2014 -- H 7324

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LC003501

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO BEHAVIORAL HEALTHCARE, DEVELOPMENTAL DISABILITIES AND

HOSPITALS - DEVELOPMENTAL DISABILITIES OMBUDSPERSON ACT OF 2014

     Introduced By: Representatives Blazejewski, Kazarian, Keable, Bennett, and Hull

     Date Introduced: February 06, 2014

     Referred To: House Finance

     It is enacted by the General Assembly as follows:

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

DEVELOPMENTAL DISABILITIES AND HOSPITALS" is hereby amended by adding thereto

the following chapter:

CHAPTER 22.2

DEVELOPMENTAL DISABILITIES OMBUDSPERSON ACT OF 2014

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

“Developmental Disabilities Ombudsperson Act of 2014”.

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

Developmental Disabilities Ombudsperson to be administratively attached to the department of

behavioral healthcare, developmental disabilities, and hospitals.

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

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

any facility or government agency.

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

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

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

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

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

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

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

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

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

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

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

the rules and regulations herein.

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

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

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

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

physical impairments;

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

     (iii) Is likely to continue indefinitely;

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

areas of major life activity:

     (A) Self care;

     (B) Receptive and expressive language;

     (C) Learning;

     (D) Mobility;

     (E) Self-direction;

     (F) Capacity for independent living;

     (G) Economic self-sufficiency; and

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

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

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

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

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

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

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

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

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

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

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

residents of facilities.

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

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

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

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

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

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

Accountability Act (HIPAA) of 1996.

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

from performing his or her official duties.

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

developmental disabilities, and hospitals.

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

out the powers and duties of the office.

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

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

state, or political subdivision or instrumentality of the state.

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

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

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

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

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

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

the state of Rhode Island.

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

developmental services, supportive services, and ancillary services.

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

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

approved by the shared living placement agency.

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

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

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

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

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

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

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

life of developmentally disabled adults. The developmental disabilities ombudsperson shall

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

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

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

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

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

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

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

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

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

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

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

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

payees) and health care and financial powers of attorney;

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

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

and rights of the developmentally disabled adults;

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

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

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

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

abuses;

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

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

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

healthcare, developmental disabilities and hospitals and other state agencies;

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

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

community residences or shared living residences;

     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

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

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

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

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

or licensing violations.

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

course of an investigation, the developmental disabilities ombudsperson shall:

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

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

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

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

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

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

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

with individuals and their families; and

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

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

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

oversight agency.

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

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

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

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

information which is the subject of this chapter on a "need to know" basis, and § 40.1-5-26. 

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

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

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

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

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

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

ombudsperson in carrying out his or her duties and responsibilities. 

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

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

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

under this chapter.

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

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

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

agencies. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

so in good faith. 

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

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

implementation and enforcement of the developmental disabilities ombudsperson program

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

administrative action, of complaints.

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

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

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

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

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

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

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

duties. 

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

provisions of this chapter. 

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

person who willfully violates the provisions of §§ 40.1-22.2-8 or 40.1-22.2-14 shall be subject to

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

remedy provided for in Rhode Island law. 

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

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

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

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

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

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

provisions of the chapter are declared to be severable. 

     SECTION 2. This act shall take effect upon passage.

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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 2014

***

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

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

hospitals.

     This act would take effect upon passage.

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LC003501

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