2017 -- S 0155

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LC000322

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2017

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A N   A C T

RELATING TO BEHAVIORAL HEALTHCARE, DEVELOPMENTAL DISABILITIES AND

HOSPITALS - DEVELOPMENTAL DISABILITIES OMBUDSPERSON ACT OF 2017

     

     Introduced By: Senators Satchell, Conley, Crowley, Coyne, and Goldin

     Date Introduced: February 01, 2017

     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 2017

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     40.1-22.2-1. Short title.

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     This chapter shall be known and may be cited as the "Developmental Disabilities

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Ombudsperson Act of 2017".

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     40.1-22.2-2. Program established.

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     There is hereby created the office of developmental disabilities ombudsperson.

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     40.1-22.2-3. Definitions.

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     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) "Adult with a developmental disability" means a person, eighteen (18) years old or

 

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

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either an adult with a developmental disability or is a person with a severe, chronic disability

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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 chapter 24 of title 16.

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     (4) "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 adults with developmental disabilities. The facilities shall include, but

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not be limited to, group homes, shared living arrangements and fully supervised apartment

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programs. Semi-independent living programs shall not be considered community residences for

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the purposes of this chapter and the rules and regulations herein.

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     (5) "Developmental disabilities ombudsperson nominating committee" means a

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committee comprised of:

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     (i) The director of the department of behavioral healthcare, developmental disabilities,

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and hospitals, or designee;

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     (ii) The chairperson of the Rhode Island developmental disabilities council, or designee;

 

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     (iii) The chairperson of the governor's commission on disabilities, or designee;

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     (iv) The executive director of the Rhode Island Disabilities Law Center, or designee;

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     (v) The director of the Paul V. Sherlock Center on Disabilities, or designee;

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     (vi) The chairperson of Advocates in Action Rhode Island, or designee; and

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     (vii) The chairperson of the Community Providers Network of Rhode Island, or designee.

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     The developmental disabilities ombudsperson nominating committee shall meet when

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needed to solicit, accept and review applications for the position of developmental disabilities

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ombudsperson and provide the governor with a list of three (3) to five (5) qualified candidates.

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     (6) "Developmental disability organizations (DDOs)" means an organization licensed by

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

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shall have the same meaning as "providers" or" agencies."

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     (7) "Director" means the director of the department of behavioral healthcare,

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developmental disabilities, and hospitals.

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     (8) "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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     (9) "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 Pub L. No. 104-191.

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     (10) "Interfere" means willing and continuous conduct which prevents the ombudsperson

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from performing their official duties.

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     (11) "Ombudsperson" means the person or persons designated by the governor to carry

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out the powers and duties of the office. That person or persons shall have expertise and

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experience in the fields of social work, long-term care, and advocacy, and shall be qualified and

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experienced in the provision of support services to adults with developmental disabilities.

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     (12) "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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     (13) "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 chapter 24 of title 40.1. For purposes of this section, "provider" shall also

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include any residential and/or day program services operated by the department of behavioral

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healthcare, developmental disabilities and hospitals and the state of Rhode Island.

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     (14) "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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     (15) "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.

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     The governor shall establish the position(s) of developmental disabilities ombudsperson

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for the purpose of advocating on behalf of adults with a developmental disability, individuals

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acting on their behalf, or any individual organization or government agency that has reason to

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believe that a facility, organization or government agency has engaged in activities, practices or

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omissions that constitute a violation of applicable statutes or regulations or that may have an

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adverse effect upon the health, safety, welfare, rights or quality of life of adults with a

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developmental disability. The developmental disabilities ombudsperson may dismiss a complaint

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at any stage of an investigation with an explanation to the originator(s) of the complaint. The

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governor shall appoint the developmental disabilities ombudsperson from a list of three (3) to five

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(5) candidates provided by the developmental disabilities ombudsperson nominating committee to

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a term of five (5) years. The department of administration may operate the office of

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developmental disabilities ombudsperson and carry out the program, directly or by contract or

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other arrangement with any public agency or nonprofit organization. The developmental

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disabilities ombudsperson shall hire additional staff as necessary to carry out the powers and

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duties of the office.

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      40.1-22.2-5. Powers and duties.

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     The developmental disabilities ombudsperson shall:

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     (1) Identify, investigate, and resolve complaints that:

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     (i) Are made by, or on behalf of, adults with a developmental disability; and

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

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welfare, rights, or quality of life of the adults with a developmental disability (including the

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welfare and rights of adults with a developmental disability with respect to the appointment and

 

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activities of guardians and representative payees and health care and financial powers of attorney,

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and access to hospice care);

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

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     (3) Represent the interests of adults with a developmental disability before government

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agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare,

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rights, and quality of life of the adults with a developmental disability including, but not limited

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to, rights with respect to the appointment or removal of guardians, representative payees and

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powers of attorney;

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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, hospitalization, death, missing persons, theft, sexual abuse, accidents involving fires,

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elopement and resident-to-resident 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, the executive office of health and human

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services and the attorney general 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 adults with a developmental disability discharged

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from community residences or shared living residences;

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     (8) Provide referral services to assist adults with developmental disabilities in protecting

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their health, safety, welfare, rights, and quality of life;

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     (9) Inform adults with developmental disabilities of their rights and advocate on their

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behalf to improve their quality of life and live with dignity and respect; and

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     (10) Offer assistance and training to public and private organizations on long-term care of

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adults with developmental disabilities.

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     40.1-22.2-6. Confidentiality.

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     The files maintained by the developmental disabilities ombudsperson are confidential and

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shall be disclosed only with the written consent of the adult with developmental disability

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affected or their legal representative/guardian, or if any disclosure is required by court order.

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Nothing in this section shall be construed to prohibit the disclosure of information gathered in an

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investigation to any interested party as may be necessary to resolve the complaint or to refer to

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other appropriate state agencies investigating civil, criminal or licensing violations.

 

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     40.1-22.2-7. Access to records, community residences, adults with a developmental

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disability.

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     (a) In the course of an investigation, the developmental disabilities ombudsperson shall:

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

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     (2) Have access to community residences and residents and staff thereof;

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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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     (b) In the ordinary course of the developmental disabilities ombudsperson's duties, the

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developmental disabilities ombudsperson shall have access to residents of a community residence

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to:

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     (1) Visit, talk with, make personal, social, and other appropriate services available;

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     (2) 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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     (3) Engage in other methods of assisting, advising, and representing adults with a

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developmental disability to extend to them the full enjoyment of their rights.

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

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oversight agency.

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     (d) Notwithstanding any other provision of law, any 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 §5-37.3-4(c), which requires limitation on the distribution of

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

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     40.1-22.2-8. Retaliation prohibited.

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     No discriminatory, disciplinary, or retaliatory action shall be taken against any officer or

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employee of a provider by the provider; nor against any guardian or family member of any adults

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with a developmental disability; nor against any resident of a community residence; nor against

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any volunteer for any communication by them with the developmental disabilities ombudsperson

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or for any information given or disclosed by them in good faith to aid the developmental

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disabilities ombudsperson in carrying out their duties and responsibilities.

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     40.1-22.2-9. Cooperation required.

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     (a) The developmental disabilities ombudsperson may request from any government

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agency, and the agency is authorized and directed to provide, any cooperation and assistance,

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services, and data that will enable the developmental disabilities ombudsperson to properly

 

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perform or exercise any of their functions, duties and powers 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.

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     The developmental disabilities ombudsperson shall submit an annual report of the

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activities of the developmental disabilities ombudsperson program and the developmental

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disabilities ombudsperson's activities concerning facilities and the protection of the rights of

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adults with a developmental disability to the governor, speaker of the house of representatives,

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president of the senate, chairs of the senate and house committees on finance, chair of the senate

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

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welfare, general assembly, the secretary of the office of health and human services, the director of

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behavioral healthcare, developmental disabilities and hospitals, the chairperson of the Rhode

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Island developmental disabilities council, the chairperson of the governor's commission on

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disabilities, the executive director of the Rhode Island Disabilities Law Center, the director of the

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Paul V. Sherlock Center on Disabilities, the chairperson of Advocates in Action Rhode Island, the

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chairperson of the Community Providers Network of Rhode Island, the 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.

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     Any person, institution, or official who in good faith participates in the registering of a

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complaint, or who in good faith investigates that complaint or provides access to those persons

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carrying out the investigation, or who participates in a judicial proceeding resulting from that

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complaint, is immune from any civil or criminal liability that might otherwise be a result of these

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actions. For the purpose of any civil or criminal proceedings, there is a rebuttable presumption

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that any person acting pursuant to this chapter did so in good faith.

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     40.1-22.2-12. Rules and regulations.

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     The office of the developmental disabilities ombudsperson shall promulgate and, from

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time to time, revise rules and regulations for the implementation and enforcement of the

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developmental disabilities ombudsperson program including, but not limited to, the procedures

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for the receipt, investigation and resolution, through administrative action, of complaints.

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     40.1-22.2-13. Interagency cooperation.

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     Nothing in this chapter shall be construed to be a limitation of the powers and

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responsibilities assigned by law to other state agencies or departments. The developmental

 

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disabilities ombudsperson shall establish an interagency agreement between the department of

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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 adults with a developmental disability.

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     40.1-22.2-14. Non-interference.

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     No person shall willfully interfere with the developmental disabilities ombudsperson in

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the performance of the ombudsperson's official duties.

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     40.1-22.2-15. Enforcement.

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     The attorney general shall have the power to enforce the provisions of this chapter.

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     40.1-22.2-16. Penalty for violations.

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     Every person who willfully violates the provisions of §§40.1-22.2-8 or 40.1-22.2-14 shall

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

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any other remedy provided for in Rhode Island law.

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     40.1-22.2-17. Severability.

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     If any provision of this chapter or any rule or regulation made under this chapter, or the

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application of any provision of this chapter to any person or circumstance shall be held invalid by

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any court of competent jurisdiction, the remainder of the chapter, rule or regulation and the

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application of such provision to other persons or circumstances shall not be affected thereby. The

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invalidity of any section or sections or parts of any section of this chapter shall not affect the

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validity of the remainder of this chapter, and to this end, the provisions of the chapter are declared

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to be severable.

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     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 2017

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     This act would create a developmental disabilities ombudsperson program to be

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administratively attached to the department of administration. The developmental disabilities

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ombudsperson would be selected by a committee, named by the governor, and would advocate on

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behalf of adults with developmental disabilities.

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     This act would take effect upon passage.

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