2013 -- S 0692

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LC01398

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO BEHAVIORAL HEALTHCARE, DEVELOPMENTAL DISABILITIES AND

HOSPITALS - DEVELOPMENTAL DISABILITIES OMBUDSPERSON ACT OF 2013

     Introduced By: Senators DiPalma, Lombardi, Ciccone, and Ottiano

     Date Introduced: March 06, 2013

     Referred To: Senate Health & Human Services

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 40.1 of the General Laws entitled "BEHAVIORAL HEALTHCARE,

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DEVELOPMENTAL DISABILITIES AND HOSPITALS" is hereby amended by adding thereto

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the following chapter:

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     CHAPTER 22.2

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DEVELOPMENTAL DISABILITIES OMBUDSPERSON ACT OF 2013

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     40.1-22.2-1. Short title. – This chapter shall be known and may be cited as the

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“Developmental Disabilities Ombudsperson Act of 2013”.

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     40.1-22.2-2. Program established. – There is established a program of the

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Developmental Disabilities Ombudsperson to be administratively attached to the department of

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behavioral healthcare, developmental disabilities, and hospitals.

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     40.1-22.2-3. Definitions. – As used in this chapter:

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     (1) An “act” of any facility or government agency includes any failure or refusal to act by

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any facility or government agency.

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     (2) “Administrator” means any person who is charged with the general administration or

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supervision of a facility whether or not that person has an ownership interest and whether or not

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that person’s functions and duties are shared with one or more other persons.

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     (3) “Community residence” means any home or other living arrangement which is

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established, offered, maintained, conducted, managed, or operated by any person for a period of

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at least twenty-four (24) hours, where, on a twenty-four (24) hour basis, direct supervision is

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provided for the purpose of providing rehabilitative treatment, habilitation, psychological support,

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and/or social guidance for three (3) or more persons with developmental disabilities or cognitive

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disabilities such as brain injury. The facilities shall include, but not be limited to, group homes,

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and fully supervised apartment programs. Semi-independent living programs and shared living

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arrangements shall not be considered community residences for the purposes of this chapter and

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the rules and regulations herein.

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     (4) “Developmentally disabled adult” means a person, eighteen (18) years old or older

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and not under the jurisdiction of the department of children, youth, and families who is either a

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developmentally disabled adult or is a person with a severe, chronic disability which:

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     (i) Is attributable to a mental or physical impairment or combination of mental and

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physical impairments;

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     (ii) Is manifested before the person attains age twenty-two (22);

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     (iii) Is likely to continue indefinitely;

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     (iv) Results in substantial functional limitations in three (3) or more of the following

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areas of major life activity:

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     (A) Self care;

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     (B) Receptive and expressive language;

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     (C) Learning;

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     (D) Mobility;

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     (E) Self-direction;

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     (F) Capacity for independent living;

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     (G) Economic self-sufficiency; and

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     (v) Reflects the person’s need for a combination and sequence of special,

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interdisciplinary, or generic care, treatment, or other services, which are of lifelong or extended

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duration and are individually planned and coordinated. For the purposes of funding, it is

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understood that students enrolled in school will continue to receive education from their local

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education authority in accordance with section 16-24-1 et seq.

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     (5) “Developmentally disability organizations (DDOs)” means an organization licensed

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by BHDDH to provide services to adults with disabilities, as provided herein. As used herein,

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DDOs shall have the same meaning as “providers” or “agencies.”

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     (6) “Government agency” means any department, division, office, bureau, board,

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commission, authority, nonprofit community organization, or any other agency or instrumentality

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created by any municipality or by the state, or to which the state is a party, which is responsible

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for the regulation, inspection, visitation, or supervision of facilities or which provides services to

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residents of facilities.

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     (7) “Health oversight agency” means, for the purposes of this chapter, the department of

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behavioral healthcare, developmental disabilities, and hospitals or the person or entity designated

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as the state’s developmental disabilities ombudsperson by the governor, including the employees

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or agents of such person or entity, when they are acting to fulfill the duties and responsibilities of

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the state’s developmental disabilities ombudsperson program in which information is necessary to

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oversee the care system and in accordance with the U.S. Health Insurance Portability and

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Accountability Act (HIPAA) of 1996.

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     (8) “Interfere” means willing and continuous conduct which prevents the ombudsperson

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from performing his or her official duties.

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     (9) “Director” means the director of the department of behavioral healthcare,

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developmental disabilities, and hospitals.

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     (10) “Ombudsperson” means the person or persons designated by the governor to carry

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out the powers and duties of the office.

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     (11) “Person” means any individual, trust, estate, partnership, limited liability

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corporation, corporation (including associations, joint stock companies, and insurance companies)

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state, or political subdivision or instrumentality of the state.

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     (12) “Provider” means any organization that has been established for the purpose of

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providing either residential and/or day support services for adults with developmental disabilities

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and which is licensed by the department of behavioral healthcare, developmental disabilities and

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hospitals pursuant to section 40.1-24-1 et seq., of the Rhode Island general laws, as amended. For

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the purposes of this section, “provider” shall also include any residential and/or day program

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services operated by the department of behavioral healthcare, developmental disabilities and

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hospitals and the state of Rhode Island.

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     (13) “Services” means those services provided, and shall include, but not be limited to,

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developmental services, supportive services, and ancillary services.

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     (14) “Shared Living Residence” means the residence and physical premises in which the

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support is provided by the shared living arrangement provider. The home shall be inspected and

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approved by the shared living placement agency.

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     40.1-22.2-4. Developmental Disabilities Ombudsperson. – The governor shall establish

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the position of developmental disabilities ombudsperson that shall be administratively attached to

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the department of behavioral healthcare, developmental disabilities, and hospitals for the purpose

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of advocating on behalf of developmentally disabled adults, providers, any person associated with

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a provider, advocates, individuals acting on their behalf, or any individual organization or

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government agency that has reason to believe that a facility, organization or government agency

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has engaged in activities, practices or omissions that constitute a violation of applicable statutes

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or regulations that may have an adverse effect upon the health, safety, welfare, rights or quality of

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life of developmentally disabled adults. The developmental disabilities ombudsperson shall

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receive, investigate, and resolve through mediation, negotiation, and administrative action

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complaints filed by any of the aforementioned parties. The developmental disabilities

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ombudsperson may dismiss a complaint at any stage of an investigation. The governor shall

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appoint the developmental disabilities ombudsperson to a term of five (5) years with the advice

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and consent of the senate. The developmental disabilities ombudsperson shall hire additional staff

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as necessary to carry out the powers and duties of the office.

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     40.1-22.2-5. Powers and duties. – The developmental disabilities ombudsperson shall:

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     (1) Investigate, and resolve complaints that: (i) Are made by, or on behalf of,

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developmentally disabled adults, any person associated with a provider, providers, advocates; and

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(ii) Relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare or

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rights of the developmentally disabled adults (including the welfare and rights of developmentally

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disabled adults with respect to the appointment and activities of guardians and representative

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payees) and health care and financial powers of attorney;

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     (2) Formulate policies and procedures to investigate and resolve complaints;

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     (3) Seek administrative, legal, and other remedies to protect the health, safety, welfare,

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and rights of the developmentally disabled adults;

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     (4) Receive all reports from the department of behavioral healthcare, developmental

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disabilities and hospitals of incidents reported to the office of quality assurance within twenty-

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four (24) hours, or by the next business day of the occurrence, in cases of resident abuse, neglect,

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exploitation, theft, sexual abuse, accidents involving fires, elopement and person to person

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abuses;

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     (5) Review and, if necessary, comment on any existing and proposed laws, regulations,

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and other government policies and actions, that affect the parties subject to this statute;

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     (6) Make appropriate referrals of investigations to the department of behavioral

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healthcare, developmental disabilities and hospitals and other state agencies;

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      (7) Receive from the department of behavioral healthcare, developmental disabilities and

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hospitals all reports of thirty (30) day notices of developmentally disabled adults discharged from

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community residences or shared living residences;

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     40.1-22.2-6. Confidentiality. – The files maintained by the developmental disabilities

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ombudsperson program are confidential and shall be disclosed only with the written consent of

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the developmentally disabled adults affected or his or her legal representative/guardian, or if any

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disclosure is required by court order. Nothing in this paragraph shall be construed to prohibit the

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disclosure of information gathered in an investigation to any interested party as may be necessary

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to resolve the complaint or to refer to other appropriate state agencies investigating civil, criminal

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or licensing violations.

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     40.1-22.2-7. Access to records, provider, developmentally disabled adults. – (a) In the

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course of an investigation, the developmental disabilities ombudsperson shall:

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     (1) Make the necessary inquiries and obtain information as is deemed necessary;

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     (2) Have access to providers and any persons related to an investigation;

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     (3) Enter provider locations and, after notifying the person in charge, inspect any books,

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files, medical records, or other records that pertain to the investigation;

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     (4) Make personal, social, and other appropriate services available;

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     (5) Inform them of their rights and entitlements and corresponding obligations under

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federal and state law by distribution of educational materials, discussion in groups, or discussion

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with individuals and their families; and

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     (6) Engage in other methods of assisting, advising, and representing developmentally

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disabled adults to extend to them the full enjoyment of their rights.

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     (b) The office of the developmental disabilities ombudsperson is considered a health

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oversight agency.

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     (c) Notwithstanding any other provision of law, a health oversight agency, and its

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employees and agents, shall comply with all state and federal confidentiality laws, including, but

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not limited to, chapter 37.3 of title 5 (Confidentiality of Health Care Communications and

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Information Act) and specifically subsection 5-37.3-4(c), which requires limitation on the

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distribution of information which is the subject of this chapter on a "need to know" basis, and

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section 40.1-5-26. 

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     40.1-22.2-8. Retaliation prohibited. – No discriminatory, disciplinary, or retaliatory

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action shall be taken against any officer or employee of a provider by the provider; nor against

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any guardian or family member of any developmentally disabled adults; nor against any

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developmentally disabled adults of the provider; nor against any volunteer for any

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communication by him or her with the developmental disabilities ombudsperson or for any

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information given or disclosed by him or her in good faith to aid the developmental disabilities

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ombudsperson in carrying out his or her duties and responsibilities. 

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     40.1-22.2-9. Cooperation required. – (a) The developmental disabilities ombudsperson

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may request from any government agency, and the agency is authorized and directed to provide,

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any cooperation and assistance, services, and data that will enable the developmental disabilities

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ombudsperson to properly perform or exercise any of his or her functions, duties and powers

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under this chapter.

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     (b) The developmental disabilities ombudsperson shall cooperate and assist other

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government agencies in their investigations, such as the department of health, the office of

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attorney general, the department of human services and any other pertinent departments or

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agencies. 

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     40.1-22.2-10. Annual reports. – The developmental disabilities ombudsperson shall

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submit an annual report of the activities of the developmental disabilities ombudsperson program

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and the developmental disabilities ombudsperson's activities concerning facilities and the

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protection of the rights of developmentally disabled adults to the governor, speaker of the house,

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senate president, director of behavioral healthcare, developmental disabilities and hospitals,

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chairs of the senate and house committee on finance, chair of the senate committee on health and

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human services, chair of the house committee on health, education and welfare, general assembly,

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secretary of the Rhode Island department of health and human services, state librarian, and other

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appropriate governmental entities. The report shall be available to the public. 

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     40.1-22.2-11. Immunity from liability. – Any person, institution, or official who in

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good faith participates in the registering of a complaint, or who in good faith investigates that

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complaint or provides access to those persons carrying out the investigation, or who participates

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in a judicial proceeding resulting from that complaint, is immune from any civil or criminal

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liability that might otherwise be a result of these actions. For the purpose of any civil or criminal

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proceedings, there is a rebuttable presumption that any person acting pursuant to this chapter did

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so in good faith. 

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     40.1-22.2-12. Rules and regulations. – The office of the developmental disabilities

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ombudsperson shall promulgate and, from time to time, revise rules and regulations for the

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implementation and enforcement of the developmental disabilities ombudsperson program

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including, but not limited to, the procedures for the receipt, investigation and resolution, through

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administrative action, of complaints.

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     40.1-22.2-13. Interagency cooperation. – Nothing in this chapter shall be construed to

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be a limitation of the powers and responsibilities assigned by law to other state agencies or

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departments. The ombudsperson shall establish an interagency agreement between the department

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of behavioral healthcare, developmental disabilities and hospitals, the department of health, the

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department of human services, and the office of attorney general to ensure a cooperative effort in

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meeting the needs of developmentally disabled adults. 

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      40.1-22.2-14. Non-interference. – No person shall willfully interfere with the

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developmental disabilities ombudsperson in the performance of the ombudsperson's official

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duties. 

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     40.1-22.2-15. Enforcement. – The attorney general shall have the power to enforce the

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provisions of this chapter. 

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     40.1-22.2-16. Penalty for violations of sections 40.1-22.2-8 and 40.1-22.2-14.- Every

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person who willfully violates the provisions of sections 40.1-22.2-8 or 40.1-22.2-14 shall be

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subject to a fine up to one thousand dollars ($1,000) for each violation of these sections and any

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other remedy provided for in Rhode Island law. 

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     40.1-22.2-17. Severability. – If any provision of this chapter or any rule or regulation

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made under this chapter, or the application of any provision of this chapter to any person or

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circumstance shall be held invalid by any court of competent jurisdiction, the remainder of the

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chapter, rule or regulation and the application of such provision to other persons or circumstances

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shall not be affected thereby. The invalidity of any section or sections or parts of any section of

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this chapter shall not affect the validity of the remainder of this chapter and to this end the

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provisions of the chapter are declared to be severable. 

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     SECTION 2. This act shall take effect upon passage.

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LC01398

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO BEHAVIORAL HEALTHCARE, DEVELOPMENTAL DISABILITIES AND

HOSPITALS - DEVELOPMENTAL DISABILITIES OMBUDSPERSON ACT OF 2013

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     This act would establish a program of the developmental disabilities ombudsperson to be

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administratively attached to the department of behavioral health, developmental disabilities, and

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hospitals.

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     This act would take effect upon passage.

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LC01398

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