2012 -- S 2730 AS AMENDED

=======

LC01816

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

____________

A N A C T

RELATING TO CRIMINAL OFFENSES -- ASSAULTS

     Introduced By: Senators McCaffrey, Metts, and Jabour

     Date Introduced: March 06, 2012

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

1-1

     SECTION 1. Sections 11-5-10.2, 11-5-11 and 11-5-12 of the General Laws in Chapter

1-2

11-5 entitled "Assaults" are hereby amended to read as follows:

1-3

     11-5-10.2. Assault on persons with severe impairments causing serious bodily injury.

1-4

-- (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

1-6

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

1-9

public community restitution work, or both, or any combination of them imposed by the

1-10

sentencing judge. The court may not waive the obligation to make restitution and/or public

1-11

community restitution work. The restitution and/or public community restitution work shall be in

1-12

addition to any fine or sentence which may be imposed and not in lieu of the fine or sentence.

1-13

      (b) "Serious bodily injury" means physical injury that:

1-14

      (1) Creates a substantial risk of death, serious disfigurement;

1-15

      (2) Causes protracted loss or impairment of the function of any bodily part, member or

1-16

organ; or

1-17

      (3) Causes serious permanent disfigurement.

1-18

      (c) For the purposes of this section:

1-19

      (1) "Adult" means a person over the age of eighteen (18).

2-20

      (2) "Major life activities" means: (i) mobility; (ii) self-care; (iii) communication; (iv)

2-21

receptive and/or expressive language; (v) learning; (vi) self-direction; (vii) capacity for

2-22

independent living; or (viii) economic self-sufficiency.

2-23

      (3) "Person with severe impairments" means a child or adult who has a disability which

2-24

is attributable to a mental or physical impairment or combination of mental and physical

2-25

impairments and results in substantial functional limitations in one or more major life activities.

2-26

      (d) Violations of this section shall be reported to the local police department.

2-27

      (e) After July 1, 2007 pursuant to section 40-8.5-2, the local police department may

2-28

request the department of mental health, retardation, behavioral healthcare, developmental

2-29

disabilities and hospitals provide crisis intervention services for the adult victim with severe

2-30

impairments when:

2-31

      (1) Necessary to ensure the immediate health and safety of the adult victim; and

2-32

      (2) The adult victim relies on the person believed to have committed the assault and/or

2-33

battery, for assistance in performing three (3) or more major life activities; and

2-34

     (3) After the victim is informed of his or her right to refuse crisis intervention and/or

2-35

supportive services.

2-36

     11-5-11. Assault on persons with severe impairments. -- (a) For the purposes of this

2-37

section:

2-38

      (1) "adult" means a person over the age of eighteen (18).

2-39

      (2) "major life activities" means: (i) mobility; (ii) self-care; (iii) communication; (iv)

2-40

receptive and/or expressive language; (v) learning; (vi) self-direction; (vii) capacity for

2-41

independent living; or (viii) economic self-sufficiency.

2-42

      (3) "person with severe impairments" means a child or adult who has a disability which

2-43

is attributable to a mental or physical impairment or combination of mental and physical

2-44

impairments which results in a substantial limitation on the person's ability to function

2-45

independently in the family or community and in one or more major life activities.

2-46

      (b) Any person who shall commit an assault and battery upon a person who is severely

2-47

impaired as defined in subsection (a) of this section, causing bodily injury, shall be deemed to

2-48

have committed a felony and shall be imprisoned not exceeding five (5) years, or fined not

2-49

exceeding two thousand dollars ($2,000), or both.

2-50

      (c) Violations of this section shall be reported to the local police department.

2-51

      (d) After July 1, 2007 pursuant to section 40-8.5-2, the local police department may

2-52

request the department of mental health, retardation, behavioral healthcare, developmental

2-53

disabilities and hospitals provide crisis intervention services for the adult victim with severe

2-54

impairments when:

3-1

      (1) Necessary to ensure the immediate health and safety of the adult victim; and

3-2

      (2) The adult victim relies on the person believed to have committed the assault and/or

3-3

battery, for assistance in performing three (3) or more major life activities; and

3-4

     (3) After the victim is informed of his or her right to refuse crisis intervention and/or

3-5

supportive services.

3-6

     11-5-12. Abuse, neglect and/or exploitation of adults with severe impairments. -- (a)

3-7

Any person primarily responsible for the care of an adult with severe impairments who shall

3-8

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

3-10

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

3-12

section shall be ordered by the sentencing judge to attend appropriate professional counseling to

3-13

address his or her abusive behavior.

3-14

      (b) As used in this section:

3-15

      (1) "Abuse" means the subjection of an adult with a severe impairment to willful

3-16

infliction of physical pain, willful deprivation of services necessary to maintain the physical or

3-17

mental health of the person, or unreasonable confinement.

3-18

      (2) "Adult with severe impairments" means a person over the age of eighteen (18) who

3-19

has a disability which is attributable to a mental or physical impairment or combination of mental

3-20

and physical impairments and results in substantial functional limitations in one or more of the

3-21

following areas of major life activity: (i) mobility; (ii) self-care; (iii) communication; (iv)

3-22

receptive and/or expressive language; (v) learning; (vi) self-direction; (vii) capacity for

3-23

independent living; or (viii) economic self-sufficiency.

3-24

      (3) "Exploitation" means an act or process of taking pecuniary advantage of impaired

3-25

persons by use of undue influence, harassment, duress, deception, false representation, false

3-26

pretenses, or misappropriation of funds.

3-27

      (4) "Neglect" means the willful refusal to provide services necessary to maintain the

3-28

physical or mental health of an adult with severe impairments.

3-29

      (5) "Person primarily responsible for care" or "caregiver" means any person who is for a

3-30

significant period of time the primary caregiver or is primarily responsible for the management of

3-31

the funds of an adult with severe impairments.

3-32

      (c) Violations of this section shall be reported to the local police department.

3-33

      (d) After July 1, 2007 pursuant to section 40-8.5-2, the local police department may

3-34

request the department of mental health, retardation, behavioral healthcare, developmental

4-1

disabilities and hospitals provide crisis intervention services for the adult victim with severe

4-2

impairments when:

4-3

      (1) necessary to ensure the immediate health and safety of the adult victim; and

4-4

      (2) the adult victim relies on the person believed to have committed the abuse, neglect

4-5

and/or exploitation, for assistance in performing three (3) or more major life activities; and

4-6

     (3) After the victim is informed of his or her right to refuse crisis intervention and/or

4-7

supportive services.

4-8

      (e) Any person who fails to report known or suspected abuse or neglect shall be guilty of

4-9

a misdemeanor and upon conviction shall be subject to a fine of not more than five hundred

4-10

dollars ($500).

4-11

      (f) Nothing in this section shall be interpreted to apply to the discontinuance of life-

4-12

support systems or life-sustaining treatment for an adult for whom, if the treatment were

4-13

terminated, death may result.

4-14

      (g) Any person participating in good faith in making a report pursuant to this chapter,

4-15

excluding any perpetrator or conspirator of the acts, shall have immunity from any civil liability

4-16

that might otherwise be incurred or imposed.

4-17

      (h) Nothing in this section shall be interpreted to prohibit the use of any medical or

4-18

psychological treatment procedure designed and conducted in accordance with applicable

4-19

professional standards when performed by appropriately trained personnel under the supervision

4-20

of a person or facility licensed or approved by the state of Rhode Island and when any consent as

4-21

is required by law has been obtained.

4-22

      (i) Nothing in this chapter shall be construed to mean a person is abused or neglected for

4-23

the sole reason that the person is being furnished or relies upon treatment by spiritual means

4-24

through prayer alone in accordance with the tenets and practices of a church or religious

4-25

denomination recognized by the laws of this state.

4-26

      (j) Nothing in this chapter shall be construed to mean a person is abused or neglected

4-27

when the parent or legal guardian of an adult with severe impairments, who is the person

4-28

primarily responsible for care of the adult, (1) decides, in good faith, not to accept support

4-29

services from a governmental agency, which in the opinion of the parent or legal guardian and the

4-30

adult, is considered to be inappropriate or inconsistent with the best interests of that adult; or (2)

4-31

decides, in good faith, to reduce or discontinue assistance to that adult who is developing,

4-32

acquiring or practicing independent decision-making or living skills.

4-33

     SECTION 2. Sections 23-17.8-2 and 23-17.8-3.1 of the General Laws in Chapter 23-17.8

4-34

entitled "Abuse in Health Care Facilities" are hereby amended to read as follows:

5-1

     23-17.8-2. Duty to report. -- (a) Any physician, medical intern, registered nurse,

5-2

licensed practical nurse, nurse's aide, orderly, certified nursing assistant, medical examiner,

5-3

dentist, optometrist, optician, chiropractor, podiatrist, coroner, police officer, emergency medical

5-4

technician, fire-fighter, speech pathologist, audiologist, social worker, pharmacist, physical or

5-5

occupational therapist, or health officer, or any person, within the scope of their employment at a

5-6

facility or in their professional capacity, who has knowledge of or reasonable cause to believe that

5-7

a patient or resident in a facility has been abused, mistreated, or neglected shall make, within

5-8

twenty-four (24) hours or by the end of the next business day, a telephone report to the director of

5-9

the department of health or his or her designee for those incidents involving health care facilities,

5-10

and in addition to the office of the state long-term care ombudsperson for those incidents

5-11

involving nursing facilities, assisted living residences, home care and home nursing care

5-12

providers, veterans' homes and long-term care units in Eleanor Slater Hospital, or to the director

5-13

of the department of mental health, retardation, behavioral healthcare, developmental disabilities

5-14

and hospitals or his or her designee for those incidents involving community residences for

5-15

people who are mentally retarded or persons with developmental disabilities. The report shall

5-16

contain:

5-17

      (1) The name, address, telephone number, occupation, and employer's address and the

5-18

phone number of the person reporting;

5-19

      (2) The name and address of the patient or resident who is believed to be the victim of

5-20

the abuse, mistreatment, or neglect;

5-21

      (3) The details, observations, and beliefs concerning the incident(s);

5-22

      (4) Any statements regarding the incident made by the patient or resident and to whom

5-23

they were made;

5-24

      (5) The date, time, and place of the incident;

5-25

      (6) The name of any individual(s) believed to have knowledge of the incident;

5-26

      (7) The name of any individual(s) believed to have been responsible for the incident.

5-27

      (b) In addition to those persons required to report pursuant to this section, any other

5-28

person may make a report if that person has reasonable cause to believe that a patient or resident

5-29

of a facility has been abused, mistreated, or neglected.

5-30

      (c) Any person required to make a report pursuant to this section shall be deemed to have

5-31

complied with these requirements if a report is made to a high managerial agent of the facility in

5-32

which the alleged incident occurred. Once notified, the high managerial agent shall be required to

5-33

meet all reporting requirements of this section within the time frames specified by this chapter.

6-34

      (d) Telephone reports made pursuant to subsection (a) shall be followed-up within three

6-35

(3) business days with a written report.

6-36

     23-17.8-3.1. Physician's, certified registered nurse practitioner's and physician

6-37

assistant's report of examination -- Duty of facility. -- Whenever a facility shall receive a

6-38

report by a person other than a physician or a certified registered nurse practitioner or physician

6-39

assistant that a patient or resident of the facility has been harmed as a result of abuse, neglect, or

6-40

mistreatment, the facility shall have the patient examined by a licensed physician or a certified

6-41

registered nurse practitioner or physician assistant. It shall be mandatory for the physician or

6-42

certified registered nurse practitioner or physician assistant to make a preliminary report of his or

6-43

her findings to the department of health for a health care facility, or to the department of mental

6-44

health, retardation, behavioral healthcare, developmental disabilities and hospitals and hospitals

6-45

for a community residence for people who are mentally retarded or persons with developmental

6-46

disabilities and to the facility within forty-eight (48) hours after his or her examination, and a

6-47

written report within five (5) days after his or her examination.

6-48

     SECTION 3. Section 40-8.5-2 of the General Laws in Chapter 40-8.5 entitled "Health

6-49

Care for Elderly and Disabled Residents Act" is hereby amended to read as follows:

6-50

     40-8.5-2. Services for adult victims with severe impairments of abuse, neglect and/or

6-51

exploitation Crisis intervention services for adult victims with severe impairments of abuse,

6-52

neglect and/or exploitation. -- (a) As used in this section the terms:

6-53

      (1) "Adult victim with severe impairments" means:

6-54

      (i) A person over the age of eighteen (18) who has a disability which is attributable to a

6-55

mental or physical impairment or combination of mental and physical impairments and results in

6-56

substantial functional limitations in three (3) or more major life activities;

6-57

      (ii) Is an alleged victim of abuse, neglect or exploitation pursuant to section 11-5-12; or

6-58

assault pursuant to section 11-5-10.2 or 11-5-11 by a caregiver of the victim;

6-59

      (iii) The adult victim relies on the person believed to have committed the abuse, neglect,

6-60

and/or exploitation, for assistance in performing three (3) or more major life activities; and

6-61

      (iv) Crisis intervention services are necessary to ensure the immediate health and safety

6-62

of the adult victim.

6-63

      (2) "Crisis intervention services" means the short term provision of health care and

6-64

residential services in the immediate hours and days following the abuse, neglect and/or

6-65

exploitation of an adult victim with severe impairments;

6-66

      (3) "Major life activities" mean: (i) mobility; (ii) self-care; (iii) communication; (iv)

6-67

receptive and/or expressive language; (v) learning; (vi) self-direction; (vii) capacity for

6-68

independent living; or (viii) economic self-sufficiency; and

7-1

     (4) “Secretary” means the secretary of the executive office of health and human services;

7-2

and

7-3

     (4)(5) "Supportive services" means longer term support services for an adult victim with

7-4

severe impairments, and when appropriate that victim's family.

7-5

      (b) After July 1, 2007, local police departments may request the department of mental

7-6

health, retardation, behavioral healthcare, developmental disabilities and hospitals provide crisis

7-7

intervention services for the adult victim with severe impairments when:

7-8

      (1) Necessary to ensure the immediate health and safety of the adult victim; and

7-9

      (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.;

7-12

     (3) After the victim is informed of his or her right to refuse crisis intervention and/or

7-13

supportive services.

7-14

      (c) (1) If the department of mental health, retardation, behavioral healthcare,

7-15

developmental disabilities and hospitals and hospitals determines that longer term supportive

7-16

services are necessary, the victim and when appropriate that victim's family will be referred to the

7-17

public and private agencies and departments whose supportive services are within its statutory

7-18

and/or regulatory responsibility, as are needed by the victim.

7-19

      (2) In developing the supportive services care plan, the adult victim with severe

7-20

impairments' rights to self-determination and lifestyle preferences commensurate with his or her

7-21

needs shall be of prime consideration.

7-22

      (3) If the adult victim with severe impairments withdraws consent or refuses to accept

7-23

crisis intervention or supportive services, the services shall not be provided.

7-24

      (d) The department of human services is hereby authorized to seek federal approval of a

7-25

state plan amendment to its title XIX state plan to initiate crisis intervention services and support

7-26

services for adults who qualify for title XIX services and are adult victims of with severe

7-27

impairments of abuse, assault, neglect or exploitation.

7-28

     (e) The secretary shall recognize the statewide toll free, twenty-four (24) hour a day,

7-29

seven (7) days quality assurance hotline operated by the department of behavioral healthcare

7-30

developmental disabilities and hospitals, and authorized pursuant to section 40.1-26-10, for the

7-31

use of the general public to report abuse, neglect, and exploitation and/or request crisis

7-32

intervention and/or supportive services for adult victims with severe impairments.

7-33

     SECTION 4. Section 40.1-5-40.1 of the General Laws in Chapter 40.1-5 entitled "Mental

7-34

Health Law" is hereby amended to read as follows:

8-1

     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 mental health, retardation, behavioral healthcare, developmental disabilities and

8-5

hospitals and hospitals or his or her designee. The director of the department shall cause the

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).

8-10

     SECTION 5. Section 40.1-5.3-17 of the General Laws in Chapter 40.1-5.3 entitled

8-11

"Incompetency to Stand Trial and Persons Adjudged Not Guilty by Reason of Insanity" is hereby

8-12

amended to read as follows:

8-13

     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

8-15

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.

8-18

      (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

8-20

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.

8-22

      (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 mental

8-25

health, retardation, behavioral healthcare, developmental disabilities and hospitals and hospitals

8-26

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).

8-30

     SECTION 6. Sections 40.1-27-2, 40.1-27-3 and 40.1-27-5 of the General Laws in

8-31

Chapter 40.1-27 entitled "Penalties for Abuse of Persons with Developmental Disabilities" are

8-32

hereby amended to read as follows:

8-33

     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 mental health, retardation, behavioral healthcare, developmental disabilities

9-4

and hospitals and hospitals or his or her designee. The report shall contain:

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;

9-9

      (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. Duties of the director of the department of mental health, retardation,

9-19

and hospitals Duties of the director of the department of behavioral healthcare,

9-20

developmental disabilities and hospitals. -- The director of the department of mental health,

9-21

retardation, behavioral healthcare, developmental disabilities and hospitals and hospitals or his or

9-22

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 mental health, retardation, behavioral healthcare,

9-29

developmental disabilities and hospitals and hospitals has reasonable cause to believe the

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;

10-6

      (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 mental health, retardation, behavioral healthcare,

10-10

developmental disabilities and hospitals and hospitals has reasonable cause to believe that a

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 mental health, retardation, behavioral healthcare, developmental disabilities and

10-16

hospitals and hospitals. The office of the medical examiner shall also communicate its final

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 mental health, retardation, behavioral

10-29

healthcare, developmental disabilities and hospitals and hospitals and to the program within forty-

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.

10-32

     SECTION 7. This act shall take effect on July 1, 2012.

=======

LC01816

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO CRIMINAL OFFENSES -- ASSAULTS

***

12-1

     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

12-6

services for adult victim with severe impairments. The act would clarify the right of an adult

12-7

victim with severe impairments of an assault, to refuse crisis intervention and/or supportive

12-8

services.

12-9

     This act would take effect on July 1, 2012.

=======

LC01816

=======