2023 -- H 5436

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LC001001

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO HEALTH AND SAFETY -- ABUSE IN HEALTHCARE FACILITIES

     Introduced By: Representatives Serpa, Fellela, Ackerman, Costantino, Phillips, Lima,
and Shanley

     Date Introduced: February 08, 2023

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 23-17.8-1 of the General Laws in Chapter 23-17.8 entitled "Abuse in

Healthcare Facilities" is hereby amended to read as follows:

     23-17.8-1. Definitions.

     (a)(1) “Abuse” means:

     (i) Any assault as defined in chapter 5 of title 11, including, but not limited to, hitting,

kicking, pinching, slapping, or the pulling of hair; provided, however, unless it is required as an

element of the offense charged, it shall not be necessary to prove that the patient or resident was

injured by the assault;

     (ii) Any assault as defined in chapter 37 of title 11;

     (iii) Any offense under chapter 10 of title 11;

     (iv) Any conduct which harms or is likely to physically harm the patient or resident except

where the conduct is a part of the care and treatment, and in furtherance of the health and safety of

the patient or resident; or

     (v) Intentionally engaging Engaging in a pattern of harassing conduct which causes or is

likely to cause emotional or psychological harm to the patient or resident, including but not limited

to, ridiculing or demeaning a patient or resident, making derogatory remarks to a patient or resident

or cursing directed towards a patient or resident, or threatening to inflict physical or emotional harm

on a patient or resident.

     (2) Nothing in this section shall be construed to prohibit the prosecution of any violator of

this section under any other chapter.

     (b) “Department” means the department of health when the incident occurs in a health care

facility, and the department of behavioral healthcare, developmental disabilities and hospitals when

the incident occurs in a community residence for people who are mentally retarded or persons with

developmental disabilities.

     (c) “Facility” means any health care facility or community residence for persons who are

mentally retarded, or persons with developmental disabilities as those terms are defined in this

section. “Health care facility” means any hospital or facility which provides long-term health care

required to be licensed under chapter 17 of this title, and any assisted living residence required to

be licensed under chapter 17.4 of this title, and any community residence whether privately or

publicly owned. “Community residence” for persons who are mentally retarded or persons with

developmental disabilities means any residential program licensed by the department of behavioral

healthcare, developmental disabilities and hospitals which meets the definition of a community

residence as defined in §  40.1-24-1(2) and provides services to people who are mentally retarded

or persons with developmental disabilities.

     (d) “High Managerial Agent” means an officer of a facility, the administrator and assistant

administrator of the facility, the director and assistant director of nursing services, or any other

agent in a position of comparable authority with respect to the formulation of the policies of the

facility or the supervision in a managerial capacity of subordinate employees.

     (e) “Mistreatment” means the inappropriate use of medications, isolation, or use of physical

or chemical restraints:

     (1) As punishment;

     (2) For staff convenience;

     (3) As a substitute for treatment or care;

     (4) In conflict with a physician’s order; or

     (5) In quantities which inhibit effective care or treatment, or which harms or is likely to

harm the patient or resident.

     (f) “Neglect” means the intentional failure to provide treatment, care, goods, and services

necessary to maintain the health and safety of the patient or resident, or the intentional failure to

carry out a plan of treatment or care prescribed by the physician of the patient or resident, or the

intentional failure to report patient or resident health problems or changes in health problems or

changes in health conditions to an immediate supervisor or nurse, or the intentional lack of attention

to the physical needs of a patient or resident including, but not limited to toileting, bathing, meals,

and safety. No person shall be considered to be neglected for the sole reason that he or she relies

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on or is being furnished treatment in accordance with the tenets and teachings of a well-recognized

church or denomination by a duly-accredited practitioner of a well-recognized church or

denomination.

     (g) “Patient” means any person who is admitted to a facility for treatment or care, while

“resident” means any person who maintains their residence or domicile, on either a temporary or

permanent basis, in a facility.

     (h) “Person” means any natural person, corporation, partnership, unincorporated

association, or other business entity.

     (i) “Immediate jeopardy” means a situation in which the nursing facility’s alleged

noncompliance with one or more state or federal requirements or conditions has caused, or is likely

to cause serious injury, harm, impairment or death to a resident; or shall be defined in accordance

with 42 CFR 489 or any subsequent applicable federal regulations.

     (j) “Non-immediate jeopardy — high potential for harm” means a situation in which a

nursing facility’s alleged noncompliance with one or more state or federal requirements or

conditions may have caused harm that negatively impacts the individual’s mental, physical and/or

psychosocial status; or shall be defined in accordance with 42 CFR 489 or any subsequent

applicable federal regulations.

     (k) “Non-immediate jeopardy — medium potential for harm” means a situation in which a

nursing facility’s alleged noncompliance with one or more state or federal requirements or

conditions has caused or may have caused harm that is of limited consequence and does not

significantly impair the individual’s mental, physical and/or psychosocial status to function; or shall

be defined in accordance with 42 CFR 489 or any subsequent applicable federal regulations.

     (l) “Non-immediate jeopardy — low potential for harm” means a situation in which a

nursing facility’s alleged noncompliance with one or more state or federal requirements or

conditions may have caused mental, physical and/or psychosocial discomfort that does not

constitute injury or damage; or shall be defined in accordance with 42 CFR 489 or any subsequent

applicable federal regulations.

     SECTION 2. Section 42-66-4.1 of the General Laws in Chapter 42-66 entitled "Office of

Healthy Aging" is hereby amended to read as follows:

     42-66-4.1. Definitions.

     As used in this chapter:

     (1) “Abuse” means physical abuse, sexual abuse, and/or emotional abuse of an elderly

person by a caregiver as defined in subsection (5).

     (a) “Physical abuse” means the willful infliction of physical pain or injury (e.g. slapping,

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bruising or restraining) upon an elderly person.

     (b) “Sexual abuse” means the infliction of non-consensual sexual contact of any kind upon

an elderly person. Sexual abuse includes, but is not limited to, sexual assault, rape, sexual misuse

or exploitation of an elder, as well as threats of sexual abuse where the perpetrator has the intent

and the capacity to carry out the threatened abuse.

     (c) “Emotional abuse” means a pattern of willful infliction of mental or emotional harm

upon an elder by threat, intimidation, isolation or other abusive conduct.

     (2) “Exploitation” means the fraudulent or otherwise illegal, unauthorized or improper act

or process of an individual, including, but not limited to, a caregiver or fiduciary, that uses the

resources of an elder for monetary or personal benefit, profit, gain, or that results in depriving an

elder of rightful access to, or use of, benefits, resources, belongings, or assets by use of undue

influence, harassment, duress, deception, false representation or false pretenses.

     (3) “Neglect” means the willful failure by a caregiver or other person with a duty of care

to provide goods or services necessary to avoid physical harm, mental harm or mental illness to an

elderly person, including, but not limited to, “abandonment” (withdrawal of necessary assistance)

and denial of food or health related services.

     (4) “Willful” means intentional, conscious and directed toward achieving a purpose.

     (5) “Caregiver” means a person who has assumed the responsibility for the care of the

elderly person voluntarily, by contract or by order of a court of competent jurisdiction, or who is

otherwise legally responsible for the care of the elderly person.

     (6) “Self-neglect” means a pattern of behavior in an elderly person that directly,

imminently and significantly threatens his/her own health and/or, safety. Self-neglect includes, but

is not limited to, an inability or an incapacity to provide self with food, water, shelter, or safety to

the point of establishing imminent risk of any of the harm(s) described in the immediately preceding

sentence.

     (7) “Protective services” means services and/or action intended to prevent and/or alleviate

the abuse, neglect, exploitation or self-neglect of elderly persons. Protective services may include

supervision, counseling, and assistance in securing health and supportive services, safe living

accommodations and legal intervention.

     (8) “Elderly person” or “elder” means any person sixty (60) years of age or older.

     SECTION 3. 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 -- ABUSE IN HEALTHCARE FACILITIES

***

     This act would remove the intent requirement relative to the definitions of "abuse" within

the chapter on "abuse in healthcare facilities" and would amend the definitions of "abuse" and

"neglect" with regard to elderly affairs by deleting the element of willful conduct. This act would

also delete the definition of willful.

     This act would take effect upon passage.

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