2012 -- S 2730 SUBSTITUTE A

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LC01816/SUB A/2

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO CRIMINAL OFFENSES -- ASSAULTS

     Introduced By: Senators McCaffrey, Metts, and Jabour

     Date Introduced: March 06, 2012

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 11-5-10.2, 11-5-11 and 11-5-12 of the General Laws in Chapter

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11-5 entitled "Assaults" are hereby amended to read as follows:

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     11-5-10.2. Assault on persons with severe impairments causing serious bodily injury.

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-- (a) Any person who shall commit an assault or battery, or both, upon a person, with severe

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impairments causing serious bodily injury, shall be deemed to have committed a felony and shall

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be imprisoned for not less than two (2) years but not more than twenty (20) years, or fined not

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more than five thousand dollars ($5,000), or both. Every person so convicted shall be ordered to

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make restitution to the victim of the offense or to perform up to five hundred (500) hours of

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public community restitution work, or both, or any combination of them imposed by the

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sentencing judge. The court may not waive the obligation to make restitution and/or public

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community restitution work. The restitution and/or public community restitution work shall be in

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addition to any fine or sentence which may be imposed and not in lieu of the fine or sentence.

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      (b) "Serious bodily injury" means physical injury that:

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      (1) Creates a substantial risk of death, serious disfigurement;

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      (2) Causes protracted loss or impairment of the function of any bodily part, member or

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organ; or

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      (3) Causes serious permanent disfigurement.

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      (c) For the purposes of this section:

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      (1) "Adult" means a person over the age of eighteen (18).

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      (2) "Major life activities" means: (i) mobility; (ii) self-care; (iii) communication; (iv)

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receptive and/or expressive language; (v) learning; (vi) self-direction; (vii) capacity for

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independent living; or (viii) economic self-sufficiency.

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      (3) "Person with severe impairments" means a child or adult who has a disability which

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is attributable to a mental or physical impairment or combination of mental and physical

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impairments and results in substantial functional limitations in one or more major life activities.

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      (d) Violations of this section shall be reported to the local police department.

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      (e) After July 1, 2007 pursuant to section 40-8.5-2, the local police department may

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request the department of mental health, retardation, behavioral healthcare, developmental

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disabilities and hospitals provide crisis intervention services for the adult victim with severe

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impairments when:

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      (1) Necessary to ensure the immediate health and safety of the adult victim; and

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      (2) The adult victim relies on the person believed to have committed the assault and/or

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battery, for assistance in performing three (3) or more major life activities; and

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     (3) After the victim is informed of his or her right to refuse crisis intervention and/or

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supportive services.

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     11-5-11. Assault on persons with severe impairments. -- (a) For the purposes of this

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section:

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      (1) "adult" means a person over the age of eighteen (18).

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      (2) "major life activities" means: (i) mobility; (ii) self-care; (iii) communication; (iv)

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receptive and/or expressive language; (v) learning; (vi) self-direction; (vii) capacity for

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independent living; or (viii) economic self-sufficiency.

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      (3) "person with severe impairments" means a child or adult who has a disability which

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is attributable to a mental or physical impairment or combination of mental and physical

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impairments which results in a substantial limitation on the person's ability to function

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independently in the family or community and in one or more major life activities.

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      (b) Any person who shall commit an assault and battery upon a person who is severely

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impaired as defined in subsection (a) of this section, causing bodily injury, shall be deemed to

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have committed a felony and shall be imprisoned not exceeding five (5) years, or fined not

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exceeding two thousand dollars ($2,000), or both.

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      (c) Violations of this section shall be reported to the local police department.

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      (d) After July 1, 2007 pursuant to section 40-8.5-2, the local police department may

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request the department of mental health, retardation, behavioral healthcare, developmental

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disabilities and hospitals provide crisis intervention services for the adult victim with severe

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impairments when:

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      (1) Necessary to ensure the immediate health and safety of the adult victim; and

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      (2) The adult victim relies on the person believed to have committed the assault and/or

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battery, for assistance in performing three (3) or more major life activities; and

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     (3) After the victim is informed of his or her right to refuse crisis intervention and/or

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supportive services.

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     11-5-12. Abuse, neglect and/or exploitation of adults with severe impairments. -- (a)

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Any person primarily responsible for the care of an adult with severe impairments who shall

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willfully and knowingly abuse, neglect or exploit that adult shall be subject to a fine of not more

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than two thousand dollars ($2,000), or imprisoned not more than five (5) years, or both, and

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ordered to make full restitution of any funds as the result of any exploitation which results in the

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misappropriation of funds. Every person convicted of or placed on probation for violation of this

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section shall be ordered by the sentencing judge to attend appropriate professional counseling to

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address his or her abusive behavior.

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      (b) As used in this section:

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      (1) "Abuse" means the subjection of an adult with a severe impairment to willful

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infliction of physical pain, willful deprivation of services necessary to maintain the physical or

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mental health of the person, or unreasonable confinement.

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      (2) "Adult with severe impairments" means a person over the age of eighteen (18) who

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has a disability which is attributable to a mental or physical impairment or combination of mental

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and physical impairments and results in substantial functional limitations in one or more of the

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following areas of major life activity: (i) mobility; (ii) self-care; (iii) communication; (iv)

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receptive and/or expressive language; (v) learning; (vi) self-direction; (vii) capacity for

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independent living; or (viii) economic self-sufficiency.

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      (3) "Exploitation" means an act or process of taking pecuniary advantage of impaired

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persons by use of undue influence, harassment, duress, deception, false representation, false

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pretenses, or misappropriation of funds.

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      (4) "Neglect" means the willful refusal to provide services necessary to maintain the

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physical or mental health of an adult with severe impairments.

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      (5) "Person primarily responsible for care" or "caregiver" means any person who is for a

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significant period of time the primary caregiver or is primarily responsible for the management of

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the funds of an adult with severe impairments.

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      (c) Violations of this section shall be reported to the local police department.

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      (d) After July 1, 2007 pursuant to section 40-8.5-2, the local police department may

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request the department of mental health, retardation, behavioral healthcare, developmental

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disabilities and hospitals provide crisis intervention services for the adult victim with severe

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impairments when:

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      (1) necessary to ensure the immediate health and safety of the adult victim; and

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      (2) the adult victim relies on the person believed to have committed the abuse, neglect

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and/or exploitation, for assistance in performing three (3) or more major life activities; and

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     (3) After the victim is informed of his or her right to refuse crisis intervention and/or

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supportive services.

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      (e) Any person who fails to report known or suspected abuse or neglect shall be guilty of

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a misdemeanor and upon conviction shall be subject to a fine of not more than five hundred

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dollars ($500).

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      (f) Nothing in this section shall be interpreted to apply to the discontinuance of life-

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support systems or life-sustaining treatment for an adult for whom, if the treatment were

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terminated, death may result.

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      (g) Any person participating in good faith in making a report pursuant to this chapter,

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excluding any perpetrator or conspirator of the acts, shall have immunity from any civil liability

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that might otherwise be incurred or imposed.

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      (h) Nothing in this section shall be interpreted to prohibit the use of any medical or

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psychological treatment procedure designed and conducted in accordance with applicable

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professional standards when performed by appropriately trained personnel under the supervision

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of a person or facility licensed or approved by the state of Rhode Island and when any consent as

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is required by law has been obtained.

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      (i) Nothing in this chapter shall be construed to mean a person is abused or neglected for

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the sole reason that the person is being furnished or relies upon treatment by spiritual means

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through prayer alone in accordance with the tenets and practices of a church or religious

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denomination recognized by the laws of this state.

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      (j) Nothing in this chapter shall be construed to mean a person is abused or neglected

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when the parent or legal guardian of an adult with severe impairments, who is the person

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primarily responsible for care of the adult, (1) decides, in good faith, not to accept support

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services from a governmental agency, which in the opinion of the parent or legal guardian and the

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adult, is considered to be inappropriate or inconsistent with the best interests of that adult; or (2)

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decides, in good faith, to reduce or discontinue assistance to that adult who is developing,

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acquiring or practicing independent decision-making or living skills.

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     SECTION 2. Sections 23-17.8-2 and 23-17.8-3.1 of the General Laws in Chapter 23-17.8

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

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

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

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

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

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

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

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

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

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

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

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

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

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of the department of mental health, retardation, behavioral healthcare, developmental disabilities

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and hospitals or his or her designee for those incidents involving community residences for

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people who are mentally retarded or persons with developmental disabilities. The report shall

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contain:

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

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phone number of the person reporting;

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

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the abuse, mistreatment, or neglect;

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

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

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they were made;

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

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

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

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

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

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

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

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

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

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

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

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(3) business days with a written report.

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     23-17.8-3.1. Physician's, certified registered nurse practitioner's and physician

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assistant's report of examination -- Duty of facility. -- Whenever a facility shall receive a

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report by a person other than a physician or a certified registered nurse practitioner or physician

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assistant that a patient or resident of the facility has been harmed as a result of abuse, neglect, or

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mistreatment, the facility shall have the patient examined by a licensed physician or a certified

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registered nurse practitioner or physician assistant. It shall be mandatory for the physician or

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certified registered nurse practitioner or physician assistant to make a preliminary report of his or

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her findings to the department of health for a health care facility, or to the department of mental

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health, retardation, behavioral healthcare, developmental disabilities and hospitals and hospitals

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for a community residence for people who are mentally retarded or persons with developmental

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disabilities and to the facility within forty-eight (48) hours after his or her examination, and a

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written report within five (5) days after his or her examination.

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     SECTION 3. Section 40-8.5-2 of the General Laws in Chapter 40-8.5 entitled "Health

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Care for Elderly and Disabled Residents Act" is hereby amended to read as follows:

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     40-8.5-2. Services for adult victims with severe impairments of abuse, neglect and/or

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exploitation Crisis intervention services for adult victims with severe impairments of abuse,

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neglect and/or exploitation. -- (a) As used in this section the terms:

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      (1) "Adult victim with severe impairments" means:

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      (i) A person over the age of eighteen (18) who has a disability which is attributable to a

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mental or physical impairment or combination of mental and physical impairments and results in

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substantial functional limitations in three (3) or more major life activities;

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      (ii) Is an alleged victim of abuse, neglect or exploitation pursuant to section 11-5-12; or

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assault pursuant to section 11-5-10.2 or 11-5-11 by a caregiver of the victim;

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      (iii) The adult victim relies on the person believed to have committed the abuse, neglect,

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and/or exploitation, for assistance in performing three (3) or more major life activities; and

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      (iv) Crisis intervention services are necessary to ensure the immediate health and safety

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of the adult victim.

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      (2) "Crisis intervention services" means the short term provision of health care and

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residential services in the immediate hours and days following the abuse, neglect and/or

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exploitation of an adult victim with severe impairments;

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      (3) "Major life activities" mean: (i) mobility; (ii) self-care; (iii) communication; (iv)

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receptive and/or expressive language; (v) learning; (vi) self-direction; (vii) capacity for

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independent living; or (viii) economic self-sufficiency; and

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     (4) “Secretary” means the secretary of the executive office of health and human services;

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and

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     (4)(5) "Supportive services" means longer term support services for an adult victim with

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severe impairments, and when appropriate that victim's family.

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      (b) After July 1, 2007, local police departments may request the department of mental

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health, retardation, behavioral healthcare, developmental disabilities and hospitals provide crisis

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intervention services for the adult victim with severe impairments when:

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      (1) Necessary to ensure the immediate health and safety of the adult victim; and

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      (2) The adult victim with severe impairments relies on the person believed to have

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committed the abuse, neglect and/or exploitation for assistance in performing three (3) or more

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major life activities.;

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     (3) After the victim is informed of his or her right to refuse crisis intervention and/or

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supportive services.

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      (c) (1) If the department of mental health, retardation, behavioral healthcare,

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developmental disabilities and hospitals and hospitals determines that longer term supportive

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services are necessary, the victim and when appropriate that victim's family will be referred to the

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public and private agencies and departments whose supportive services are within its statutory

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and/or regulatory responsibility, as are needed by the victim.

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      (2) In developing the supportive services care plan, the adult victim with severe

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impairments' rights to self-determination and lifestyle preferences commensurate with his or her

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needs shall be of prime consideration.

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      (3) If the adult victim with severe impairments withdraws consent or refuses to accept

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crisis intervention or supportive services, the services shall not be provided.

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      (d) The department of human services is hereby authorized to seek federal approval of a

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state plan amendment to its title XIX state plan to initiate crisis intervention services and support

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services for adults who qualify for title XIX services and are adult victims of with severe

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impairments of abuse, assault, neglect or exploitation.

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     (e) The secretary shall recognize the statewide toll free, twenty-four (24) hour a day,

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seven (7) days quality assurance hotline operated by the department of behavioral healthcare,

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developmental disabilities and hospitals, and authorized pursuant to section 40.1-26-10, for the

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use of the general public to report abuse, neglect, and exploitation and/or request crisis

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intervention and/or supportive services for adult victims with severe impairments.

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     SECTION 4. Section 40.1-5-40.1 of the General Laws in Chapter 40.1-5 entitled "Mental

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Health Law" is hereby amended to read as follows:

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     40.1-5-40.1. Duty to report. -- Any employee who has reasonable cause to believe that

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an assault or a battery has been committed upon a patient shall make an immediate report,

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including the identity of parties and witnesses and details of the incident, to the director of the

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department of mental health, retardation, behavioral healthcare, developmental disabilities and

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hospitals and hospitals or his or her designee. The director of the department shall cause the

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report to be investigated immediately and further shall notify the mental health advocate and

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appropriate law enforcement agencies of the investigation. Any person who fails to make a report

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shall be guilty of a misdemeanor punishable by a fine of not more than five hundred dollars

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($500).

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     SECTION 5. Section 40.1-5.3-17 of the General Laws in Chapter 40.1-5.3 entitled

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"Incompetency to Stand Trial and Persons Adjudged Not Guilty by Reason of Insanity" is hereby

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amended to read as follows:

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     40.1-5.3-17. Penalties for deprivation of rights -- Disciplinary action -- Duty to

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report. -- (a) Any person who willfully withholds from or denies to a person committed to a

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facility pursuant to this chapter any of his or her rights as herein granted, shall, on conviction

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thereof, be fined not exceeding two thousand dollars ($2,000) or imprisoned not exceeding two

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(2) years.

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      (b) Any employee of a facility who shall deny to or withhold from any person any right

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granted him or her by this chapter shall, independently of the above criminal sanctions, be subject

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to such disciplinary action as the officer in charge shall see fit to impose, after notice, a hearing,

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and a finding of a violation of the right.

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      (c) Any employee who has reasonable cause to believe that an assault or a battery has

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been committed upon a committed person shall make an immediate report, including the identity

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of parties and witnesses and details of the incident, to the director of the department of mental

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health, retardation, behavioral healthcare, developmental disabilities and hospitals and hospitals

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or his or her designee. The director of the department shall cause the report to be investigated

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immediately and further shall notify the mental health advocate and appropriate law enforcement

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agencies of the results of the investigation. Any person who fails to make such a report shall be

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guilty of a misdemeanor punishable by a fine of not more than five hundred dollars ($500).

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     SECTION 6. Sections 40.1-27-2, 40.1-27-3 and 40.1-27-5 of the General Laws in

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Chapter 40.1-27 entitled "Penalties for Abuse of Persons with Developmental Disabilities" are

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hereby amended to read as follows:

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     40.1-27-2. Duty to report. -- (a) Any person within the scope of their employment at a

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program or in their professional capacity who has knowledge of or reasonable cause to believe

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that a participant in a program has been abused, mistreated or neglected shall make, within

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

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the department of mental health, retardation, behavioral healthcare, developmental disabilities

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and hospitals and hospitals or his or her designee. The report shall contain:

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

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phone number of the person reporting;

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      (2) The name and address of the participant who is believed to be the victim of the

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abuse, mistreatment, or neglect;

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

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      (4) Any statements regarding the incident made by the participant and to whom they

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were made;

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

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

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

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

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person may make a report if that person has reasonable cause to believe that a participant has

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been abused, mistreated, or neglected.

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     40.1-27-3. Duties of the director of the department of mental health, retardation,

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and hospitals Duties of the director of the department of behavioral healthcare,

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developmental disabilities and hospitals. -- The director of the department of mental health,

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retardation, behavioral healthcare, developmental disabilities and hospitals and hospitals or his or

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her designee shall:

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

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rights committee forthwith upon receipt of an oral or written report made pursuant to section

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40.1-27-2;

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

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

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hours if the director of the department of mental health, retardation, behavioral healthcare,

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developmental disabilities and hospitals and hospitals has reasonable cause to believe the

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participant's health or safety is in immediate danger of further abuse or neglect and within seven

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(7) days for all other reports. The investigations shall include a visit to the program, an interview

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with the participant allegedly abused, mistreated or neglected, an interview with all witnesses to

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the alleged incident, a determination of the nature, extent, and cause or causes of the injuries, the

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identity of the person or persons responsible therefor, all other pertinent facts and

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recommendations to prevent further abuse, mistreatment or neglect of the participant or other

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program participants. The determination shall be in writing;

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

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

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program;

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

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committee within fifteen (15) days after a case is initially reported pursuant to section 40.1-27-2 a

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summary of the findings and recommendations on each case;

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      (5) If the director of the department of mental health, retardation, behavioral healthcare,

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developmental disabilities and hospitals and hospitals has reasonable cause to believe that a

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participant had died as a result of abuse, mistreatment, or neglect, immediately report the death to

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the attorney general and to the office of the medical examiner. The office of the medical examiner

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shall investigate the report and communicate its preliminary findings, orally within seventy-two

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(72) hours, and in writing within seven (7) working days to the attorney general and to the

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department of mental health, retardation, behavioral healthcare, developmental disabilities and

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hospitals and hospitals. The office of the medical examiner shall also communicate its final

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findings and conclusions, with the basis therefore to the same parties within sixty (60) days;

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

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chapter; and

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

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reports shall be confidential, but shall be released to the attorney general, to a court of competent

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

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

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     40.1-27-5. Physician's report of examination -- Duty of program. -- Whenever a

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program shall receive a report by a person other than a physician that a participant has been

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harmed as a result of abuse, neglect, or mistreatment, the program shall have the patient examined

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by a licensed physician. It shall be mandatory for the physician to make a preliminary report of

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his or her findings to the director of the department of mental health, retardation, behavioral

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healthcare, developmental disabilities and hospitals and hospitals and to the program within forty-

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eight (48) hours after his or her examination, and a written report within five (5) days after his or

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her examination.

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     SECTION 7. This act shall take effect on July 1, 2012.

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LC01816/SUB A/2

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO CRIMINAL OFFENSES -- ASSAULTS

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     This act would replace references to the department of mental health, retardation, and

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hospitals with the department of behavioral healthcare, developmental disabilities and hospitals in

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the criminal assault and abuse laws protecting adults with severe impairments. The act would also

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require a statewide toll free, twenty-four (24) hour a day, seven (7) day a week telephone line, to

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report abuse, neglect, and exploitation and/or request crisis intervention and/or supportive

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services for adult victim with severe impairments. The act would clarify the right of an adult

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victim with severe impairments of an assault, to refuse crisis intervention and/or supportive

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services.

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     This act would take effect on July 1, 2012.

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LC01816/SUB A/2

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