Bill Text: NJ S599 | 2012-2013 | Regular Session | Introduced
Bill Title: "Tara's Law"; provides protections for individuals with developmental disabilities residing in community care residences and for investigations of abuse of individuals with developmental disabilities.
Spectrum: Moderate Partisan Bill (Democrat 10-3)
Status: (Passed) 2012-12-03 - Approved P.L.2012, c.69. [S599 Detail]
Download: New_Jersey-2012-S599-Introduced.html
STATE OF NEW JERSEY
215th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION
Sponsored by:
Senator JENNIFER BECK
District 11 (Monmouth)
Senator STEPHEN M. SWEENEY
District 3 (Cumberland, Gloucester and Salem)
Co-Sponsored by:
Senators Gordon, Madden and Buono
SYNOPSIS
"Tara's Law"; provides protections for individuals with developmental disabilities residing in community care residences and for investigations of abuse of individuals with developmental disabilities.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning individuals with developmental disabilities, designated as "Tara's Law," supplementing chapter 6D of Title 30 of the Revised Statutes, and amending various parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) The Legislature finds and declares that:
a. There are more than 600 community care residences in the State in which an adult or family secures a license from the Department of Human Services to provide care or training, or both, to up to four individuals with developmental disabilities;
b. For protection of the approximately 1,200 individuals with developmental disabilities residing in these community care residences, there needs to be an increase in the oversight of the persons licensed to operate community care residences, the case managers who are required to conduct monthly visits of these residences, and the day programs that individuals with developmental disabilities are scheduled to, but may not actually, attend;
c. It is also important to improve communications with parents and guardians of individuals with developmental disabilities residing in community care residences so that parents and guardians know whether their child or ward is receiving good care, attending scheduled day programs, and following the individualized habilitation plan developed for their child or ward;
d. Currently an individual with a developmental disability residing in a community care residence is required to have annual medical examinations; for the protection of an individual who may be suffering injury inflicted by the licensee of the community care residence, the examining physician should be required to take protective custody of the individual and report such action to the Department of Human Services;
e. Ensuring that investigators have access to communications concerning allegations of abuse, neglect, or exploitation of an individual with a disability, and that investigative reports examine the role of those overseeing the persons providing care to individuals with developmental disabilities would provide needed information for any civil or criminal proceeding that may follow an allegation of abuse, neglect, or exploitation; and
f. It is the policy of this State to: ensure that there is sufficient oversight of community care residences and day programs attended by individuals with developmental disabilities residing in community care residences; protect these individuals from injury that may be inflicted by the very persons charged with providing them with care; and safeguard and report information that may be important for a civil or criminal proceeding that may follow an allegation of abuse, neglect, or exploitation of an individual with a developmental disability residing in a community setting.
2. (New section) As used in this act:
"Abuse" means wrongfully inflicting or allowing to be inflicted physical abuse, sexual abuse, or verbal or psychological abuse or mistreatment by a licensee upon an individual with a developmental disability.
"Alternate" means a person 18 years of age or older who assumes the responsibility of a licensee when the licensee is absent from a community care residence.
"Commissioner" means the Commissioner of Human Services.
"Community care residence" or "residence" means a private home or apartment in which an adult or family is licensed by and contracts with the department to provide an individual with a developmental disability with care or training, or both.
"Department" means the Department of Human Services.
"Developmental disability" means developmental disability as defined in section 3 of P.L.1977, c.82 (C.30:6D-3).
"Division" means the Division of Developmental Disabilities in the Department of Human Services.
"Exploitation" means the act or process of a licensee using an individual with a developmental disability or his resources for another person's profit or advantage.
"Intimate parts" means the following body parts of a person: sexual organs, genital area, anal area, inner thigh, groin, buttock, or breast.
"Lewdness" means the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of a licensee or an individual with a developmental disability, or any flagrantly lewd and offensive act which the licensee knows or reasonably expects is likely to be observed by an individual with a developmental disability.
"Licensee" means one or more persons 18 years of age or older who are named on the license issued by the department to operate a community care residence and have overall responsibility for an individual with a developmental disability.
"Negative licensing action" means an action taken which imposes a restriction on a licensee and may include suspension of admissions, issuance of a provisional license, reduction in the licensed capacity, non-renewal of license, suspension of the license, or revocation of the license.
"Neglect" shall consist of any of the following acts by a licensee on an individual with a developmental disability: willfully failing to provide proper and sufficient food, clothing, maintenance, medical care, or a clean and proper home; or failure to do or permit to be done any act necessary for the well-being of an individual with a developmental disability.
"Office of Licensing" or "office" means the licensing unit of the Department of Human Services for programs in the Division of Developmental Disabilities.
"Physical abuse" means a physical act directed at an individual with a developmental disability by a licensee of a type that causes one or more of the following: pain, injury, anguish, or suffering. Such acts include, but are not limited to, the individual with a developmental disability being kicked, pinched, bitten, punched, slapped, hit, pushed, dragged, or struck with a thrown or held object.
"Sexual abuse" means an act or attempted act of lewdness, sexual contact, or sexual penetration between a licensee and an individual with a developmental disability. Any form of sexual contact or activity between a licensee and an individual with a developmental disability, absent marriage, domestic partnership, or civil union, is sexual abuse, regardless of whether the individual with a developmental disability gives consent or the licensee is on or off duty.
"Sexual contact" means an intentional touching by a licensee or individual with a developmental disability, either directly or through clothing, of the intimate parts of the individual with a developmental disability or the licensee for the purpose of sexually arousing or sexually gratifying the licensee. Sexual contact of the licensee with himself must be in view of the individual with a developmental disability whom the licensee knows to be present.
"Sexual penetration" means vaginal intercourse, cunnilingus, fellatio, or anal intercourse between a licensee and an individual with a developmental disability or insertion of the hand, finger, or object into the anus or vagina, either by the licensee or upon the licensee's instruction.
"Special Response Unit" means the unit in the department that is charged with investigation of serious unusual incidents, as defined by applicable rules and regulations of the department, and is responsible for the investigation of a report of abuse, neglect, or exploitation in a community care residence.
"Verbal or psychological abuse or mistreatment" means any verbal or non-verbal act or omission by a licensee that inflicts one or more of the following: emotional harm; mental distress; or invocation of fear, humiliation, intimidation, or degradation to an individual with a developmental disability. Examples include, but are not limited to: bullying; ignoring need; verbal assault; use of racial or ethnic slurs; or intimidating gestures, such as shaking a fist at an individual with a developmental disability.
3. (New section) A community care residence licensed by the Department of Human Services pursuant to N.J.A.C. 10:44B-1.1 et seq. shall be subject to the following provisions:
a. If, as a result of an annual inspection of a community care residence by the Office of Licensing that allows for inquiry into the facilities, records, equipment, sanitary conditions, accommodations, and management of an individual with a developmental disability as required by N.J.A.C.10:44B-1.1 et seq, a licensee is required to provide a plan of correction and such plan has not been successfully implemented, as determined by the office, within 30 days of the date that the licensee submitted the plan to the office, an individual with a developmental disability residing in that residence shall be removed from the residence; and
b. If the health, safety, or well-being of an individual with a developmental disability residing in a community care residence is threatened because of a licensee's non-compliance with the standards adopted by regulation of the department, the individual with a developmental disability shall be removed from the residence, and the licensee shall be subject to negative licensing action by the Office of Licensing;
4. (New section) The Department of Human Services shall require a licensee, as a condition of maintaining a license to operate a community care residence, to comply with the following provisions:
a. (1) A licensee shall, biennially, undergo an examination by a physician to ascertain whether the licensee is physically and mentally capable of fulfilling the job duties of a licensee, as specified on the form listing a licensee's job duties prepared by the department pursuant to section 5 of this act and completed by the physician pursuant to this subsection. Upon conclusion of the examination, the physician shall provide the licensee with a statement as to whether the licensee is capable of fulfilling the duties of a licensee, and complete and attach the form on which the physician shall indicate, for each duty, whether the licensee is capable of fulfilling the duty.
(2) Upon receipt of the physician statement and completed form, a licensee shall provide the statement and form to the department. If a licensee fails to provide the statement and form, the commissioner shall have the authority to: stop any payments to the licensee; seek recovery of any payments to the licensee from the date that the statement and form were due; and not resume payment until such time as the licensee submits the statement and form.
(3) If, after undergoing the examination, a licensee is unable to provide a physician's statement that the licensee is capable of fulfilling the job duties of a licensee and the attached form completed by the physician, the licensing agency shall take negative licensing action against the licensee.
b. In the event that an individual with a developmental disability is not capable of managing his own funds, a licensee who is responsible for making purchases and disbursements on the individual's behalf shall not make a purchase or disbursement unless that purchase or disbursement reflects the specific needs of the individual with a developmental disability. A receipt or record, as applicable, of a purchase or disbursement pursuant to this subsection shall be submitted monthly to the Office of Auditing in the department.
c. A licensee shall annually attend a continuing education program conducted or approved by the department, as provided for in section 5 of this act;
d. A licensee shall annually take a two-week vacation from providing services to an individual with a developmental disability residing in a community care residence, during which time an alternate shall provide care or training, or both, to the individual with a developmental disability.
5. (New section) a. The department may issue a provisional license to operate a community care residence, not to exceed a three-month period, during which time such licensee shall demonstrate the ability to comply with the provisions of this act and the licensing standards adopted by regulation of the department for operation of a community care residence.
b. The department shall conduct, or approve another entity to conduct, a continuing education program for a licensee.
c. The department shall prepare a form listing the job duties of a licensee and, biennially, distribute the form to a licensee for completion by the licensee's physician in accordance the provisions of section 4 of this act. The form shall contain a check list on which the physician shall indicate a licensee's ability to perform each duty.
6. (New section) a. A case manager conducting a visit of an individual with a developmental disability residing in a community care residence, in accordance with section 8 of P.L.1983, c.524 (C.30:6D-20), shall, upon completion of the visit, provide a written report to the case manager's supervisor and to the parent or guardian, as appropriate, of the individual with a developmental disability. The report, which shall be sent electronically to the case manager's supervisor and, if practicable, electronically to the parent or guardian, shall include information pertaining to the care and safety of the individual with a developmental disability, including, but not limited to, personal hygiene and grooming, nutritional and clothing needs, overall sanitary and living conditions of the community care residence, and the general well-being of the individual with a developmental disability.
b. The case manager shall also review the records required to be maintained in a community care residence pursuant to N.J.A.C. 10:44B-1.1 et seq., on a monthly basis. The case manager's supervisor shall review the records when the supervisor performs the visit required by section 7 of this act. The case manager or supervisor, or both, as applicable, shall provide written documentation that the records were reviewed and include that documentation with the records maintained pursuant to N.J.A.C. 10:44B-1.1 et seq.
7. (New section) The supervisor of a case manager shall biennially visit 100% of the individuals with developmental disabilities who are assigned to the case manager and residing in a community care residence, with 50% of the visits conducted in each of the first and second years.
a. The visit shall be conducted by the supervisor together with a case manager who is unaffiliated with and unfamiliar to the assigned case manager. The supervisor and unaffiliated case manager shall prepare and provide to the parent or guardian of the individual with a disability the written report pertaining to the care and safety of the individual with a developmental disability pursuant to section 6 of this act.
b. The supervisor shall conduct a review of:
(1) a member of the household of a community care residence who is 18 years of age or older to determine whether the presence of the person 18 years of age or older in the household changes the character of the community care residence such that it is no longer a positive environment for care or training, or both, of an individual with a developmental disability;
(2) a licensee who is 65 years of age or older to determine whether the licensee is capable of continuing to provide care or training, or both, to an individual with a developmental disability; and
(3) a licensee who experiences a life-changing event which causes a changed physical or mental condition of the licensee to determine whether the licensee is able to provide care or training, or both, to an individual with a developmental disability.
c. The supervisor shall prepare a written report of a review conducted pursuant to subsection b. of this section and the report shall be made part of the records maintained in a community care residence pursuant to N.J.A.C. 10:44B-1.1 et seq.
d. If, based on the supervisor's and unaffiliated case manager's review and input from family members or the guardian of the individual with a developmental disability residing in the community care residence, the supervisor determines that the individual would benefit from a change in the individual's case manager, the supervisor shall assign a different case manager to the individual.
e. If, as a result of a visit or review conducted pursuant to this section, a supervisor determines that a licensee is not capable of providing care or training, or both, to an individual with a developmental disability, the supervisor shall so advise the commissioner or the commissioner's designee who shall instruct the licensing agency to take negative licensing action. In such a case, the supervisor shall provide a copy of the written report prepared pursuant to subsection a. of this section and any written report prepared pursuant to subsection c. of this section to the commissioner or the commissioner's designee.
8. (New section) Before taking negative licensing action pursuant to this act, the department shall give notice to a licensee personally or by mail to the last known address of the licensee with return receipt requested. The notice shall afford the licensee the opportunity to be heard and to contest the department's action. The hearing shall be conducted in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
9. (New section) a. A case manager or case manager's supervisor having reasonable cause to believe that an individual with a developmental disability residing in a community care residence has been subjected to abuse, neglect, or exploitation by a licensee shall report the same immediately to the department by telephone or otherwise. Such report, where possible, shall contain the name and address of the individual with a developmental disability and the licensee responsible for the care or training, or both, of the individual with a developmental disability, and the guardian, or other person having custody and control of the individual and, if known, the condition of the individual with a developmental disability, the nature and possible extent of the individual's injuries, maltreatment, abuse, neglect, or exploitation, including any evidence of previous injuries, maltreatment, abuse, neglect, or exploitation, and any other information that the case manager or case manager's supervisor believes may be helpful with respect to the injuries, maltreatment, abuse, neglect, or exploitation of the individual with a developmental disability and the identity of the alleged offender.
b. The commissioner shall maintain a unit within the department to receive and prioritize such reports, initiate appropriate responses through timely and appropriate investigative activities, alert appropriate staff, and ensure that findings are reported in a uniform and timely manner.
c. A case manager or case manager's supervisor who fails to report an act of abuse, neglect, or exploitation of an individual with a developmental disability while having reasonable cause to believe that such an act has been committed, shall be guilty of a crime of the third degree.
d. In addition to any penalty imposed pursuant to this section, a person convicted under this section shall be subject to a surcharge in the amount of $350 payable to the Treasurer of the State of New Jersey for use by the department to fund the provision of food and care to individuals with developmental disabilities residing in community care residences.
e. A case manager or case manager's supervisor who is charged with failure to report an act of abuse, neglect, or exploitation of an individual with a developmental disability while having reasonable cause to believe that such an act has been committed, shall be temporarily reassigned to duties that do not involve contact with individuals with developmental disabilities or other vulnerable populations and shall be terminated from employment if convicted.
In the case of a case manager or case manager's supervisor who is employed by the department, such a case manager or supervisor shall retain any available right of review by the Civil Service Commission.
10. Section 4 of P.L.2010, c.5 (C.30:6D-76) is amended to read as follows:
4. a. Upon receipt of a report pursuant to section 3 of [this act] P.L.2010, c.5 (C.30:6D-75) or section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill), the department shall:
(1) designate an entity, as established by the commissioner, that shall immediately take such action as shall be necessary to ensure the safety of the individual with a developmental disability and to that end may request appropriate assistance from local and State law enforcement officials or contact Adult Protective Services to provide assistance in accordance with the provisions of P.L.1993, c.249 (C.52:27D-406 et seq.); and
(2) require the Critical Incident Management Unit, the Special Response Unit, or another unit in the department other than one in the division, to review the report and determine whether the report warrants an investigation.
b. The commissioner shall adopt rules and regulations necessary to provide for an investigation of a reported incident and subsequent substantiation or non-substantiation of an allegation of abuse, neglect, or exploitation of an individual with a developmental disability by a caregiver, by maintaining a Special Response Unit to investigate serious unusual incidents, as defined by applicable rules and regulations, in facilities or community programs licensed, contracted, or regulated by the department.
Upon the initiation of an investigation, the department shall: (1) ensure that any communication concerning the alleged abuse, neglect, or exploitation of an individual with a developmental disability between a caregiver, case manager of the caregiver, the case manager's supervisor, or a person at the appropriate Regional Office of the Division of Developmental Disabilities is identified, safeguarded from loss or destruction, and maintained in a secure location; and (2) contact the Office of the Attorney General which shall determine whether to participate in the investigation.
During its investigation of an allegation of abuse, neglect, or exploitation of an individual with a developmental disability by a caregiver, the Special Response Unit shall make a good faith effort to notify the caregiver of the possibility of the caregiver's inclusion on the registry, and give the caregiver an opportunity to respond to the department concerning the allegation.
c. The Special Response Unit shall issue a written report of the investigation that includes the conclusions of the unit, the rationale for the conclusion, and a detailed summary of any communication secured pursuant to subsection b. of this section. The report also shall include an assessment of the role of any case manager of a caregiver or the case manager's supervisor, if applicable, in the allegation of abuse, neglect, or exploitation, and a recommendation about whether any civil or criminal action should be brought against the case manager or supervisor. The report shall be made part of the record for review in any civil or criminal proceeding that may ensue.
A written summary of the conclusions of the investigation shall be provided to the parent or guardian of the individual with a developmental disability who is the subject of the alleged abuse, neglect, or exploitation.
[c.] d. The Special Response Unit, the department, or other investigating entity shall forward to the commissioner, or his designee, a substantiated or unsubstantiated incident of abuse, neglect, or exploitation of an individual with a developmental disability [for inclusion of an offending caregiver on the central registry]. Within 14 days of receipt of the substantiated or unsubstantiated incident of abuse, neglect, or exploitation, the commissioner or the commissioner's designee shall review the incident and, if appropriate, proceed with inclusion of an offending caregiver on the central registry.
(cf: P.L.2010, c.5 , s.4)
11. Section 6 of P.L.2010, c.5 (C.30:6D-78) is amended to read as follows:
6. All records of a report made pursuant to [this act] section 3 of P.L.2010, c.5 (C.30:6D-75) or section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill), all information obtained by the department in investigating such reports, and all reports of findings forwarded to the central registry pursuant to [this act] P.L.2010, c.5 or P.L. , c. (pending before the Legislature as this bill) shall be kept confidential and may be disclosed only under circumstances expressly authorized by rules and regulations promulgated by the commissioner. The department shall only disclose information that is relevant to the purpose for which the information is required; except that the department shall not disclose information which would likely endanger the life, safety, or physical or emotional well-being of an individual with a developmental disability or the life or safety of any other person, or which may compromise the integrity of a department investigation, civil or criminal investigation, or judicial proceeding. If the department denies access to specific information on this basis, the requesting entity may seek disclosure through the Superior Court. Nothing in [this act] P.L.2010, c.5 or P.L. , c. (pending before the Legislature as this bill) shall be construed to permit the disclosure of any information deemed confidential by federal or State law.
(cf: P.L.2010, c.5, s.6)
12. Section 8 of P.L.2010, c.5 (C.30:6D-80) is amended to read as follows:
8. A person acting pursuant to [this act] P.L.2010, c.5 (C.30:6D-73 et seq.) or P.L. , c. (C. ) (pending before the Legislature as this bill) in the making of a report under [this act] P.L.2010, c.5 or P.L. , c. (pending before the Legislature as this bill) shall have immunity from any civil or criminal liability that might otherwise be incurred or imposed. Such a person shall have the same immunity with respect to testimony given in any judicial proceeding resulting from the report. A person who reports or causes to report in good faith an allegation of abuse, neglect, or exploitation pursuant to [this act] P.L.2010, c.5 or P.L. , c. (pending before the Legislature as this bill) and as a result thereof is discharged from employment or in any manner discriminated against with respect to compensation, hire, tenure, or terms, conditions or privileges of employment, may file a cause of action for appropriate relief in the Superior Court in the county in which the discharge or alleged discrimination occurred or in the county of the person's primary residence. If the court finds that the person was discharged or discriminated against as a result of the person's reporting an allegation of abuse, neglect, or exploitation pursuant to [this act] P.L.2010, c.5 or P.L. , c. (pending before the Legislature as this bill), the court may grant reinstatement of employment with back pay or other legal or equitable relief.
(cf: P.L.2010, c.5 , s.8)
13. (New section) The Special Response Unit shall compile data about any investigations conducted as a result of a report made pursuant to section 3 of P.L.2010, c.5 (C.30:6D-75) or section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill) concerning abuse, neglect, or exploitation of an individual with a developmental disability residing in a community care residence, and shall issue an annual report as provided in this section. The report, which shall be available on the official website of the department and contain non-identifying information, shall, at a minimum, include:
a. The number of individuals with developmental disabilities residing in community care residences who were the subject of an allegation of abuse, neglect, or exploitation, and the number of substantiated allegations;
b. The number of deaths, if any, of individuals with developmental disabilities who were residing in community care residences and were the subject of a report of abuse, neglect, or exploitation, and the cause of death;
c. The number of case managers or case managers' supervisors who have been reassigned or terminated, or both, as a result of an investigation of abuse, neglect, or exploitation of an individual with a developmental disability residing in a community care residence; and
d. The number of case managers or case managers' supervisors against whom a civil or criminal action has been brought as a result of an allegation of abuse, neglect, or exploitation of an individual with a developmental disability residing in a community care residence.
14. (New section) a. A provider of a day program for individuals with developmental disabilities shall submit to the division a copy of its monthly report of individuals with developmental disabilities who reside in community care residences and attend a day program sponsored by the provider. The report shall be submitted no later than 14 days after the end of the month.
b. A provider of a day program for individuals with developmental disabilities shall not seek reimbursement from the department for an individual with a developmental disability who resides in a community care residence and is scheduled to attend a day program sponsored by the provider, but has not attended the program for 30 consecutive days. A provider who seeks reimbursement in violation of this subsection shall refund a payment received from the department on behalf of that individual, and shall be subject to a penalty of $1,000 per day, per individual listed on the monthly attendance report as being in attendance, but who was not in attendance. The penalty shall be sued for and collected in a summary proceeding by the commissioner pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
c. If an individual with a developmental disability who resides in a community care residence and is scheduled to attend a day program is absent from the program for 30 consecutive days, the provider of the day program shall, no later than 14 days after the end of the 30 days, notify the appropriate Regional Office Administrator.
d. The division shall, no later than 28 days after the end of a month, provide a copy of the monthly report submitted by a provider pursuant to this section to:
(1) the appropriate Regional Office Administrator; and
(2) the supervisor of a case manager assigned to an individual with a developmental disability who resides in a community care residence and is scheduled to attend the day program.
e. The division shall provide:
(1) a parent or guardian of an individual with a disability who resides in a community care residence and is scheduled to attend a day program, with information pertaining to the individual's monthly attendance at the day program. Such a report shall be provided no later than 28 days after the end of the month; and
(2) a random sampling of the monthly reports to the Special Response Unit, which shall audit attendance of individuals with developmental disabilities who reside in community care residences and are scheduled to attend a day program.
f. A Regional Office Administrator shall bi-annually conduct an on-site audit of attendance of individuals with developmental disabilities who reside in community care residences and are scheduled to attend a day program in the office's region.
15. (New section) a. A physician examining or treating an individual with a developmental disability residing in a community care residence or the chief executive officer, or his designee, of a hospital or similar institution to which the individual has been brought for care or treatment, or both, is empowered to take the individual into protective custody when the individual has suffered serious physical injury or injuries, or the individual's condition constitutes a life-threatening emergency, as defined in section 2 of P.L.2003, c.191 (C.30:6D-5.2), and the most probable inference from the medical and factual information supplied, is that the injury or condition was inflicted upon the individual by another person by other than accidental means, and the person suspected of inflicting, or permitting to be inflicted, the injury upon the individual, is a licensee or alternate of a community care residence where the individual resides and to whom the individual would normally be returned.
b. The physician or the chief executive officer, or his designee, of a hospital or similar institution taking an individual with a disability into protective custody shall immediately report the action and the condition of the individual with a developmental disability to the department by calling its emergency telephone service.
c. A physician or chief executive officer, or his designee, who fails to comply with the provisions of this section shall be subject to a penalty of $500. The penalty shall be sued for and collected in a summary proceeding by the commissioner pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
16. (New section) a. An agency or organization that causes a written, individualized habilitation plan to be developed pursuant to section 10 of P.L.1977, c.82 (C.30:6D-10) on or after the effective date of this act for an individual with a developmental disability residing in a community care residence shall not include the social security number of the individual with a developmental disability on the plan. In the case of an individualized habilitation plan developed prior to the effective date of this act, the social security number of the individual with a developmental disability residing in a community care residence shall be removed from the plan within 60 days of the effective date of this act.
b. An agency or organization that violates the provisions of subsection a. of this section shall be subject to a penalty of $250 for the first offense and $500 for each subsequent offense. The penalty shall be sued for and collected in a summary proceeding by the commissioner pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
c. In addition to the requirements for the development, revision, and review of an individual habilitation plan pursuant to sections 10 and 12 of P.L.1977, c.82 (C.30:6D-10 and C.30:6D-12), a plan developed, revised, or reviewed for an individual with a developmental disability residing in a community care residence shall be provided to the licensee of the community care residence, the case manager of the individual with a developmental disability residing in the community care residence, and the case manager's supervisor. If a parent or guardian of the individual is unable to attend the development, revision, or review of the plan, a copy of such plan shall be provided to the parent or guardian of the individual, and the parent or guardian, as appropriate, shall sign and return a copy of the plan to the agency or organization responsible for the development, revision, or review of the plan.
17. Section 2 of P.L.2003, c.191 (C.30:6D-5.2) is amended to read as follows:
2. As used in this act:
"Commissioner" means the Commissioner of Human Services.
"Department" means the Department of Human Services.
"Facility for persons with developmental disabilities" means a facility for persons with developmental disabilities as defined in section 3 of P.L.1977, c.82 (C.30:6D-3).
"Facility for persons with traumatic brain injury" means a facility for persons with traumatic brain injury that is operated by, or under contract with, the department.
"Life-threatening emergency" means a situation in which a prudent person could reasonably believe that immediate intervention is necessary to protect the life of a person receiving services at a facility for persons with developmental disabilities or a facility for persons with traumatic brain injury or from a public or private agency, or to protect the lives of other persons at the facility or agency, from an immediate threat or actual occurrence of a potentially fatal injury, impairment to bodily functions or dysfunction of a bodily organ or part. "Life-threatening emergency" includes any change in a person's physical or mental condition that significantly weakens the person so that the person's health condition is precarious and shall include, but not be limited to, dramatic weight loss, poor hygiene, physical bruises, and sores dominating parts of the body.
"Public or private agency" means an entity under contract with, licensed by or working in collaboration with the department to provide services for persons with developmental disabilities or traumatic brain injury.
(cf: P.L.2003, c.191, s.2)
18. The Commissioner of Human Services shall adopt rules and regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), to carry out the provisions of this act.
19. This act shall take effect on the 180th day after the date of enactment, but the Commissioner of Human Services may take such anticipatory administrative action in advance thereof as shall be necessary for the implementation of this act.
STATEMENT
This bill, which is designated as "Tara's Law," provides for oversight of community care residences, which are private homes or apartments in which an adult or family is licensed by and contracts with the Department of Human Services (DHS) to provide up to four individuals with developmental disabilities with care or training, or both.
The bill includes provisions to oversee persons who are licensed to operate community care residences (licensees), the case managers of the individuals with developmental disabilities who reside in community care residences, and the day programs which these individuals with developmental disabilities may attend. In addition, the bill authorizes physicians and hospitals to take into protective custody an individual with a developmental disability who otherwise would be returned to a licensee suspected of causing injury to the individual, and report such action to DHS. The bill also provides for safeguarding and reporting information which may be necessary for any civil or criminal proceedings which may follow an allegation of abuse, neglect, or exploitation by a caregiver of an individual with a developmental disability.
Specifically, the bill provides as follows:
Oversight of community care residences
· A community care residence licensed by DHS shall be subject to the following provisions:
-- If, as a result of an annual inspection of a community care residence by DHS, a licensee was required to provide a plan of correction and such plan has not been successfully implemented, within 30 days of the date that the licensee submitted the plan to the office, an individual with a developmental disability residing in that residence shall be removed from the residence; and
-- If the health, safety, or well-being of an individual with a developmental disability is threatened because of a licensee's non-compliance with DHS standards for community care residences, the individual must be removed from the residence, and the licensee would be subject to negative licensing action (an action that imposes a restriction on a licensee and may include suspension of admissions, issuance of a provisional license, reduction in the licensed capacity or non-renewal, suspension, or revocation of the license).
· As a condition of maintaining a license to operate a community care residence, a licensee shall:
-- Undergo an examination every two years by a physician to ascertain whether the licensee is physically and mentally capable of fulfilling the job duties of a licensee. Upon conclusion of the examination, the physician would complete a form established by DHS and provide the licensee with a statement as to whether the licensee is capable of fulfilling the duties of a licensee. The licensee shall provide the statement and form to DHS, and if a licensee fails to do so, the Commissioner of Human Services may stop any payments, seek recovery of any payments to the licensee, and not resume payment until such time as the licensee submits the statement and form. If, after undergoing the examination, the licensee is unable to provide the form and statement that the licensee is capable of fulfilling the job duties of a licensee, DHS shall take negative licensing action against the licensee;
-- In the event an individual with a developmental disability is not capable of managing his own funds and the licensee is responsible for making purchases and disbursements on the individual's behalf, the licensee shall only make such purchases or disbursements that reflect the specific needs of the individual, and submit a receipt or record of a purchase or disbursement to DHS; and
-- Annually attend a continuing education program conducted or approved by DHS, and take an annual two-week vacation, during which time an alternate would provide the care or training, or both, to the individual with a developmental disability.
· DHS may issue a provisional license to operate a community care residence, but that provisional license may not exceed three months (current regulations allow for a six-month provisional license).
· DHS would conduct, or approve another entity to conduct, a continuing education program for licensees.
Case Managers and Supervisors
· Upon completion of a visit to an individual with a developmental disability residing in a community care residence, the case manager must provide a written report to the case manager's supervisor and the individual's parent or guardian, as appropriate. The report shall include information pertaining to the care and safety of the individual. The case manager must also review, on a monthly basis, the records required to be maintained in a community care residence. The case manager's supervisor also must review the records when the supervisor conducts a biennial visit, and the case manager or supervisor, or both, as applicable, must provide written documentation that the records were reviewed.
· Every two years, the supervisor of a case manager must visit all of the individuals residing in a community care residence who are assigned to the case manager. The visit would be conducted with a case manager who is unaffiliated with and unfamiliar to the assigned case manager. The supervisor and case manager shall prepare and provide to the individual's parent or guardian a written report pertaining to the care and safety of the individual. The supervisor shall determine whether the licensee is able to continue to provide care or training, or both, to an individual with a developmental disability if any of the following has occurred: there is a member of the household 18 years of age or older whose presence changes the character of the residence such that it is no longer a positive environment for an individual with a developmental disability; a licensee is 65 years of age or older; or a licensee has experienced a life-changing event which causes a changed physical or mental condition of the licensee.
· If, based on the supervisor's and unaffiliated case manager's review and input from family members or the guardian of the individual with a developmental disability residing in the community care residence, the supervisor determines that the individual would benefit from a change in the individual's case manager, the supervisor shall assign a different case manager to the individual.
· If a supervisor determines that a licensee is no longer capable of providing care or training, or both, the supervisor must advise the commissioner, who may initiate negative licensing action. Before taking negative licensing action, DHS must give notice to a licensee and afford the licensee the opportunity to be heard and to contest the action in an administrative hearing.
· A case manager or case manager's supervisor who has reasonable cause to believe that an individual with a developmental disability residing in a community care residence has been subjected to abuse, neglect, or exploitation by a licensee shall report the same immediately to DHS. A case manager or supervisor who fails to so report shall be guilty of a crime of the third degree (punishable by a term of imprisonment between three to five years, a fine not to exceed $15,000, or both), and a surcharge of $350, which amount will be used by DHS for food and care of individuals in community care residences. A case manager or supervisor who is charged with failure to report would be temporarily reassigned to duties that do not involve contact with individuals with developmental disabilities, and terminated from employment if convicted.
Investigations of Abuse, Neglect, or Exploitation by a Caregiver in Community Settings
The bill amends existing law to provide that upon receipt of a report of abuse, neglect, or exploitation by a caregiver, DHS shall require the Critical Incident Management Unit, the Special Response Unit (SRU), or another unit in DHS other than one in the Division of Developmental Disabilities, to review the report and determine whether the report warrants an investigation. In addition, DHS shall: (1) ensure that any communication concerning the alleged abuse, neglect, or exploitation is identified, safeguarded, and maintained in a secure location; and (2) contact the Attorney General, who shall determine whether to participate in the investigation. The bill specifies the information that shall be included in the report of the SRU. Within 14 days of receipt of a substantiated or unsubstantiated incident of abuse, neglect, or exploitation, the commissioner shall review the incident and, if appropriate, proceed with inclusion of an offending caregiver on the Central Registry of Offenders Against Individuals with Developmental Disabilities established under section 5 of P.L.2010, c.5 (C.30:6D-77).
The SRU is also required to compile data and issue an annual report, which shall be made available on the DHS website.
Oversight of Day Program Providers
A provider of a day program for individuals with developmental disabilities shall submit to the division a copy of its monthly report of individuals with developmental disabilities who reside in community care residences and attend a day program sponsored by the provider. The provider shall not seek reimbursement from DHS for an individual who has not attended the program for 30 consecutive days, and shall notify the appropriate Regional Office Administrator if an individual was absent for 30 consecutive days. The division shall provide a parent or guardian with information pertaining to the individual's monthly attendance at the day program.
Physicians and Protective Orders
A physician, who is examining or treating an individual with a developmental disability who resides in a community care residence, or the chief executive officer, or his designee, of a hospital or similar institution, may take the individual into protective custody when the individual has suffered serious physical injury, or the individual's condition constitutes a "life-threatening emergency," as defined in section 2 of P.L.2003, c.191 (C.30:6D-5.2), and the most probable inference from the medical and factual information supplied is that the injury or condition was inflicted upon the individual by another person by other than accidental means, and the person suspected of inflicting, or permitting to be inflicted, the injury upon the individual is a licensee or alternate of a community care residence where the individual resides and to whom the individual would normally be returned. The physician or the chief executive officer shall immediately report the action and the condition of the individual to DHS by calling the department's emergency telephone service.
Individualized Habilitation Plans (IHPs)
The bill prohibits the use of social security numbers on IHPs for individuals residing in community care residences, and establishes a penalty of $250 for the first offense and $500 for each subsequent offense for violating this prohibition. A copy of the IHP must be provided to the licensee of a community care residence, the case manager of the individual, and the case manager's supervisor. If a parent or guardian is unable to attend the development, revision, or review of an IHP, a copy of the IHP must be provided to the parent or guardian who would sign and return a copy to the agency or organization responsible for its development, revision, or review.
The bill takes effect 180 days after enactment.
The provisions of this bill are intended to help prevent a recurrence of a tragedy similar to that involving Tara O'Leary. The bill is designated "Tara's Law" in her memory. Tara O'Leary, a 28-year old woman with developmental disabilities who had been residing in a licensed community care residence, lost a dangerous amount of weight, was relocated to a developmental center, and was subsequently admitted to a hospital weighing 48 pounds and suffering from dehydration, malnutrition, and bedsores. When her overall condition did not improve despite the use of a feeding tube to increase her weight by more than 20 pounds, she was disconnected from life support and died. Criminal charges have been brought against the licensee of the community care residence and Tara's case manager.
