2022 -- S 2615

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LC004997

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

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A N   A C T

RELATING TO BEHAVIORAL HEALTHCARE, DEVELOPMENTAL DISABILITIES AND

HOSPITALS -- INTELLECTUAL/DEVELOPMENTAL DISABILITIES OMBUDSPERSON

ACT OF 2022

     

     Introduced By: Senators DiMario, DiPalma, Miller, Valverde, Burke, Lawson, Kallman,
Seveney, and Euer

     Date Introduced: March 10, 2022

     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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INTELLECTUAL/DEVELOPMENTAL DISABILITIES AND HOSPITALS" is hereby amended

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by adding thereto the following chapter:

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CHAPTER 22.2

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INTELLECTUAL/DEVELOPMENTAL DISABILITIES OMBUDSPERSON ACT OF 2022

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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 "Intellectual/Developmental

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Disabilities Ombudsperson Act of 2022."

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     40.1-22.2-2. Program established.

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     There is established a program of the intellectual/developmental disabilities

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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 an intellectual/developmental disability" means a person, eighteen (18)

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years old or older and not under the jurisdiction of the department of children, youth, and families

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who is either an adult with an intellectual/developmental disability or is a person with a severe,

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chronic disability which:

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     (i) Is attributable to a mental or physical impairment or combination of mental and physical

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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 areas

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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, interdisciplinary,

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or generic care, treatment, or other services, which are of lifelong or extended duration and are

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individually planned and coordinated. For the purposes of funding, it is understood that students

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enrolled in school will continue to receive education from their local education authority in

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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 at

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least twenty-four (24) hours; where, on a twenty-four (24) hour basis, direct supervision is provided

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for the purpose of providing rehabilitative treatment, habilitation, psychological support, and/or

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social guidance for adults with intellectual/developmental disabilities. The facilities shall include,

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but 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 the

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purposes of this chapter and the rules and regulations herein.

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     (5) "Intellectual/developmental disabilities ombudsperson nominating committee" means

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a committee comprised of:

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     (i) Director of the department of behavioral healthcare, developmental disabilities, and

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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 Disability Rights Rhode Island, 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, 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 intellectual/developmental disabilities ombudsperson nominating committee shall

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meet when needed to solicit, accept and review applications for the position of

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intellectual/developmental disabilities ombudsperson and provide the governor with a list of three

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(3) to five (5) qualified candidates.

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     (6) "Developmentally 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 for

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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, intellectual/developmental disabilities, and hospitals or the person or entity

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designated as the state's intellectual/developmental disabilities ombudsperson by the governor,

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including the employees or agents of such person or entity, when they are acting to fulfill the duties

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and responsibilities of the state's intellectual/developmental disabilities ombudsperson program in

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which information is necessary to oversee the care system and in accordance with the U.S. Health

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Insurance Portability and Accountability Act (HIPAA) of 1996.

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

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from performing his or her official duties.

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

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

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

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the provision of support services to adults with intellectual/developmental disabilities.

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     (12) "Person" means any individual, trust, estate, partnership, limited liability corporation,

 

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corporation (including associations, joint stock companies, and insurance companies), state, or

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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 intellectual/developmental

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disabilities and which is licensed by the department of behavioral healthcare, developmental

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disabilities and hospitals pursuant to chapter 24 of title 40.1. For the purposes of this section,

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"provider" shall also include any residential and/or day program services operated by the

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department of behavioral healthcare, developmental disabilities and hospitals and the state of

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Rhode Island.

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     (14) "Services" means those services provided and shall include, but not be limited to,

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intellectual/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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     (16) "Student with an intellectual/developmental disability in transition to adult services"

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means a person, sixteen (16) to twenty-two (22) years old who is transitioning from special

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education services to adult services and is either a person with an intellectual/developmental

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disability or is a person with a severe, chronic disability which:

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     (i) Is attributable to a mental or physical impairment or combination of mental and physical

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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 areas

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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, interdisciplinary,

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or generic care, treatment, or other services, which are of lifelong or extended duration and are

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individually planned and coordinated. For the purposes of funding, it is understood that students

 

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enrolled in school will continue to receive education from their local education authority in

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accordance with chapter 24 of title 16.

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     40.1-22.2-4. Intellectual/developmental disabilities ombudsperson.

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

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ombudsperson for the purpose of advocating on behalf of adults with an intellectual/developmental

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disability and students with an intellectual/developmental disability in transition to adult services,

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

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

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practices or omissions that constitute a violation of applicable statutes or regulations or that may

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

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intellectual/developmental disability and students with an intellectual/developmental disability in

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transition to adult services. The intellectual/developmental disabilities ombudsperson may dismiss

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

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complaint. The governor shall appoint the intellectual/developmental disabilities ombudsperson

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from a list of three (3) to five (5) candidates provided by the intellectual/developmental disabilities

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ombudsperson nominating committee to a term of five (5) years with the advice and consent of the

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senate. The department of administration may operate the office of intellectual/developmental

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

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with any public agency or nonprofit organization. The intellectual/developmental disabilities

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ombudsperson shall hire additional staff and recruit/train volunteers as necessary to carry out the

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powers and duties of the office.

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     40.1-22.2-5. Powers and duties.

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     The intellectual/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 an intellectual/developmental disability;

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     (ii) Are made by, or on behalf of students with an intellectual/developmental disability in

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regard to transition to adult services; and

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     (iii) 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 an intellectual/developmental disability

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(including the welfare and rights of adults with an intellectual/developmental disability with respect

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to the appointment and activities of guardians and representative payees and health care and

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financial powers of attorney, 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 an intellectual/developmental disability and

 

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students with an intellectual/developmental disability in transition to adult services before

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

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welfare, rights, and quality of life of the adults with an intellectual/developmental disability

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including, but not limited to, rights with respect to the appointment or removal of guardians,

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representative payees and 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-four

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(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, and

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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 healthcare,

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developmental disabilities and hospitals, the executive office of health and human services and the

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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 an intellectual/developmental disability

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discharged from community residences or shared living residences;

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     (8) Provide referral services to assist adults with intellectual/developmental disabilities and

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students with an intellectual/developmental disability in transition to adult services in protecting

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

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     (9) Inform adults with intellectual/developmental disabilities and students with an

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intellectual/developmental disability in transition to adult services of their rights and advocate on

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

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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 intellectual/developmental disabilities.

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     40.1-22.2-6. Confidentiality.

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     The files maintained by the intellectual/developmental disabilities ombudsperson are

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confidential and shall be disclosed only with the written consent of the adult or student with an

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intellectual/developmental disability affected or his or her legal representative/guardian, or if any

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disclosure is required by court order. Nothing in this subsection shall be construed to prohibit the

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disclosure of information gathered in an investigation to any interested party as may be necessary

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to resolve the complaint or to refer to other appropriate state agencies investigating civil, criminal

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or licensing violations.

 

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

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intellectual/developmental disability and students with an intellectual/developmental

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disability in transition to adult services.

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     (a) In the course of an investigation, the intellectual/developmental disabilities

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ombudsperson shall:

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     (1) 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 intellectual/developmental disabilities ombudsperson's

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duties, the intellectual/developmental disabilities ombudsperson shall have access to and may

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engage in the following:

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     (1) A community residence to visit, talk with, make personal, social, and other appropriate

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services available;

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     (2) A community residence to inform them of their rights and entitlements and

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corresponding obligations under federal and state law by distribution of educational materials,

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discussion in groups, or discussion with individuals and their families; and

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

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

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

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health 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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     (e) In the ordinary course of the intellectual/developmental disabilities ombudsperson's

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duties, the intellectual/developmental disabilities ombudsperson shall have access to students with

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an intellectual/developmental disability in transition to adult services to provide the following:

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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 students with an

 

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intellectual/developmental disability in transition to adult services to extend to them the full

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enjoyment of their rights.

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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 an intellectual/developmental disability or students with an intellectual/developmental

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disability in transition to adult services; nor against any resident of a community residence; nor

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against any student; nor against any school employee; nor against any volunteer for any

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communication by him or her with the intellectual/developmental disabilities ombudsperson or for

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any information given or disclosed by him or her in good faith to aid the intellectual/developmental

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disabilities ombudsperson in carrying out his or her duties and responsibilities.

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     40.1-22.2-9. Cooperation required.

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     (a) The intellectual/developmental disabilities ombudsperson may request from any

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

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assistance, services, and data that will enable the intellectual/developmental disabilities

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ombudsperson to properly perform or exercise any of his or her functions, duties and powers under

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this chapter.

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     (b) The intellectual/developmental disabilities ombudsperson shall cooperate and assist

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other 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, the department of education and any other

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pertinent departments or agencies.

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     40.1-22.2-10. Annual reports.

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     The intellectual/developmental disabilities ombudsperson shall submit an annual report of

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the activities of the intellectual/developmental disabilities ombudsperson program and the

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intellectual/developmental disabilities ombudsperson's activities concerning facilities and the

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protection of the rights of adults with an intellectual/developmental disability and students with an

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intellectual/developmental disability in transition to adult services to the governor, speaker of the

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house, senate president, chairs of the senate and house committee on finance, chairs of the senate

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and house committee on health and human services, chairs of the senate and house committee on

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

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of behavioral healthcare, developmental disabilities and hospitals, the commissioner of elementary

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and secondary education, the chairperson of the Rhode Island special education advisory

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committee, the chairperson of the Rhode Island developmental disabilities council, the chairperson

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of the governor's commission on disabilities, the executive director of Disability Rights Rhode

 

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

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Action, the chairperson of the Community Providers Network of Rhode Island, the state librarian,

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and other 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 that

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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 intellectual/developmental disabilities ombudsperson shall promulgate

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

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intellectual/developmental disabilities ombudsperson program including, but not limited to, the

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procedures for the receipt, investigation and resolution, through administrative action, of

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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

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intellectual/developmental disabilities ombudsperson shall establish an interagency agreement

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between the department of behavioral healthcare, intellectual/developmental disabilities and

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hospitals, the department of education, the department of health, the department of human services,

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and the office of attorney general to ensure a cooperative effort in meeting the needs of adults with

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an intellectual/developmental disability and students with an intellectual/developmental disability

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in transition to adult services.

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     40.1-22.2-14. Non-interference.

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     No person shall willfully interfere with the intellectual/developmental disabilities

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ombudsperson in 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 of §§ 40.1-22.2-8 and 40.1-22.2-14.

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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 any

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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 validity

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of the remainder of this chapter and to this end the provisions of the chapter are declared to be

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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 -- INTELLECTUAL/DEVELOPMENTAL DISABILITIES OMBUDSPERSON

ACT OF 2022

***

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     This act would create an intellectual/developmental disabilities ombudsperson program.

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The intellectual/developmental disabilities ombudsperson would be selected by a committee,

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named by the governor, and would advocate on behalf of adults with intellectual/developmental

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disabilities and students with intellectual/developmental disabilities in transition to adult services.

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     This act would take effect upon passage.

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