Unspecified ‘settlement agreements’ allow abusive care providers to avoid placement in state Registry
[Clarification: This post has been updated to note that the settlement agreements referred to in the post were reached between the Disabled Persons Protection Commission and care providers who had filed appeals to the state Division of Administrative Law Appeals of registrable abuse affirmations.]
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State data show that in more than 40% of the cases in which care providers of persons with intellectual and developmental disabilities (I/DD) appealed “registrable abuse” affirmations to a state adjudicatory body, the state entered into “settlement agreements” with those providers.
Each of those settlement agreements, which are not subject to public disclosure, enabled the care providers to avoid placement in the state’s Abuser Registry.
Meanwhile, with that data also showing that a majority of abusive care providers of clients with disabilities have been able to avoid placement in the three-year-old Registry, we are asking the co-sponsors of the Registry statute to support corrective language to that statute and regulations.
The data, provided to COFAR by the Disabled Persons Protection Commission (DPPC), show the outcomes of the first three years of the operation of the Registry, which was established under “Nicky’s Law” in 2020. The DPPC data cover a period since the database was first put into use in July 2021.
Nicky’s Law was enacted to ensure that care providers who have been found to have committed abuse or neglect are no longer able to work for the Department of Developmental Services (DDS) or for any agency funded by DDS.
We first reported in July that in only about a third of the cases in which the DPPC or DDS affirmed initial substantiations of abuse allegations against care providers did the DPPC conclude after appeals that those persons’ names should be placed in the Registry.
Care providers against whom either the DPPC or DDS have substantiated allegations of registrable abuse have two avenues of appeal under the Registry law and regulations. First, a care providers can directly petition the DPPC to either overturn the substantiation or determine that the the abuse was not “registrable.”
Second, if the DPPC denies the care provider’s appeal, the care provider can further appeal to the Division of Administrative Law Appeals (DALA), an independent state agency that conducts adjudicatory hearings.
A detailed set of DPPC data, which we received in October, show that from Fiscal Years 2022 through 2024, care providers who petitioned the DPPC had their registrable abuse findings reduced to non-registrable abuse in 65% of the cases in which the DPPC had nevertheless affirmed, after the appeals, that abuse had occurred. That meant those care providers’ names would not be placed in the Registry.
Further, care providers who lost their DPPC appeals and then exercised their right to appeal again — this time to DALA — were able to avoid placement in the Registry in 43% of those DALA appeals. Thus, out of 192 care providers who petitioned and appealed both to the DPPC and then to DALA, only 7 care providers were subsequently placed in the Registry — a placement rate of only 4% of those petitioning and appealing to both the DPPC and DALA.
A total of 122 care providers were either placed in the Registry (119) or had their placements pending (3) during the three-year period. That number includes the 7 care providers who lost both sets of appeals to the DPPC and DALA, and 115 care providers who either didn’t file any appeals or who didn’t appeal to DALA.
A total of 283 care providers were initially found by either DPPC or DDS investigators to have committed substantiated abuse. So, the placement of 122 of those care providers in the Registry is a placement rate of 43%. The placement percentage is only that high because so many care providers didn’t exercise any or all of their appeal rights.
The chart below summarizes this data. (Click to enlarge.)
Also, while a DPPC attorney had previously said that the DPPC has had a policy of placing all care providers in the Registry who were found liable for sexual abuse, the data show that in 8 instances in which those care providers petitioned the DPPC, the abuse allegations were changed from registrable to non-registrable.
The settlement agreements
According to the DPPC data, 28 care providers, who lost their petitions to the DPPC, subsequently appealed to DALA during the three-year period. Of those 28 appeals, DALA, as noted, denied only 7, clearing the way for the placement of those care providers in the Registry. DALA reversed 2 of the appealed cases from substantiated to unsubstantiated abuse.
In an additional 12 cases, the DPPC entered into unspecified “settlement agreements with care providers who had filed appeals to DALA of registrable abuse affirmations. Seven appeals remained pending.
Each of those 12 settlement agreements allowed the care provider to avoid a Registry placement. According to the DPPC, the settlement agreements “generally involve the modification of the finding of ‘registrable abuse’ to (non-registrable) ‘abuse’ upon verification that the care provider underwent corrective action, such as remedial training.” In each of the settlement agreements the appeal to DALA was subsequently withdrawn.
A DPPC attorney stated that the settlement agreements are not public records.
We have asked the DPPC for clarification as to whether potential settlement agreements are offered by the DPPC to all care providers who file appeals to DALA of registrable abuse affirmations. If not, we asked, are there criteria that determine whether a settlement agreement is offered? And are there any regulations that allow the resolution of these cases via settlement agreements?
Loophole language correction
We have proposed legislative language that we think would close a loophole in the Registry Law that currently allows so many abusive care providers to avoid placement in the Registry even in cases in which the DPPC affirms, after appeals, that abuse occurred.
The loophole appears to exist in the wide discretion given to the DPPC in determining whether a substantiated incident of abuse was isolated or whether the care provider is nevertheless still fit to provide services.
The Registry regulations state that certain factors, such as prior instances of similar conduct, “may” be considered by the DPPC in the appeal process. We think the DPPC should be required to consider that and other factors if it is to determine fairly whether a given incident was isolated or not. Leaving the decision as to what to consider up to the particular DPPC employee deciding the appeal invites suspicion that the appeal process isn’t necessarily even-handed or fair.
We have contacted the offices of three state legislators who were original co-sponsors of Nicky’s Law, which created the Abuser Registry, and asked them to file corrective legislation. They are Senators Patrick O’Connor, Michael Moore, and Bruce Tarr.
Our suggestion for such language is the following:
1. In considering petitions and appeals filed to avoid placement on the Registry, both the DPPC and DALA must consider the following factors in determining whether the incident was isolated and unlikely to reoccur and the care provider is fit to provide services and supports to persons with intellectual or developmental disabilities:
- The care provider’s employment history in working with individuals with disabilities;
- Prior instances of similar conduct by the care provider;
- Any statements or communication regarding the care provider’s work history and fitness to provide services and supports to persons with disabilities; and
- Any victim-impact statements submitted by individuals with disabilities or their family members or guardians.
2. The DPPC and DALA must place all care providers for whom sexual abuse has been substantiated and affirmed after a petition or appeal process in the Registry.
Earlier this month, a legislative aide to Senator Moore stated that the senator planned to speak with his Senate and House counterparts, as well as leadership and stakeholders, about our suggested language.
We look forward to working with Senator Moore and others in the Legislature to address this issue.
COFAR blog 
Unbelievable but so sad it is true. Imagine only a fraction of abuse is reported even those are watered down. Yet those have been proven to be abusive get off to go and abuse again. In reality there are no true safeguards it is all smoke and mirrors. It is time we put cameras in group homes and even then, we won’t get the true story of what’s is really happening but at least it may help. I may stop intimidation individuals to recant their statements, or say the individual is lying which is said way too many times.
I understand there is a staff shortage, and lots has been overlooked but do you really want to keep staff that are incompetent, neglect individuals, and physically and mentally abuse individuals? You don’t if you care about the individuals and are either a good agency or person and I for one and thankful there are some of both.
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This is so discouraging. How can thee courts process ‘settlement agreements’ for people who abuse disabled adults? I agree with Marion – only a fraction of abuse is reported – and the majority of that is screened out or quickly determined to be ‘unsubstantiated’. Think about what that means in terms of the abuse that is substantiated – it’s irrefutible, yet they are dismissing it with settlement agreements. How does this protect the most vulnerable of our population? How do these people live with themselves?
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This is so discouraging. I agree with Marion, only a fraction of abuse is reported- and the majority of what is reported is screened out or found ‘unsubstantiated’. How is the court processing ‘settlement agreements’ with known abusers of the most vulnerable of our population? How do these people sleep at night?
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While Nicky’s Law is well intended, it can also be confusing. If someone working for DDS has been found to be neglectful or abusive towards people with intellectual disabilities, aren’t they someone who should be fired and/or possibly arrested and charged with abuse? It is telling that this doesn’t happen very often – perhaps because these jobs are so hard to fill, and providers are reluctant to do so.
There could certainly be circumstances where re-training may be appropriate. But true neglect and/or abuse warrants the firing of that staff member and possibly calling the police as well as DPPC. This rarely happens. People with ID often do not make good witnesses and cannot say that someone hit them, or left them alone and unsafe, resulting in a physical or emotional injury. Staff members often do not report on one another. The excuse that “it only happened once” may not even be true, it may just have been unseen. And isn’t once enough to know that someone is inappropriate to work with this vulnerable population?
The grey area of this registry, made even more so by the appeals process, flies in the face of protecting such vulnerable individuals. People accused of neglect or abuse would not be allowed to continue in a day care or a school. Why is it different in DDS provider settings? In a setting with oversight, such as an ICF, or perhaps a well staffed home with supervision, these situations are far less likely to happen. The appeals process and the watering down of Nicky’s Law (in accordance with the wishes of DDS providers), leaves adults in the DDS system at risk. Nicky’s Law needs to be beefed up, and people should also be encouraged to report neglectful or abusive situations. No one wants to work in a place where this happens.
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So this is where DPPC use their limited services on instead of helping people who are being abused by the system (i.e. DDS & Agencies)! There’s many too.
Protecting these abusers from being on the registry is disgusting and dangerous. DDS needs to be completely overhauled and the thugs in charge need to be purged for real improvement to be made.
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