2016 -- S 3035

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LC006042

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2016

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A N   A C T

RELATING TO HEALTH AND SAFETY - LICENSING OF HEALTH CARE FACILITIES

     Introduced By: Senator William J. Conley

     Date Introduced: May 24, 2016

     Referred To: Senate Health & Human Services

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 23-17.8-2 and 23-17.8-9 of the General Laws in Chapter 23-17.8

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

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

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

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

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

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

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

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

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

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

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

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

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

of the department of behavioral healthcare, developmental disabilities and hospitals or his or her

designee and to the state-designated ombudsperson for services for intellectually/developmentally

disabled individuals for those incidents involving community residences for people who are

mentally retarded or persons with developmental disabilities. The report shall contain:

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

phone number of the person reporting;

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

the abuse, mistreatment, or neglect;

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

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

they were made;

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

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

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

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

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

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

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

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

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

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

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

(3) business days with a written report.

     23-17.8-9. Duties of the directors of the department of health and the department of

mental health, retardation, and hospitals. -- The directors of the department of health and the

department of mental health, retardation and hospitals or their designee shall:

      (1) Immediately notify the attorney general or his or her designee and to the state-

designated ombudsperson for services for intellectually/developmentally disabled individuals

upon receipt of an oral or written report made pursuant to § 23-17.8-2;

      (2) Investigate and evaluate the information reported in the reports. The investigation

and evaluation shall be made within twenty-four (24) hours if the department has reasonable

cause to believe the patient's or resident's health or safety is in "immediate jeopardy"; within

seven (7) days for reports deemed by the department to be of "non-immediate jeopardy -- high

potential for harm"; within twenty-one (21) days for reports deemed by the department to be of

"non-immediate jeopardy -- medium potential for harm"; and within sixty (60) days for reports

deemed by the department to be of "non-immediate jeopardy -- low potential for harm." The

investigation shall include a visit to the facility, an interview with the patient or resident allegedly

abused, mistreated, or neglected, a determination of the nature, extent, and cause or causes of the

injuries, the identity of the person or persons responsible for the injuries, and all other pertinent

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facts. The determination shall be in writing;

      (3) Evaluate the environment at the facility named in the report and make a written

determination of the risk of physical or emotional injury to any other patients or residents in the

same facility;

      (4) Forward to the attorney general and to the state-designated ombudsperson for

services for intellectually/developmentally disabled individuals within a reasonable time after a

case is initially reported pursuant to § 23-17.8-2, subject to subdivision (1), a summary of the

findings and recommendations on each case;

      (5) If the director or the director's designee has reasonable cause to believe that a patient

or resident has died as a result of abuse, mistreatment, or neglect, immediately report the death to

the attorney general, to the state-designated ombudsperson for services for

intellectually/developmentally disabled individuals, and the office of the medical examiner. The

office of the medical examiner shall investigate the report and communicate its preliminary

findings, orally within seventy-two (72) hours, and in writing within seven (7) working days, to

the attorney general and to the state-designated ombudsperson for services for

intellectually/developmentally disabled individuals. The office of the medical examiner shall also

communicate its final findings and conclusions, with the basis for its final findings and

conclusions, to the same parties within sixty (60) days;

      (6) Promulgate any regulations that may be necessary to implement the provisions of this

chapter;

      (7) Maintain a file of the written reports prepared pursuant to this chapter. The written

reports shall be confidential, but shall be released to the attorney general and to the state-

designated ombudsperson for services for intellectually/developmentally disabled individuals or

to a court of competent jurisdiction, and may be released, upon written request and with the

approval of the director or his or her designee, to the patient or resident, counsel, the reporting

person or agency, the appropriate review board, or a social worker assigned to the case. The

office of the state-designated ombudsperson shall also be authorized to make public reports of

abuse investigations.

     SECTION 2. Section 40.1-27-3 of the General Laws in Chapter 40.1-27 entitled

"Penalties for Abuse of Persons with Developmental Disabilities" is hereby amended to read as

follows:

     40.1-27-3. Duties of the director of the department of behavioral healthcare,

developmental disabilities and hospitals. -- The director of the department of behavioral

healthcare, developmental disabilities and hospitals or his or her designee shall:

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      (1) Notify the attorney general or his or her designee, the chair of the program's human

rights committee and to the state-designated ombudsperson for services for

intellectually/developmentally disabled individuals forthwith upon receipt of an oral or written

report made pursuant to § 40.1-27-2;

      (2) Investigate and evaluate or cause to be investigated and evaluated the information

reported in those reports. The investigation and evaluation shall be made within twenty-four (24)

hours if the director of the department of behavioral healthcare, developmental disabilities and

hospitals has reasonable cause to believe the participant's health or safety is in immediate danger

of further abuse or neglect and within seven (7) days for all other reports. The investigations shall

include a visit to the program, an interview with the participant allegedly abused, mistreated or

neglected, an interview with all witnesses to the alleged incident, a determination of the nature,

extent, and cause or causes of the injuries, the identity of the person or persons responsible

therefor, all other pertinent facts and recommendations to prevent further abuse, mistreatment or

neglect of the participant or other program participants. The determination shall be in writing;

      (3) Evaluate the environment in the program named in the report and make a written

determination of the risk of physical or emotional injury to any other participants in the same

program;

      (4) Forward to the attorney general and the chair of the program's human rights

committee and to the state-designated ombudsperson for services for

intellectually/developmentally disabled individuals within fifteen (15) days after a case is initially

reported pursuant to § 40.1-27-2 a summary of the findings and recommendations on each case;

      (5) If the director of the department of behavioral healthcare, developmental disabilities

and hospitals has reasonable cause to believe that a participant had died as a result of abuse,

mistreatment, or neglect, immediately report the death to the attorney general, to the state-

designated ombudsperson for services for intellectually/developmentally disabled individuals,

and to the office of the medical examiner. The office of the medical examiner shall investigate the

report and communicate its preliminary findings, orally within seventy-two (72) hours, and in

writing within seven (7) working days to the attorney general, to the state-designated

ombudsperson for services for intellectually/developmentally disabled individuals, and to the

department of behavioral healthcare, developmental disabilities and hospitals. The office of the

medical examiner shall also communicate its final findings and conclusions, with the basis

therefore to the same parties within sixty (60) days;

      (6) Promulgate such regulations as may be necessary to implement the provisions of this

chapter; and

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      (7) Maintain a file of the written reports prepared pursuant to this chapter. The written

reports shall be confidential, but shall be released to the attorney general, to the state-designated

ombudsperson for services for intellectually/developmentally disabled individuals, or to a court of

competent jurisdiction, and upon written request to the participant, his or her counsel, the

reporting person or agency, the appropriate review board or a social worker assigned to the case.

The office of the state-designated ombudsperson shall be authorized to make public reports of

abuse investigations.

     SECTION 3. Section 40.1-22-4 of the General Laws in Chapter 40.1-22 entitled

"Developmental Disabilities" is hereby amended to read as follows:

     40.1-22-4. General powers and duties of the director. -- (a) The director of mental

health, retardation, and hospitals is charged with the execution of laws relating to the admission

and care of the developmentally disabled.

      (b) The director shall be responsible for the facilities in the department and such others

as are approved to function under this chapter for the purpose of determining whether the

provisions of this law relating to admission and care of developmentally disabled persons are

being complied with, and giving such residents of the facilities as may request it, suitable

opportunity to converse with him or her or them apart from the officers and attendants thereof.

The director shall act with power to investigate the question of developmental disability and

condition of any person who is a resident of any institution for the developmentally disabled,

public or private, or restrained in his or her liberty by reason of alleged developmental disability

at any place within the state, and shall discharge any such person, if in his or her opinion he or

she is not developmentally disabled or can be cared for after discharge without serious harm to

him or herself or others. For such purposes, the director is empowered to hold hearings, subpoena

witnesses, compel their attendance, administer oaths to witnesses, examine witnesses under oath,

and require the production of any books, documents, papers, or records deemed relevant to the

inquiry under investigation. A subpoena issued under this section shall be regulated by civil

practice laws and rules.

      (3) The director may assign a portion of any state facility, for the holding of religious

service, to be used exclusively for the benefit of the patients and employees of the facility, subject

to such conditions as may be imposed by the director.

      (4) The director may:

      (i) Examine all facilities, public and private, licensed by him or her or authorized by law

to receive, admit, and care for the developmentally disabled; and

      (ii) Inquire into their methods of government and management of all persons therein; and

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      (iii) Examine into the condition of all buildings, grounds, and other property connected

with the facility, and into all matters relating to its management.

      (5) The director may promulgate and adopt such rules and regulations governing the

management of the facilities, both public and private, as he or she may deem necessary to carry

out the provisions of this chapter to insure the comfort, promote the welfare, and protect the rights

of the residents.

      (6) Any patient, or person representing the patient shall be furnished, upon request, all

information and reports upon which a director or other resident physician made his or her or their

determination or finding that the patient is a developmentally disabled person.

     (7) Subject to appropriation, the director shall, in conjunction with the secretary of the

office of health and human services, designate and contract with an independent ombudsperson

for services for intellectually/developmentally disabled individuals. The ombudsperson shall have

professional background in the practice, knowledge, and experience of working with individuals

with intellectual/developmental disabilities.

     SECTION 4. Section 40.1-24-12 of the General Laws in Chapter 40.1-24 entitled

"Persons With Mental Illness, Addiction/Substance Abuse Disorders and Developmental

Disabilities" is hereby amended to read as follows:

     40.1-24-12. Confidentiality of information. -- Information received by the department

through filed reports, inspection, or as otherwise authorized under this chapter, shall not be

disclosed publicly in such manner as to identify individuals or facilities and programs, except in a

proceeding involving the question of licensure, or the final report of resident abuse investigation

and reporting as cited in §23-17.8-9.

     SECTION 5. Section 40.1-24.5-11 of the General Laws in Chapter 40.1-24.5 entitled

"Community Residences" is hereby amended to read as follows:

     40.1-24.5-11. Confidentiality of information and records. -- (a) The fact of admission

and all information and records compiled, obtained, or maintained in the course of providing

services to persons under this chapter shall be confidential.

      (b) Except as provided in subsections (c) and (d), the fact of admission and all

confidential information and records shall not be released without the written consent of the

resident concerned.

      (c) No consent for release of confidential information and records is required in the

following situations:

      (1) To proper medical or psychiatric authorities for the purpose of providing emergency

medical or psychiatric treatment when the resident's life or health is in immediate jeopardy.

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      (2) Between or among residence staff within the same community residence for purposes

of coordinating services for a resident.

      (3) For program evaluation and/or research, provided that the director of mental health,

retardation, and hospitals adopts rules ensuring the anonymity of the resident's identity. The rules

shall include, but need not be limited to, the requirement that all evaluators and researchers must

sign an oath of confidentiality, agreeing not to divulge, publish, or otherwise make known to

unauthorized persons or the public any information obtained in the course of the evaluation or

research regarding residents who have received services such that the resident who received the

services is identifiable.

      (4) Pursuant to an order of a court of competent jurisdiction.

     (5) To the state-designated ombudsperson for services for intellectually/developmentally

disabled individuals.

     (d) If a resident is deceased, consent for release of information deemed confidential under

this section may be obtained from his or her personal representative, or in the absence of a

personal representative, his or her surviving spouse. If there is neither a personal representative

nor surviving spouse, consent may be obtained from the resident's kindred of the closest degree;

if there is more than one person of lawful age within the same degree of kindred, each shall

individually possess the right to provide consent.

     SECTION 6. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY - LICENSING OF HEALTH CARE FACILITIES

***

     This act would create the position of a state-designated ombudsperson for services for

intellectually/developmentally disabled individuals.

     This act would take effect upon passage.

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