Chapter 254
2012 -- H 7839 SUBSTITUTE A AS
AMENDED
Enacted 06/18/12
A N A C T
RELATING TO
CRIMINAL OFFENSES -- ASSAULTS
Introduced
By: Representatives Naughton, Slater,
Date Introduced: February 28, 2012
It is enacted by the
General Assembly as follows:
SECTION 1. Sections 11-5-10.2, 11-5-11 and 11-5-12 of the
General Laws in Chapter
11-5 entitled
"Assaults" are hereby amended to read as
follows:
11-5-10.2.
Assault on persons with severe impairments causing serious bodily injury.
-- (a) Any person who shall commit an assault or battery, or both,
upon a person, with severe
impairments causing serious bodily injury, shall be deemed to
have committed a felony and shall
be imprisoned for not less than two (2) years but not
more than twenty (20) years, or fined not
more than five thousand dollars ($5,000), or both. Every
person so convicted shall be ordered to
make restitution to the victim of the offense or to
perform up to five hundred (500) hours of
public community restitution work, or both, or any
combination of them imposed by the
sentencing judge. The court may not waive the obligation to make
restitution and/or public
community restitution work. The restitution and/or public
community restitution work shall be in
addition to any fine or sentence which may be imposed and not
in lieu of the fine or sentence.
(b) "Serious
bodily injury" means physical injury that:
(1) Creates
a substantial risk of death, serious disfigurement;
(2) Causes protracted
loss or impairment of the function of any bodily part, member or
organ; or
(3) Causes serious
permanent disfigurement.
(c) For the purposes of
this section:
(1) "Adult" means
a person over the age of eighteen (18).
(2) "Major life
activities" means: (i) mobility; (ii) self-care;
(iii) communication; (iv)
receptive and/or expressive language; (v) learning; (vi)
self-direction; (vii) capacity for
independent living; or (viii) economic self-sufficiency.
(3) "Person with
severe impairments" means a child or adult who has a disability which
is attributable to a mental or physical impairment or
combination of mental and physical
impairments and results in substantial functional limitations in
one or more major life activities.
(d) Violations of this
section shall be reported to the local police department.
(e) After July 1, 2007
pursuant to section 40-8.5-2, the local police department may
request the department of mental health, retardation, behavioral
healthcare, developmental
disabilities and hospitals provide crisis intervention services
for the adult victim with severe
impairments when:
(1) Necessary to ensure
the immediate health and safety of the adult victim; and
(2) The adult victim
relies on the person believed to have committed the assault and/or
battery, for assistance in performing three (3) or more major
life activities; and
(3) After the victim
is informed of his or her right to refuse crisis intervention and/or
supportive services.
11-5-11.
Assault on persons with severe impairments. -- (a)
For the purposes of this
section:
(1) "adult" means a person over the age of eighteen (18).
(2) "major life activities" means: (i)
mobility; (ii) self-care; (iii) communication; (iv)
receptive and/or expressive language; (v) learning; (vi)
self-direction; (vii) capacity for
independent living; or (viii) economic self-sufficiency.
(3) "person with severe impairments" means a child or adult
who has a disability which
is attributable to a mental or physical impairment or
combination of mental and physical
impairments which results in a substantial limitation on the
person's ability to function
independently in the family or community and in one or more major
life activities.
(b) Any person who
shall commit an assault and battery upon a person who is severely
impaired as defined in subsection (a) of this section, causing
bodily injury, shall be deemed to
have committed a felony and shall be imprisoned not
exceeding five (5) years, or fined not
exceeding two thousand dollars ($2,000), or both.
(c) Violations of this
section shall be reported to the local police department.
(d) After July 1, 2007
pursuant to section 40-8.5-2, the local police department may
request the department of mental health, retardation, behavioral
healthcare, developmental
disabilities and hospitals provide crisis intervention services
for the adult victim with severe
impairments when:
(1) Necessary to ensure
the immediate health and safety of the adult victim; and
(2) The adult victim
relies on the person believed to have committed the assault and/or
battery, for assistance in performing three (3) or more major
life activities; and
(3) After the victim
is informed of his or her right to refuse crisis intervention and/or
supportive services.
11-5-12.
Abuse, neglect and/or exploitation of adults with severe impairments.
-- (a)
Any person primarily responsible for the care of an
adult with severe impairments who shall
willfully and knowingly abuse, neglect or exploit that adult
shall be subject to a fine of not more
than two thousand dollars ($2,000), or imprisoned not more
than five (5) years, or both, and
ordered to make full restitution of any funds as the result
of any exploitation which results in the
misappropriation of funds. Every person convicted of or placed on
probation for violation of this
section shall be ordered by the sentencing judge to attend
appropriate professional counseling to
address his or her abusive behavior.
(b) As used in this
section:
(1) "Abuse"
means the subjection of an adult with a severe impairment to willful
infliction of physical pain, willful deprivation of services
necessary to maintain the physical or
mental health of the person, or unreasonable confinement.
(2) "Adult with
severe impairments" means a person over the age of eighteen (18) who
has a disability which is attributable to a mental or
physical impairment or combination of mental
and physical impairments and results in substantial
functional limitations in one or more of the
following areas of major life activity: (i)
mobility; (ii) self-care; (iii) communication; (iv)
receptive and/or expressive language; (v) learning; (vi)
self-direction; (vii) capacity for
independent living; or (viii) economic self-sufficiency.
(3)
"Exploitation" means an act or process of taking pecuniary advantage
of impaired
persons by use of undue influence, harassment, duress,
deception, false representation, false
pretenses, or misappropriation of funds.
(4) "Neglect"
means the willful refusal to provide services necessary to maintain the
physical or mental health of an adult with severe impairments.
(5) "Person
primarily responsible for care" or "caregiver" means any person
who is for a
significant period of time the primary caregiver or is primarily
responsible for the management of
the funds of an adult with severe impairments.
(c) Violations of this
section shall be reported to the local police department.
(d) After July 1, 2007
pursuant to section 40-8.5-2, the local police department may
request the department of mental health, retardation, behavioral
healthcare, developmental
disabilities and hospitals provide crisis intervention services
for the adult victim with severe
impairments when:
(1) necessary
to ensure the immediate health and safety of the adult victim; and
(2) the
adult victim relies on the person believed to have committed the abuse, neglect
and/or exploitation, for assistance in performing three (3)
or more major life activities; and
(3) After the victim
is informed of his or her right to refuse crisis intervention and/or
supportive services.
(e) Any person who
fails to report known or suspected abuse or neglect shall be guilty of
a misdemeanor and upon conviction shall be subject to a
fine of not more than five hundred
dollars ($500).
(f) Nothing in this
section shall be interpreted to apply to the discontinuance of life-
support systems or life-sustaining treatment for an adult for
whom, if the treatment were
terminated, death may result.
(g) Any person participating
in good faith in making a report pursuant to this chapter,
excluding any perpetrator or conspirator of the acts, shall
have immunity from any civil liability
that might otherwise be incurred or imposed.
(h) Nothing in this
section shall be interpreted to prohibit the use of any medical or
psychological treatment procedure designed and conducted in
accordance with applicable
professional standards when performed by appropriately trained
personnel under the supervision
of a person or facility licensed or approved by the
state of
is required by law has been obtained.
(i)
Nothing in this chapter shall be construed to mean a person is abused or
neglected for
the sole reason that the person is being furnished or
relies upon treatment by spiritual means
through prayer alone in accordance with the tenets and
practices of a church or religious
denomination recognized by the laws of this state.
(j) Nothing in this
chapter shall be construed to mean a person is abused or neglected
when the parent or legal guardian of an adult with severe
impairments, who is the person
primarily responsible for care of the adult, (1) decides, in
good faith, not to accept support
services from a governmental agency, which in the opinion of
the parent or legal guardian and the
adult, is considered to be inappropriate or inconsistent
with the best interests of that adult; or (2)
decides, in good faith, to reduce or discontinue assistance
to that adult who is developing,
acquiring or practicing independent decision-making or living
skills.
SECTION 2. Sections 23-17.8-2 and 23-17.8-3.1 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
of the department of mental health, retardation, behavioral
healthcare, developmental disabilities
and hospitals or his or her designee 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.
23-17.8-3.1.
Physician's, certified registered nurse practitioner's and physician
assistant's report of examination -- Duty of facility. -- Whenever a facility shall receive a
report by a person other than a physician or a certified
registered nurse practitioner or physician
assistant that a patient or resident of the facility has been
harmed as a result of abuse, neglect, or
mistreatment, the facility shall have the patient examined by a
licensed physician or a certified
registered nurse practitioner or physician assistant. It shall
be mandatory for the physician or
certified registered nurse practitioner or physician assistant
to make a preliminary report of his or
her findings to the department of health for a health
care facility, or to the department of mental
health, retardation,
behavioral healthcare, developmental disabilities and hospitals and
hospitals
for a community residence for people who are mentally
retarded or persons with developmental
disabilities and to the facility within forty-eight (48) hours
after his or her examination, and a
written report within five (5) days after his or her
examination.
SECTION 3. Section 40-8.5-2 of the General Laws in Chapter
40-8.5 entitled "Health
Care for Elderly and
Disabled Residents Act" is hereby amended to read as follows:
40-8.5-2. Services
for adult victims with severe impairments of abuse, neglect and/or
exploitation Crisis intervention services for adult victims with
severe impairments of abuse,
neglect and/or exploitation. -- (a) As used in this section the terms:
(1) "Adult victim
with severe impairments" means:
(i)
A person over the age of eighteen (18) who has a disability which is
attributable to a
mental or physical impairment or combination of mental and
physical impairments and results in
substantial functional limitations in three (3) or more major
life activities;
(ii) Is an alleged
victim of abuse, neglect or exploitation pursuant to section 11-5-12; or
assault pursuant to section 11-5-10.2 or 11-5-11 by a
caregiver of the victim;
(iii) The adult victim relies
on the person believed to have committed the abuse, neglect,
and/or exploitation, for assistance in performing three (3)
or more major life activities; and
(iv)
Crisis intervention services are necessary to ensure the immediate
health and safety
of the adult victim.
(2) "Crisis
intervention services" means the short term provision of health care and
residential services in the immediate hours and days following
the abuse, neglect and/or
exploitation of an adult victim with severe impairments;
(3) "Major life
activities" mean: (i) mobility; (ii) self-care;
(iii) communication; (iv)
receptive and/or expressive language; (v) learning; (vi)
self-direction; (vii) capacity for
independent living; or (viii) economic self-sufficiency; and
(4) “Secretary” means
the secretary of the executive office of health and human services;
and
(4)(5)
"Supportive services" means longer term support services for an adult
victim with
severe impairments, and when appropriate that victim's family.
(b) After July 1, 2007,
local police departments may request the department of mental
health, retardation,
behavioral healthcare, developmental disabilities and hospitals provide
crisis
intervention services for the adult victim with severe impairments
when:
(1) Necessary to ensure
the immediate health and safety of the adult victim; and
(2) The adult victim
with severe impairments relies on the person believed to have
committed the abuse, neglect and/or exploitation for assistance
in performing three (3) or more
major life activities.;
(3) After the victim
is informed of his or her right to refuse crisis intervention and/or
supportive services.
(c) (1) If the
department of mental health, retardation, behavioral healthcare,
developmental disabilities
and hospitals and hospitals determines that longer term supportive
services are necessary, the victim and when appropriate that
victim's family will be referred to the
public and private agencies and departments whose supportive
services are within its statutory
and/or regulatory responsibility, as are needed by the
victim.
(2) In developing the
supportive services care plan, the adult victim with severe
impairments' rights to self-determination and lifestyle preferences
commensurate with his or her
needs shall be of prime consideration.
(3) If the adult victim
with severe impairments withdraws consent or refuses to accept
crisis intervention or supportive services, the services
shall not be provided.
(d) The department of
human services is hereby authorized to seek federal approval of a
state plan amendment to its title XIX state plan to
initiate crisis intervention services and support
services for adults who qualify for title XIX services and are
adult victims of with severe
impairments of abuse, assault, neglect or exploitation.
(e) The secretary
shall recognize the statewide toll free, twenty-four (24) hour a day,
seven (7) days quality assurance hotline operated by the
department of behavioral healthcare,
developmental disabilities and hospitals, and authorized pursuant
to section 40.1-26-10, for the
use of the general public to report abuse, neglect, and
exploitation and/or request crisis
intervention and/or supportive services for adult victims with
severe impairments.
SECTION 4. Section 40.1-5-40.1 of the General Laws in
Chapter 40.1-5 entitled "Mental
Health Law" is hereby
amended to read as follows:
40.1-5-40.1.
Duty to report. -- Any employee who has reasonable
cause to believe that
an assault or a battery has been committed upon a
patient shall make an immediate report,
including the identity of parties and witnesses and details of
the incident, to the director of the
department of mental health, retardation, behavioral
healthcare, developmental disabilities and
hospitals and hospitals or his or her designee. The
director of the department shall cause the
report to be investigated immediately and further shall
notify the mental health advocate and
appropriate law enforcement agencies of the investigation. Any
person who fails to make a report
shall be guilty of a misdemeanor punishable by a fine of
not more than five hundred dollars
($500).
SECTION 5. Section 40.1-5.3-17 of the General Laws in Chapter
40.1-5.3 entitled
"Incompetency to Stand
Trial and Persons Adjudged Not Guilty by Reason of Insanity" is hereby
amended to read as follows:
40.1-5.3-17.
Penalties for deprivation of rights -- Disciplinary action -- Duty to
report. -- (a)
Any person who willfully withholds from or denies to a
person committed to a
facility pursuant to this chapter any of his or her rights as
herein granted, shall, on conviction
thereof, be fined not exceeding two thousand dollars ($2,000)
or imprisoned not exceeding two
(2) years.
(b) Any employee of a
facility who shall deny to or withhold from any person any right
granted him or her by this chapter shall, independently of
the above criminal sanctions, be subject
to such disciplinary action as the officer in charge
shall see fit to impose, after notice, a hearing,
and a finding of a violation of the right.
(c) Any employee who
has reasonable cause to believe that an assault or a battery has
been committed upon a committed person shall make an
immediate report, including the identity
of parties and witnesses and details of the incident, to
the director of the department of mental
health, retardation,
behavioral healthcare, developmental disabilities and hospitals and
hospitals
or his or her designee. The director of the department
shall cause the report to be investigated
immediately and further shall notify the mental health advocate
and appropriate law enforcement
agencies of the results of the investigation. Any person who
fails to make such a report shall be
guilty of a misdemeanor punishable by a fine of not more
than five hundred dollars ($500).
SECTION 6. Sections 40.1-27-2, 40.1-27-3 and 40.1-27-5 of
the General Laws in
Chapter 40.1-27 entitled
"Penalties for Abuse of Persons with Developmental Disabilities" are
hereby amended to read as follows:
40.1-27-2.
Duty to report. -- (a) Any
person within the scope of their employment at a
program or in their professional capacity who has knowledge
of or reasonable cause to believe
that a participant in a program has been abused,
mistreated or neglected shall make, within
twenty-four (24) hours or by the end of the next business
day, a written report to the director of
the department of mental health, retardation, behavioral
healthcare, developmental disabilities
and hospitals and hospitals or his or her
designee. 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 participant 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 participant 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; and
(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 participant has
been abused, mistreated, or neglected.
40.1-27-3. Duties
of the director of the department of mental health, retardation,
and hospitals Duties of the director of the department of
behavioral healthcare,
developmental disabilities and hospitals. -- The director of the department of mental health,
retardation, behavioral
healthcare, developmental disabilities and hospitals and hospitals or
his or
her designee shall:
(1) Notify the attorney
general or his or her designee, the chair of the program's human
rights committee forthwith upon receipt of an oral or
written report made pursuant to section
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 mental
health, retardation, behavioral healthcare,
developmental disabilities
and hospitals 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 within fifteen (15) days after a case is initially
reported pursuant to section 40.1-27-2 a
summary of the findings and recommendations on each case;
(5) If the director of
the department of mental health, retardation, behavioral healthcare,
developmental disabilities
and hospitals 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 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 and to the
department of mental health, retardation, behavioral
healthcare, developmental disabilities and
hospitals 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
(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 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.
40.1-27-5.
Physician's report of examination -- Duty of program. --
Whenever a
program shall receive a report by a person other than a
physician that a participant has been
harmed as a result of abuse, neglect, or mistreatment, the
program shall have the patient examined
by a licensed physician. It shall be mandatory for the
physician to make a preliminary report of
his or her findings to the director of the department of mental
health, retardation, behavioral
healthcare, developmental disabilities and hospitals and hospitals and to the program
within forty-
eight (48) hours after his or her examination, and a
written report within five (5) days after his or
her examination.
SECTION 7. This act shall take effect on July 1, 2012.
=======
LC01750/SUB A
========