2012 -- H 7839 SUBSTITUTE A AS AMENDED | |
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LC01750/SUB A | |
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STATE OF RHODE ISLAND | |
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IN GENERAL ASSEMBLY | |
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JANUARY SESSION, A.D. 2012 | |
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____________ | |
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A N A C T | |
RELATING TO CRIMINAL OFFENSES -- ASSAULTS | |
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Introduced By: Representatives Naughton, Slater, Valencia, Martin, and Diaz | |
Date Introduced: February 28, 2012 | |
Referred To: House Judiciary | |
It is enacted by the General Assembly as follows: | |
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SECTION 1. Sections 11-5-10.2, 11-5-11 and 11-5-12 of the General Laws in Chapter |
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11-5 entitled "Assaults" are hereby amended to read as follows: |
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11-5-10.2. Assault on persons with severe impairments causing serious bodily injury. |
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-- (a) Any person who shall commit an assault or battery, or both, upon a person, with severe |
1-5 |
impairments causing serious bodily injury, shall be deemed to have committed a felony and shall |
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be imprisoned for not less than two (2) years but not more than twenty (20) years, or fined not |
1-7 |
more than five thousand dollars ($5,000), or both. Every person so convicted shall be ordered to |
1-8 |
make restitution to the victim of the offense or to perform up to five hundred (500) hours of |
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public community restitution work, or both, or any combination of them imposed by the |
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sentencing judge. The court may not waive the obligation to make restitution and/or public |
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community restitution work. The restitution and/or public community restitution work shall be in |
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addition to any fine or sentence which may be imposed and not in lieu of the fine or sentence. |
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(b) "Serious bodily injury" means physical injury that: |
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(1) Creates a substantial risk of death, serious disfigurement; |
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(2) Causes protracted loss or impairment of the function of any bodily part, member or |
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organ; or |
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(3) Causes serious permanent disfigurement. |
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(c) For the purposes of this section: |
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(1) "Adult" means a person over the age of eighteen (18). |
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(2) "Major life activities" means: (i) mobility; (ii) self-care; (iii) communication; (iv) |
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receptive and/or expressive language; (v) learning; (vi) self-direction; (vii) capacity for |
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independent living; or (viii) economic self-sufficiency. |
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(3) "Person with severe impairments" means a child or adult who has a disability which |
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is attributable to a mental or physical impairment or combination of mental and physical |
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impairments and results in substantial functional limitations in one or more major life activities. |
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(d) Violations of this section shall be reported to the local police department. |
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(e) After July 1, 2007 pursuant to section 40-8.5-2, the local police department may |
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request the department of |
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disabilities and hospitals provide crisis intervention services for the adult victim with severe |
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impairments when: |
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(1) Necessary to ensure the immediate health and safety of the adult victim; |
2-32 |
(2) The adult victim relies on the person believed to have committed the assault and/or |
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battery, for assistance in performing three (3) or more major life activities; and |
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(3) After the victim is informed of his or her right to refuse crisis intervention and/or |
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supportive services. |
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11-5-11. Assault on persons with severe impairments. -- (a) For the purposes of this |
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section: |
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(1) "adult" means a person over the age of eighteen (18). |
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(2) "major life activities" means: (i) mobility; (ii) self-care; (iii) communication; (iv) |
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receptive and/or expressive language; (v) learning; (vi) self-direction; (vii) capacity for |
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independent living; or (viii) economic self-sufficiency. |
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(3) "person with severe impairments" means a child or adult who has a disability which |
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is attributable to a mental or physical impairment or combination of mental and physical |
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impairments which results in a substantial limitation on the person's ability to function |
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independently in the family or community and in one or more major life activities. |
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(b) Any person who shall commit an assault and battery upon a person who is severely |
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impaired as defined in subsection (a) of this section, causing bodily injury, shall be deemed to |
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have committed a felony and shall be imprisoned not exceeding five (5) years, or fined not |
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exceeding two thousand dollars ($2,000), or both. |
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(c) Violations of this section shall be reported to the local police department. |
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(d) After July 1, 2007 pursuant to section 40-8.5-2, the local police department may |
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request the department of |
2-53 |
disabilities and hospitals provide crisis intervention services for the adult victim with severe |
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impairments when: |
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(1) Necessary to ensure the immediate health and safety of the adult victim; |
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(2) The adult victim relies on the person believed to have committed the assault and/or |
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battery, for assistance in performing three (3) or more major life activities; and |
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(3) After the victim is informed of his or her right to refuse crisis intervention and/or |
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supportive services. |
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11-5-12. Abuse, neglect and/or exploitation of adults with severe impairments. -- (a) |
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Any person primarily responsible for the care of an adult with severe impairments who shall |
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willfully and knowingly abuse, neglect or exploit that adult shall be subject to a fine of not more |
3-9 |
than two thousand dollars ($2,000), or imprisoned not more than five (5) years, or both, and |
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ordered to make full restitution of any funds as the result of any exploitation which results in the |
3-11 |
misappropriation of funds. Every person convicted of or placed on probation for violation of this |
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section shall be ordered by the sentencing judge to attend appropriate professional counseling to |
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address his or her abusive behavior. |
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(b) As used in this section: |
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(1) "Abuse" means the subjection of an adult with a severe impairment to willful |
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infliction of physical pain, willful deprivation of services necessary to maintain the physical or |
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mental health of the person, or unreasonable confinement. |
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(2) "Adult with severe impairments" means a person over the age of eighteen (18) who |
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has a disability which is attributable to a mental or physical impairment or combination of mental |
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and physical impairments and results in substantial functional limitations in one or more of the |
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following areas of major life activity: (i) mobility; (ii) self-care; (iii) communication; (iv) |
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receptive and/or expressive language; (v) learning; (vi) self-direction; (vii) capacity for |
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independent living; or (viii) economic self-sufficiency. |
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(3) "Exploitation" means an act or process of taking pecuniary advantage of impaired |
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persons by use of undue influence, harassment, duress, deception, false representation, false |
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pretenses, or misappropriation of funds. |
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(4) "Neglect" means the willful refusal to provide services necessary to maintain the |
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physical or mental health of an adult with severe impairments. |
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(5) "Person primarily responsible for care" or "caregiver" means any person who is for a |
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significant period of time the primary caregiver or is primarily responsible for the management of |
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the funds of an adult with severe impairments. |
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(c) Violations of this section shall be reported to the local police department. |
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(d) After July 1, 2007 pursuant to section 40-8.5-2, the local police department may |
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request the department of |
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disabilities and hospitals provide crisis intervention services for the adult victim with severe |
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impairments when: |
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(1) necessary to ensure the immediate health and safety of the adult victim; |
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(2) the adult victim relies on the person believed to have committed the abuse, neglect |
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and/or exploitation, for assistance in performing three (3) or more major life activities; and |
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(3) After the victim is informed of his or her right to refuse crisis intervention and/or |
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supportive services. |
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(e) Any person who fails to report known or suspected abuse or neglect shall be guilty of |
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a misdemeanor and upon conviction shall be subject to a fine of not more than five hundred |
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dollars ($500). |
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(f) Nothing in this section shall be interpreted to apply to the discontinuance of life- |
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support systems or life-sustaining treatment for an adult for whom, if the treatment were |
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terminated, death may result. |
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(g) Any person participating in good faith in making a report pursuant to this chapter, |
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excluding any perpetrator or conspirator of the acts, shall have immunity from any civil liability |
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that might otherwise be incurred or imposed. |
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(h) Nothing in this section shall be interpreted to prohibit the use of any medical or |
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psychological treatment procedure designed and conducted in accordance with applicable |
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professional standards when performed by appropriately trained personnel under the supervision |
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of a person or facility licensed or approved by the state of Rhode Island and when any consent as |
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is required by law has been obtained. |
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(i) Nothing in this chapter shall be construed to mean a person is abused or neglected for |
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the sole reason that the person is being furnished or relies upon treatment by spiritual means |
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through prayer alone in accordance with the tenets and practices of a church or religious |
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denomination recognized by the laws of this state. |
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(j) Nothing in this chapter shall be construed to mean a person is abused or neglected |
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when the parent or legal guardian of an adult with severe impairments, who is the person |
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primarily responsible for care of the adult, (1) decides, in good faith, not to accept support |
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services from a governmental agency, which in the opinion of the parent or legal guardian and the |
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adult, is considered to be inappropriate or inconsistent with the best interests of that adult; or (2) |
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decides, in good faith, to reduce or discontinue assistance to that adult who is developing, |
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acquiring or practicing independent decision-making or living skills. |
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SECTION 2. Sections 23-17.8-2 and 23-17.8-3.1 of the General Laws in Chapter 23-17.8 |
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entitled "Abuse in Health Care Facilities" are hereby amended to read as follows: |
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23-17.8-2. Duty to report. -- (a) Any physician, medical intern, registered nurse, |
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licensed practical nurse, nurse's aide, orderly, certified nursing assistant, medical examiner, |
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dentist, optometrist, optician, chiropractor, podiatrist, coroner, police officer, emergency medical |
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technician, fire-fighter, speech pathologist, audiologist, social worker, pharmacist, physical or |
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occupational therapist, or health officer, or any person, within the scope of their employment at a |
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facility or in their professional capacity, who has knowledge of or reasonable cause to believe that |
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a patient or resident in a facility has been abused, mistreated, or neglected shall make, within |
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twenty-four (24) hours or by the end of the next business day, a telephone report to the director of |
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the department of health or his or her designee for those incidents involving health care facilities, |
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and in addition to the office of the state long-term care ombudsperson for those incidents |
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involving nursing facilities, assisted living residences, home care and home nursing care |
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providers, veterans' homes and long-term care units in Eleanor Slater Hospital, or to the director |
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of the department of |
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and hospitals or his or her designee for those incidents involving community residences for |
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people who are mentally retarded or persons with developmental disabilities. The report shall |
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contain: |
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(1) The name, address, telephone number, occupation, and employer's address and the |
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phone number of the person reporting; |
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(2) The name and address of the patient or resident who is believed to be the victim of |
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the abuse, mistreatment, or neglect; |
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(3) The details, observations, and beliefs concerning the incident(s); |
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(4) Any statements regarding the incident made by the patient or resident and to whom |
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they were made; |
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(5) The date, time, and place of the incident; |
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(6) The name of any individual(s) believed to have knowledge of the incident; |
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(7) The name of any individual(s) believed to have been responsible for the incident. |
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(b) In addition to those persons required to report pursuant to this section, any other |
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person may make a report if that person has reasonable cause to believe that a patient or resident |
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of a facility has been abused, mistreated, or neglected. |
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(c) Any person required to make a report pursuant to this section shall be deemed to have |
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complied with these requirements if a report is made to a high managerial agent of the facility in |
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which the alleged incident occurred. Once notified, the high managerial agent shall be required to |
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meet all reporting requirements of this section within the time frames specified by this chapter. |
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(d) Telephone reports made pursuant to subsection (a) shall be followed-up within three |
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(3) business days with a written report. |
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23-17.8-3.1. Physician's, certified registered nurse practitioner's and physician |
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assistant's report of examination -- Duty of facility. -- Whenever a facility shall receive a |
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report by a person other than a physician or a certified registered nurse practitioner or physician |
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assistant that a patient or resident of the facility has been harmed as a result of abuse, neglect, or |
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mistreatment, the facility shall have the patient examined by a licensed physician or a certified |
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registered nurse practitioner or physician assistant. It shall be mandatory for the physician or |
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certified registered nurse practitioner or physician assistant to make a preliminary report of his or |
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her findings to the department of health for a health care facility, or to the department of |
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|
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for a community residence for people who are mentally retarded or persons with developmental |
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disabilities and to the facility within forty-eight (48) hours after his or her examination, and a |
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written report within five (5) days after his or her examination. |
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SECTION 3. Section 40-8.5-2 of the General Laws in Chapter 40-8.5 entitled "Health |
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Care for Elderly and Disabled Residents Act" is hereby amended to read as follows: |
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40-8.5-2. |
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neglect and/or exploitation. -- (a) As used in this section the terms: |
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(1) "Adult victim with severe impairments" means: |
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(i) A person over the age of eighteen (18) who has a disability which is attributable to a |
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mental or physical impairment or combination of mental and physical impairments and results in |
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substantial functional limitations in three (3) or more major life activities; |
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(ii) Is an alleged victim of abuse, neglect or exploitation pursuant to section 11-5-12; or |
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assault pursuant to section 11-5-10.2 or 11-5-11 by a caregiver of the victim; |
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(iii) The adult victim relies on the person believed to have committed the abuse, neglect, |
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and/or exploitation, for assistance in performing three (3) or more major life activities; and |
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(iv) Crisis intervention services are necessary to ensure the immediate health and safety |
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of the adult victim. |
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(2) "Crisis intervention services" means the short term provision of health care and |
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residential services in the immediate hours and days following the abuse, neglect and/or |
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exploitation of an adult victim with severe impairments; |
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(3) "Major life activities" mean: (i) mobility; (ii) self-care; (iii) communication; (iv) |
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receptive and/or expressive language; (v) learning; (vi) self-direction; (vii) capacity for |
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independent living; or (viii) economic self-sufficiency; |
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(4) “Secretary” means the secretary of the executive office of health and human services; |
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and |
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|
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severe impairments, and when appropriate that victim's family. |
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(b) After July 1, 2007, local police departments may request the department of |
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|
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intervention services for the adult victim with severe impairments when: |
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(1) Necessary to ensure the immediate health and safety of the adult victim; and |
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(2) The adult victim with severe impairments relies on the person believed to have |
7-10 |
committed the abuse, neglect and/or exploitation for assistance in performing three (3) or more |
7-11 |
major life activities |
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(3) After the victim is informed of his or her right to refuse crisis intervention and/or |
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supportive services. |
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(c) (1) If the department of |
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developmental disabilities and hospitals |
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services are necessary, the victim and when appropriate that victim's family will be referred to the |
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public and private agencies and departments whose supportive services are within its statutory |
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and/or regulatory responsibility, as are needed by the victim. |
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(2) In developing the supportive services care plan, the adult victim with severe |
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impairments' rights to self-determination and lifestyle preferences commensurate with his or her |
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needs shall be of prime consideration. |
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(3) If the adult victim with severe impairments withdraws consent or refuses to accept |
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crisis intervention or supportive services, the services shall not be provided. |
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(d) The department of human services is hereby authorized to seek federal approval of a |
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state plan amendment to its title XIX state plan to initiate crisis intervention services and support |
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services for adults who qualify for title XIX services and are adult victims |
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impairments of abuse, assault, neglect or exploitation. |
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(e) The secretary shall recognize the statewide toll free, twenty-four (24) hour a day, |
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seven (7) days quality assurance hotline operated by the department of behavioral healthcare, |
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developmental disabilities and hospitals, and authorized pursuant to section 40.1-26-10, for the |
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use of the general public to report abuse, neglect, and exploitation and/or request crisis |
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intervention and/or supportive services for adult victims with severe impairments. |
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SECTION 4. Section 40.1-5-40.1 of the General Laws in Chapter 40.1-5 entitled "Mental |
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Health Law" is hereby amended to read as follows: |
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40.1-5-40.1. Duty to report. -- Any employee who has reasonable cause to believe that |
8-2 |
an assault or a battery has been committed upon a patient shall make an immediate report, |
8-3 |
including the identity of parties and witnesses and details of the incident, to the director of the |
8-4 |
department of |
8-5 |
hospitals |
8-6 |
report to be investigated immediately and further shall notify the mental health advocate and |
8-7 |
appropriate law enforcement agencies of the investigation. Any person who fails to make a report |
8-8 |
shall be guilty of a misdemeanor punishable by a fine of not more than five hundred dollars |
8-9 |
($500). |
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SECTION 5. Section 40.1-5.3-17 of the General Laws in Chapter 40.1-5.3 entitled |
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"Incompetency to Stand Trial and Persons Adjudged Not Guilty by Reason of Insanity" is hereby |
8-12 |
amended to read as follows: |
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40.1-5.3-17. Penalties for deprivation of rights -- Disciplinary action -- Duty to |
8-14 |
report. -- (a) Any person who willfully withholds from or denies to a person committed to a |
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facility pursuant to this chapter any of his or her rights as herein granted, shall, on conviction |
8-16 |
thereof, be fined not exceeding two thousand dollars ($2,000) or imprisoned not exceeding two |
8-17 |
(2) years. |
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(b) Any employee of a facility who shall deny to or withhold from any person any right |
8-19 |
granted him or her by this chapter shall, independently of the above criminal sanctions, be subject |
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to such disciplinary action as the officer in charge shall see fit to impose, after notice, a hearing, |
8-21 |
and a finding of a violation of the right. |
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(c) Any employee who has reasonable cause to believe that an assault or a battery has |
8-23 |
been committed upon a committed person shall make an immediate report, including the identity |
8-24 |
of parties and witnesses and details of the incident, to the director of the department of |
8-25 |
|
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or his or her designee. The director of the department shall cause the report to be investigated |
8-27 |
immediately and further shall notify the mental health advocate and appropriate law enforcement |
8-28 |
agencies of the results of the investigation. Any person who fails to make such a report shall be |
8-29 |
guilty of a misdemeanor punishable by a fine of not more than five hundred dollars ($500). |
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SECTION 6. Sections 40.1-27-2, 40.1-27-3 and 40.1-27-5 of the General Laws in |
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Chapter 40.1-27 entitled "Penalties for Abuse of Persons with Developmental Disabilities" are |
8-32 |
hereby amended to read as follows: |
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40.1-27-2. Duty to report. -- (a) Any person within the scope of their employment at a |
8-34 |
program or in their professional capacity who has knowledge of or reasonable cause to believe |
9-1 |
that a participant in a program has been abused, mistreated or neglected shall make, within |
9-2 |
twenty-four (24) hours or by the end of the next business day, a written report to the director of |
9-3 |
the department of |
9-4 |
and hospitals |
9-5 |
(1) The name, address, telephone number, occupation, and employer's address and the |
9-6 |
phone number of the person reporting; |
9-7 |
(2) The name and address of the participant who is believed to be the victim of the |
9-8 |
abuse, mistreatment, or neglect; |
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(3) The details, observations, and beliefs concerning the incident(s); |
9-10 |
(4) Any statements regarding the incident made by the participant and to whom they |
9-11 |
were made; |
9-12 |
(5) The date, time, and place of the incident; |
9-13 |
(6) The name of any individual(s) believed to have knowledge of the incident; and |
9-14 |
(7) The name of any individual(s) believed to have been responsible for the incident. |
9-15 |
(b) In addition to those persons required to report pursuant to this section, any other |
9-16 |
person may make a report if that person has reasonable cause to believe that a participant has |
9-17 |
been abused, mistreated, or neglected. |
9-18 |
40.1-27-3. |
9-19 |
|
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developmental disabilities and hospitals. -- The director of the department of |
9-21 |
|
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her designee shall: |
9-23 |
(1) Notify the attorney general or his or her designee, the chair of the program's human |
9-24 |
rights committee forthwith upon receipt of an oral or written report made pursuant to section |
9-25 |
40.1-27-2; |
9-26 |
(2) Investigate and evaluate or cause to be investigated and evaluated the information |
9-27 |
reported in those reports. The investigation and evaluation shall be made within twenty-four (24) |
9-28 |
hours if the director of the department of |
9-29 |
developmental disabilities and hospitals |
9-30 |
participant's health or safety is in immediate danger of further abuse or neglect and within seven |
9-31 |
(7) days for all other reports. The investigations shall include a visit to the program, an interview |
9-32 |
with the participant allegedly abused, mistreated or neglected, an interview with all witnesses to |
9-33 |
the alleged incident, a determination of the nature, extent, and cause or causes of the injuries, the |
9-34 |
identity of the person or persons responsible therefor, all other pertinent facts and |
10-1 |
recommendations to prevent further abuse, mistreatment or neglect of the participant or other |
10-2 |
program participants. The determination shall be in writing; |
10-3 |
(3) Evaluate the environment in the program named in the report and make a written |
10-4 |
determination of the risk of physical or emotional injury to any other participants in the same |
10-5 |
program; |
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(4) Forward to the attorney general and the chair of the program's human rights |
10-7 |
committee within fifteen (15) days after a case is initially reported pursuant to section 40.1-27-2 a |
10-8 |
summary of the findings and recommendations on each case; |
10-9 |
(5) If the director of the department of |
10-10 |
developmental disabilities and hospitals |
10-11 |
participant had died as a result of abuse, mistreatment, or neglect, immediately report the death to |
10-12 |
the attorney general and to the office of the medical examiner. The office of the medical examiner |
10-13 |
shall investigate the report and communicate its preliminary findings, orally within seventy-two |
10-14 |
(72) hours, and in writing within seven (7) working days to the attorney general and to the |
10-15 |
department of |
10-16 |
hospitals |
10-17 |
findings and conclusions, with the basis therefore to the same parties within sixty (60) days; |
10-18 |
(6) Promulgate such regulations as may be necessary to implement the provisions of this |
10-19 |
chapter; and |
10-20 |
(7) Maintain a file of the written reports prepared pursuant to this chapter. The written |
10-21 |
reports shall be confidential, but shall be released to the attorney general, to a court of competent |
10-22 |
jurisdiction, and upon written request to the participant, his or her counsel, the reporting person or |
10-23 |
agency, the appropriate review board or a social worker assigned to the case. |
10-24 |
40.1-27-5. Physician's report of examination -- Duty of program. -- Whenever a |
10-25 |
program shall receive a report by a person other than a physician that a participant has been |
10-26 |
harmed as a result of abuse, neglect, or mistreatment, the program shall have the patient examined |
10-27 |
by a licensed physician. It shall be mandatory for the physician to make a preliminary report of |
10-28 |
his or her findings to the director of the department of |
10-29 |
healthcare, developmental disabilities and hospitals |
10-30 |
eight (48) hours after his or her examination, and a written report within five (5) days after his or |
10-31 |
her examination. |
11-32 |
SECTION 7. This act shall take effect on July 1, 2012. |
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LC01750/SUB A | |
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EXPLANATION | |
BY THE LEGISLATIVE COUNCIL | |
OF | |
A N A C T | |
RELATING TO CRIMINAL OFFENSES -- ASSAULTS | |
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This act would replace references to the department of mental health, retardation, and |
12-2 |
hospitals with the department of behavioral healthcare, developmental disabilities and hospitals in |
12-3 |
the criminal assault and abuse laws protecting adults with severe impairments. The act would also |
12-4 |
require a statewide toll free, twenty-four (24) hour a day, seven (7) day a week telephone line, to |
12-5 |
report abuse, neglect, and exploitation and/or request crisis intervention and/or supportive |
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services for adult victim with severe impairments. The act would clarify the right of an adult |
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victim with severe impairments of an assault, to refuse crisis intervention and/or supportive |
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services. |
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This act would take effect on July 1, 2012. |
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LC01750/SUB A | |
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