may cause an agency unforeseen headaches down the road. READ MORE

Administrative Law Judge recommended termination of Correction Officer found guilty of failing to report for duty on numerous occasions and certain other acts of misconduct

New York City Office of Administrative Trials and Hearings Administrative Law Judge Julia H. Lee recommended termination of employment for a New York City Correction Officer [Officer] found guilty of certain charges of failing to report for duty and being absent without leave on numerous occasions.

Judge Lee found Officer had repeatedly refused lawful orders to work overtime, arrived late to work on over 200 dates, and failed to perform her duties in a timely and efficient manner.

Officer did not deny the time and leave violations but contended that being ordered to work beyond her regular hours damaged her health and well-being. The ALJ rejected this argument, finding that Officer’s health concerns were not a defense and did not amount to a medical emergency under the health and safety exception to the “obey now/grieve later” principle.

Although the charges served on Officer were sustained in part and were dismissed in part, and the fact that Officer had no prior disciplinary history, Judge Lee recommended Officer's termination, opining that dismissal was warranted due to the number of violations and the officer’s unwillingness to accept responsibility for her those acts of misconduct for which the ALJ found her guilty.

Click HERE to access Judge Lee's decision and recommendation posted on the Internet.