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OPWDD appeals Tony Otto’s hearing victory; family vows to continue the fight

By KATE MOSTACCIO

A big smile broke out across Tony Otto’s face as his lawyer’s voice conveyed the news over the phone held to his ear — he had won his hearing and could stay in his home.

Otto, a 51-year-old quadriplegic man who has lived in OPWDD residential facilities for more than 25 years, is facing discharge from his current facility in Rome due to the state Office for People with Developmental Disabilities’ (OPWDD) assertion it is no longer able to provide him adequate nursing care.

“He’s very happy,” said Barbara Destito, Otto’s mother. “It’s a relief for everybody. I know the state can object, but I hope they don’t. They should try harder to get nurses.”

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At least, that was the scene June 11. Otto and his family’s relief and happiness was short-lived.

OPWDD filed an appeal June 21 continuing to assert that the evidence they presented is correct and claiming that the hearing officer did not “ultimately apply the correct standard” in the case.

The hearing officer, after testimony from four witnesses on behalf of OPWDD and four on behalf of Otto, sided with Otto and his family, stating in his decision: “I find it in Tony’s overall best interests to remain where he is, and which he considers his home, while OPWDD continues its efforts to hire additional staff.”

“His care is very good,” Otto’s mother said. “He should stay with familiar doctors in a hospital that knows him. A lot of the [hearing] decision was about his social life. That’s a lot of what the hearing officer based it on, I believe.

“Tony is upset they appealed,” Destito said. “It’s devastating. We thought it was a fair hearing and we thought the hearing officer was very fair to both sides and everybody was happy with the hearing.”

The hearing officer cited many of the same facts Otto’s family and PEF raised throughout the Home Strong campaign — his immersion in the local community, his ability to visit movie theaters, shopping centers, and family events and gatherings. All of which he would not be able to do if he was discharged and moved to a skilled nursing facility.

“The hearing officer’s decision really supported all the positions and arguments we put forward with Tony’s family,” PEF Vice President Randi DiAntonio said. “Clearly, the hearing officer heard what we were saying and agreed.”

Upon hearing of OPWDD’s appeal, DiAntonio was disappointed. “It’s absolutely shameful,” she said, “and against the mission of the agency. For a while, Tony felt great. He was able to let out a breath of relief that he was going to be able to live his best life in the community he was born and raised in. I think it’s shameful that an agency that says its mission is to put people first is claiming that they can’t provide nursing care to someone that has a meaningful life in the community.”

DiAntonio said the issue is widespread and there are others out there in the same situation.

“We have work to do to make sure that the public and families are aware that they have a right to have their loved ones taken care of in community settings with our incredible members, who do a great job, taking care of them,” she said. “We know this is happening all over the state and we need to hear from families and our members because this is wrong on so many levels and we have an obligation to make sure people are served in the settings of their choice. They deserve to lead the most meaningful lives that they can.”

Otto’s longtime friend and licensed social worker, Jodi Nettleton, was thrilled for Otto’s hearing victory. “It represents OPWDD’s mission to support people with what they need in the setting they choose to live. Nursing home placement should not be part of the continuum of care for the people we support because we are not paying professionals enough to compete with the private sector.”

Hearing OPWDD had appealed was not surprising, just disappointing. “It is unfair to promise individuals and families a delivery system which puts the person first in the center of the plan, only to then say but we can’t provide that,” she said. “Tony is accustomed to the excellent care and treatment that we provide in OPWDD and he should be afforded that opportunity. I agree with the [hearing officer’s] decision.”

In the appeal, OPWDD stated it tried “every recruitment effort they could possibly think of. Despite these extensive efforts OPWDD has been unsuccessful in hiring and retaining RNs.”

DiAntonio begged to differ, saying they aren’t giving nurses what they need — and that’s why they can’t hire or retain them. “We know our nurses aren’t treated very well and they aren’t paid enough,” she said. “They aren’t trying to fix what nurses are complaining about. The real issues are salary, not having proper equipment, all of those things.”

Nettleton said it’s easy to move people around and avoid the real issue behind the nursing shortage. “Pay your nurses a competitive wage and they will come to work for the state,” she said.

Otto’s case has shed light on a larger problem in New York state, Nettleton said. “There are many others in New York state like Tony who have no family to help support them who need a voice,” she said. “Tony’s family was critical in supporting him and shedding light on his situation. The community members and politicians of Rome came out to stand by his family at the rally. This is how we support people. I was so happy to see Tony’s smiling face in reaction to his hearing. Stay Home Strong, Tony!”

Nettleton said this facility is where Tony belongs. “We do it better,” she said of OPWDD facilities like Tony’s. “Hardworking PEF members are the backbone of it. They know Tony. They’ve known him for half of his life.”

Otto and his family aren’t backing down. “It’s not the end,” Destito said. “We can keep fighting. It’s important to us that Tony can stay in his community.”

PEF stands behind the issue, DiAntonio said. “The union really cares about this issue,” she said. “Cares about our members and about the people they serve. I think everybody should care about this.”

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