Chapter 501

2006 -- H 8166

Enacted 07/07/06

A N A C T

RELATING TO HEALTH AND SAFETY - LONG-TERM CARE

Introduced By: Representatives Naughton, Slater, Diaz, McNamara, and Malik

Date Introduced: May 31, 2006

It is enacted by the General Assembly as follows:

SECTION 1. Section 42-66.7-3, 42-66.7-5 and 42-66.7-7 of the General Laws in Chapter

42-66.7 entitled "Long-Term Care Ombudsperson Act of 1995" are hereby amended to read as

follows:

42-66.7-3. Definitions. -- As used in this chapter:

(1) An "act" of any facility or government agency includes any failure or refusal to act

by any facility or government agency.

(2) "Administrator" means any person who is charged with the general administration or

supervision of a facility whether or not that person has an ownership interest and whether or not

that person's functions and duties are shared with one or more other persons.

(3) "Elderly" means any person sixty (60) years of age or older who is a resident of any

facility.

(4) "Facility" means any facility or institution, home care provider or home nursing care

provider, whether public or private, offering health or health related services for the

institutionalized elderly, and which is subject to regulation, visitation, inspection, or supervision

by any government agency. "Facilities" include, but are not limited to, nursing homes,

intermediate care facilities, extended care facilities, convalescent homes, rehabilitation centers,

home care agencies, homes for the aged, veterans' homes, boarding homes, and residential care

and assisted living residences.

(5) "Government agency" means any department, division, office, bureau, board,

commission, authority, non-profit community organization, or any other agency or

instrumentality created by any municipality or by the state, or to which the state is a party, which

is responsible for the regulation, inspection, visitation, or supervision of facilities or which

provides services to residents of facilities.

(6) "Ombudsperson" means the person or persons designated by the director. That person

or persons shall have expertise and experience in the fields of social work, long term care, and

advocacy, and shall be qualified and experienced in communicating with the elderly.

(7) "Resident" means any person age sixty (60) years of age or older who is receiving

treatment, care, or housing in any facility in all of its aspects including, but not limited to,

admission, retention, confinement, period of residence, transfer, discharge, and in any instances

directly related to that status. Residents include patients and clients. Residents shall also include

disabled persons under sixty (60) years of age residing in nursing homes, or clients of residential

and assisted living facilities and home care providers/home nursing care providers. and long-term

care units at the Eleanor Slater Hospital, including the Zambarano facility.

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

from performing her or his official duties.

(9) "Official duties" means work pursuant to the long-term care ombudsperson program

authorized by the federal Older Americans Act or the long-term care ombudsperson program

authorized by state law and carried out under the auspices and general direction of the state long-

term care ombudsperson.

(10) "Director" means the director of the department of elderly affairs.

(11) "Person" means any individual, trust, or estate, partnership, limited liability

corporation, corporation (including associations, joint stock companies, and insurance

companies), state, or political subdivision or instrumentality of a state.

(12) "Health oversight agency" means, for the purposes of this chapter, the department of

elderly affairs or the person or entity designates as the state’s long-term care ombudsperson by the

director of the department of elderly affairs, including the employees or agents of such person or

entity, when they are acting to fulfill the duties and responsibilities of the state's long-term care

ombudsperson program in which health information is necessary to oversee the health system and

in accordance with the U.S. Health Insurance Portability and Accountability Act (HIPAA) of

1996.

42-66.7-5. Powers and duties. -- The long term care ombudsperson shall:

(1) Identify, investigate, and resolve complaints that (a) are made by, or on behalf of,

residents; and (b) relate to action, inaction, or decisions, that may adversely effect the health,

safety, welfare, or rights of the residents (including the welfare and rights of the residents with

respect to the appointment and activities of guardians and representative payees); and health care

and financial powers of attorney.

(2) Receive all reports of incidents reportable to the department of health within twenty-

four (24) hours, or by the next business day of the occurrence, in cases of resident abuse, neglect,

exploitation, theft, sexual abuse, accidents involving fires, elopement and patient to patient

abuses;

(3) Receive all reports of thirty (30) day notices of resident discharge from long-term care

facilities;

~~(2)~~ (4) Provide referral services to assist residents in protecting their health, safety,

welfare and rights;

~~(3)~~ (5) Inform residents of their rights and advocate on their behalf to improve their

quality of life and live with dignity and respect;

~~(4)~~ (6) Formulate policies and procedures to identify, investigate, and resolve

complaints;

~~(5)~~ (7) Make appropriate referrals of investigations to other state agencies, ~~such as the~~,

including, but not limited to, the ~~department~~ departments of health, human services and ~~the~~

~~department of~~ attorney general;

~~(6)~~ (8) Offer assistance and training to public and private organizations on long term care

of elders and persons with disabilities;

~~(7)~~ (9) Represent the interests of residents of facilities before government agencies and

seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of

the residents including, but not limited to, rights with respect to the appointment or removal ~~and~~

~~activities~~ of guardians and representative payees~~; and~~ powers of attorney;

~~(8)~~ (10) Review and, if necessary, comment on any existing and proposed laws,

regulations, and other government policies and actions, that pertain to the rights and well-being of

residents of facilities.

42-66.7-7. Access to records, facility, resident. -- (a) In the course of an investigation,

the long term care ombudsperson shall:

(1) Make the necessary inquiries and obtain information as is deemed necessary;

(2) Have access to facilities and residents; and

(3) Enter facilities and, after notifying the person in charge, inspect any books, files,

medical records, or other records that pertain to the resident.

(b) In the ordinary course of the long term care ombudsperson's duties, the long term

care ombudsperson shall have access to residents of a facility to:

(1) Visit, talk with, make personal, social, and other appropriate services available;

(2) Inform them of their rights and entitlements and corresponding obligations under

federal and state law by distribution of educational materials, discussion in groups, or discussion

with individual residents and their families; and

(3) Engage in other methods of assisting, advising, and representing residents to extend

to them the full enjoyment of their rights.

agency.

(d) Notwithstanding any other provision of law, a health oversight agency, and its

employees and agents, shall comply with all state and federal confidentiality laws, including, but

not limited to, chapter 37.3 of title 5 (Confidentiality of Health Care Communications and

Information Act) and specifically subsection 5-37.3-4(c), which requires limitation on the

distribution of information which is the subject of this chapter on a "need to know" basis, and

section 40.1-5-26.

SECTION 2. Sections 23-17.8-1 and 23-17.8-2 of the General Laws in Chapter 23-17.8

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

23-17.8-1. 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.

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

section. "Health care facility" means any hospital ~~or nursing~~ or facility which provides long-term

health care ~~facility~~ 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 section 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.

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

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

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

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

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

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

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

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

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

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

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

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

of the department of mental health, retardation and hospitals or his or her designee for those

incidents involving community residences for people who are mentally retarded or persons with

developmental disabilities. The report shall contain:

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

phone number of the person reporting;

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

the abuse, mistreatment, or neglect;

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

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

they were made;

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

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

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

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

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

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

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

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

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

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

(3) business days with a written report.

SECTION 3. This act shall take effect upon passage.

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LC03347

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