Overview
According to Section 4.47 of Title 110 of the Code of Massachusetts Regulations,
[The Department of Youth Services (DYS)] will be responsible for any further action to ensure that adequate steps have been or will be taken to prevent reoccurrence of incidents of abuse and/or neglect of children in the institution [where the incident occurred].
During our audit period, there were 27 supported 51B reports of neglect and/or abuse of youths in DYS’s care or custody. Within these 27 reports were 11 incidents of physical abuse of youths in DYS’s care or custody, including 8 incidents of inappropriate use of physical restraints at 8 different DYS facilities; 4 incidents of sexual abuse of youths in DYS’s care or custody by its staff members at 2 of its facilities; and 34 incidents of neglect of youths in DYS’s care or custody by its staff members at 20 of its facilities. (A 51B report can contain multiple allegations of neglect and/or abuse.)
DYS does not have any formal disciplinary guidelines that establish what measures its staff should take to effectively address supported allegations of neglect and/or abuse of youths in its care or custody. For 22 of the aforesaid 27 reports, the action DYS took was simply to either suspend or terminate the employment of the individual/s who committed the offense/s. Although doing so was appropriate and necessary, we believe that DYS should also establish formal written guidelines for its staff to follow when resolving the issues in its 51B reports. These guidelines should also address measures beyond the suspension or termination of the perpetrator’s employment that could be effective in preventing reoccurrences. The measures could include such things as periodic targeted on-site training of all facility employees on proper restraint techniques, which should help minimize future incidents.
Such guidelines will better ensure that DYS consistently, effectively resolves the issues identified in its 51B reports and ideally will reduce reoccurrences of these issues.
Auditee’s Response
DYS is committed to ensuring the safety of the youth in its care and custody and to identifying and investigating allegations of abuse and/or neglect. As such, DYS appreciates the Audit Team’s interest in this area; however, DYS notes that the recommendation that DYS establish formal disciplinary guidelines about how staff should resolve supported 51Bs is inconsistent with DYS’ contractual, licensing and regulatory requirements and the collective bargaining agreements that govern the majority of its residential workforce. DYS notes that every 51A filed with [the Department of Children and Families, or DCF] alleging abuse or neglect related to either a DYS employee or provider staff and DYS youth is reported to DYS as required by DYS’ Serious Incident Policy. [DCF conducts all 51B investigations in accordance with its statutory authority and its findings are independent of any findings resulting from parallel investigations by DYS or the Department of Early Education and Care.] Every screened in 51A allegation of abuse or neglect is investigated by the DYS Investigations Unit for DYS policy violations. [The DYS Investigations Unit reviews all Serious Incidents and may also investigate an incident where a 51A was screened out or where one is not applicable.] In addition to DYS’ own investigation for policy violations, DYS’ licensor, the Department of Early Education and Care (DEEC), also may investigate for violations of its licensing regulations relevant to the events underlying the 51A. Each investigating state agency—DCF, DYS and DEEC—investigates for violations of its own statutes, regulations and/or policies.
Every DYS investigation that determines that its employees violated DYS policies is referred for discipline in accordance with the Collective Bargaining Agreements (CBA) that govern DYS employees. The CBAs provide for progressive, individualized discipline up to and including termination for DYS policy violations. Discipline often includes retraining of individuals where appropriate. DYS also requires recertification of all DYS employees in residential settings in more than twenty different topic areas, including but not limited to Restraints and Use of Force, Serious Incident Reporting, Safety and Search procedures, and DYS’ Use of Force Continuum. Additionally, DYS is responsible to address any licensing issues identified by DEEC in its state operated programs.
While DYS also assigns an investigator when DCF screens in allegations of abuse or neglect involving a contracted provider staff and/or contracted provider program, DYS’ role is limited to determining whether any DYS policies have been violated. Any employee discipline, up to and including termination, is necessarily the purview of the contracted provider. DYS addresses any programmatic issues through the contract, but the contracted provider is responsible for decisions regarding their employee and for correcting any licensing issues identified by DEEC. Of course, DYS is responsible for ensuring its contracted providers are meeting contractual expectations regarding the care and treatment of youth and can impose sanctions against the provider, up to and including termination of the provider contract if DYS is concerned about the services the provider is delivering to DYS youth.
Auditor’s Reply
The Office of the State Auditor (OSA) acknowledges that DYS conducts investigations of 51A reports and takes disciplinary actions as necessary to address all substantiated complaints. However, OSA believes that contrary to what DYS asserts in its response, it can and should develop standard disciplinary guidelines for effectively addressing issues identified in 51B reports. The guidelines should comply with DYS’s collective bargaining agreements and licensing and regulatory requirements and minimize the possibility of problems reoccurring. In OSA’s opinion, such guidelines will better ensure that DYS consistently, effectively resolves the issues identified in its 51B reports and ideally will reduce reoccurrences of these issues.
Regarding incidents such as child abuse or neglect that may occur at its contracted service providers, DYS states that any employee discipline needed as a result of such incidents is up to the providers. However, as noted above, DYS is responsible for ensuring that adequate steps have been or will be taken to prevent the reoccurrence of abuse and/or neglect. In OSA’s opinion, allowing contracted service providers to determine disciplinary measures does not provide adequate assurance that any such measures will effectively resolve problems and prevent reoccurrence. If DYS developed standard disciplinary guidelines, it could require its contractors to follow them, thereby better ensuring that the measures taken by contractors would be appropriate, consistent, and effective in reducing reoccurrences of abuse and/or neglect.
| Date published: | March 14, 2022 |
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