TITLE 23
Health and Safety

CHAPTER 23-17.8
Abuse in Health Care Facilities

SECTION 23-17.8-1


§ 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 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 mental health, retardation, 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 mental health, retardation, 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 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.

History of Section.
(P.L. 1987, ch. 409, § 1; P.L. 1988, ch. 211, § 1; P.L. 1989, ch. 504, § 1; P.L. 1991, ch. 235, § 1; P.L. 1991, ch. 240, § 3; P.L. 1991, ch. 318, § 1; P.L. 1992, ch. 423, § 1; P.L. 1993, ch. 386, § 1; P.L. 1994, ch. 317, § 1; P.L. 1999, ch. 83, § 51; P.L. 1999, ch. 130, § 51; P.L. 2005, ch. 156, § 4; P.L. 2005, ch. 248, § 4; P.L. 2006, ch. 361, § 2; P.L. 2006, ch. 501, § 2.)