New Jersey-2020-S3805-Introduced

An Act concerning the reporting and investigation of injuries occurring at psychiatric hospitals, amending and supplementing P.L.2009, c.161, and amending P.L.1997, c.70.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.2009, c.161 (C.30:4-3.23) is amended to read as follows:

1. As used in this act:

"Commissioner" means the Commissioner of [Human Services] Health.

"Department" means the Department of [Human Services] Health.

"Employee" means a person employed by the State to work at a State psychiatric hospital, or a person employed by a private entity under contract with the State to provide contracted services at a State psychiatric hospital.

"Major injury" means an injury that requires treatment that can only be performed at a general or special hospital licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.), and which may additionally include admission to the hospital for additional treatment or observation.

"Minor injury" means an injury that does not constitute a major injury or a moderate injury, and which can be treated with basic first aid, and without the assistance of a health care professional.

"Moderate injury" means an injury that does not constitute a major injury, but which requires treatment, beyond basic first aid, that can only be performed by a health care professional at the office of a physician, at a hospital emergency room, or by a physician at a State psychiatric hospital.

"Physical assault" means an act upon a person that results in a major [or], moderate, or minor injury, and that occurs at a State psychiatric hospital.

"State psychiatric hospital" means a psychiatric hospital listed in R.S.30:1-7.

"Unexpected death" means a death that was not medically anticipated, including, but not limited to suicide, homicide, or unanticipated death due to an unforeseen medical complication or other circumstance.

(cf: P.L.2009, c.161, s.1)

2. (New section) a. A State psychiatric hospital shall provide notification, in accordance with the provisions of subsection b. of this section, of any major injury, moderate injury, or minor injury that is suffered by a patient, an employee, or any other person at the psychiatric hospital.

b. Except as otherwise provided by subsection c. of this section, the notification required under this section shall be provided:

(1) to the commissioner, and, in the case of an injured patient, to the guardian of the injured patient, or, if there is no guardian, to a family member of the patient who has requested such notification, unless the patient has expressly prohibited the family member from receiving such notification;

(2) as soon as possible, but no later than two hours after the occurrence of the injury, except when an extraordinary circumstance prevents such notification, in which case, notification shall be provided as soon as possible, but no later than eight hours after the occurrence of the injury, and the psychiatric hospital shall prepare a written, detailed explanation of the extraordinary circumstance causing the delay, which explanation shall be submitted to the persons identified in paragraph (1) of this subsection, within 14 days of the incident; and

(3) through in-person means, or by telephone. Electronic means may be used to engage in follow-up communications following the initial notification.

c. Notwithstanding the provisions of this section to the contrary, notice of injury shall not be required to be submitted to the guardian or family member of an injured patient if that guardian or family member has expressly stated, in a written document filed with the psychiatric hospital, that the person does not want to receive notification of injury pursuant to this section.

3. (New section) Within 48 hours after receipt of a report of an incident involving major injury or moderate injury of a patient, an employee, or any other person at a psychiatric hospital, the commissioner shall send a staff member of the department, who is not an employee of a State psychiatric hospital, to the location of the reported incident, in order to verify the severity of the incident, identify the factors that led to the injury, and determine whether the injury has resulted from professional misconduct or, in the case of a patient injury, has resulted from the abuse of the patient. If the investigation indicates that the injury resulted from patient abuse or professional misconduct, the commissioner shall take appropriate action, as provided by subsection d. or e. of section 4 of P.L.1997, c.70 (C.30:4-3.18), as applicable.

4. (New section) a. The owner or operator of a psychiatric hospital that fails to comply with the reporting requirements of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), shall be liable to pay a civil penalty of not more than $5,000; and may also be required to pay an additional administrative penalty, in an amount determined by the commissioner to be appropriate.

b. The penalties imposed pursuant to this section shall be collected by the commissioner in a summary proceeding undertaken in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court and municipal court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with this section.

c. Each violation of P.L. , c. (C. ) (pending before the Legislature as this bill) shall constitute a separate offense.

5. Section 2 of P.L.2009, c.161 (C.30:4-3.24) is amended to read as follows:

2. a. The department shall establish a reporting system for compiling information about the physical assaults, injuries, and unexpected deaths that occur at State psychiatric hospitals, and shall summarize the information in a report [which] that, at a minimum, [shall] separately [identify] identifies, for each State psychiatric hospital:

(1) the number of major [and], moderate, and minor injuries occurring as a result of interactions among patients;

(2) the number of major [and], moderate, and minor injuries occurring as a result of interactions between patients and [staff members] employees of the hospital; [and]

(3) the number of major, moderate, and minor injuries occurring as a result of interactions between patients and other persons, including visitors, who are neither patients nor employees of the hospital but are present therein;

(4) the number of major, moderate, and minor injuries occurring as a result of interactions between employees and other persons, including visitors, who are neither patients nor employees of the hospital but are present therein; and

(5) the number of unexpected deaths.

b. The report prepared pursuant to this section shall not contain any identifying information about a patient [or staff member] , employee, visitor, or any other person.

c. The report shall be considered a public or government record under P.L.1963, c.73 (C.47:1A-1 et seq.) [or] and P.L.2001, c.404 (C.47:1A-5 et al.), and shall be posted on the official website of the department and updated quarterly.

(cf: P.L.2009, c.161, s.2)

6. Section 4 of P.L.2009, c.161 (C.30:4-3.26) is amended to read as follows:

4. Pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), the commissioner shall adopt rules and regulations necessary to effectuate the purposes of [this act] P.L.2009, c.161 (C.30:4-3.23 et seq.), and P.L. , c. (C. ) (pending before the Legislature as this bill).

(cf: P.L.2009, c.161, s.4)

7. Section 1 of P.L.1997, c.70 (C.30:4-3.15) is amended to read as follows:

1. [For the purposes of this act] As used in P.L.1997, c.70 (C.30:4-3.15 et seq.):

"Clinical treatment staff" means a physician, psychiatrist, psychologist, physical therapist, or social worker licensed pursuant to Title 45 of the Revised Statutes[,]; an occupational, recreation, art, or music therapist; or a substance abuse counselor.

"Commissioner" means the Commissioner of Health.

"Department" means the Department of Health.

"Nursing direct care staff" means a Human Services Assistant, a Human Services Technician, or a nurse licensed pursuant to Title 45 of the Revised Statutes.

"State psychiatric hospital" means a psychiatric hospital listed in R.S.30:1-7.

(cf: P.L.1997, c.70, s.1)

8. Section 2 of P.L.1997, c.70 (C.30:4-3.16) is amended to read as follows:

2. a. Any employee of a State psychiatric hospital, who, as a result of information obtained in the course of [his] employment, has reasonable cause to suspect or believe that a patient is being or has been abused by any other employee of the hospital, by another patient in the hospital, or by any other person, shall report the information in a timely manner to the person who is designated by the [Commissioner of Human Services] commissioner, pursuant to [this act] section 4 of P.L.1997, c.70 (C.30:4-3.18), to receive the report.

b. Any other person having reasonable cause to suspect or believe that a patient is being or has been abused may report the information to the person who is designated by the [Commissioner of [Human Services] commissioner, pursuant to [this act] section 4 of P.L.1997, c.70 (C.30:4-3.18), to receive the report.

c. The report shall contain the name of the patient, the name of the psychiatric hospital and the unit to which the patient is assigned, if known, information regarding the nature of the suspected abuse, and any other information [which] that might be helpful in an investigation of the case and the protection of the patient.

(cf: P.L.1997, c.70, s.2)

9. Section 3 of P.L.1997, c.70 (C.30:4-3.17) is amended to read as follows:

3. Any employee of a State psychiatric hospital who, as a result of information obtained in the course of [his] employment, has reasonable cause to suspect or believe that a clinical treatment staff member or nursing direct care staff member working at the hospital has or is engaging in professional misconduct shall report the information to the person who is designated by the [Commissioner of Human Services] commissioner, pursuant to [this act] section 4 of P.L.1997, c.70 (C.30:4-3.18), to receive the report.

The report shall contain the name of the staff member, the name of the psychiatric hospital and the unit to which the staff member is assigned, information regarding the nature of the suspected professional misconduct, and any other information [which] that might be helpful in an investigation of the case.

(cf: P.L.1997, c.70, s.3)

10. Section 4 of P.L.1997, c.70 (C.30:4-3.18) is amended to read as follows:

4. The [Commissioner of Human Services] commissioner shall establish a patient abuse and professional misconduct reporting program for the State psychiatric hospitals.

a. The program shall provide, at a minimum, that State psychiatric hospital employees are to be:

(1) trained in recognizing probable incidents of, or behavior that constitutes, patient abuse or professional misconduct [and other abuse prevention activities pursuant to P.L. , c. (C. ) (pending before the Legislature as Senate Bill No.1543 or Assembly Bill No. 2427 of 1996)];

(2) informed of the duty to report [the] instances of suspected patient abuse or professional misconduct, pursuant to [this act] P.L.1997, c.70 (C.30:4-3.15 et seq.); and

(3) provided with the name and phone number of the person who is designated by the commissioner [who shall be notified] , pursuant to subsection b. of this section, to receive reports of [any] suspected patient abuse [or] and professional misconduct.

b. The commissioner shall designate one or more employees of the [Department of Human Services] department, who are not employees of any of the State psychiatric hospitals, to [serve as a contact person for] receive reports from employees of State psychiatric hospitals [to notify] in the event that an employee:

(1) has reasonable cause to suspect that a patient is being or has been abused by any other employee of the hospital, by another patient in the hospital, or by any other person[,]; or

(2) has any information concerning suspected professional misconduct by [a] clinical treatment staff or nursing direct care staff [member] working at the hospital.

c. The [designated] contact person designated pursuant to subsection b. of this section shall accept reports that are submitted by phone, by mail, or by electronic transmission. The department's Internet website shall identify the phone number, email address, and mailing address of the contact person to whom reports are to be submitted. Upon receipt of a report of abuse or professional misconduct, the designated contact person shall [report all reported incidents or allegations of patient abuse and professional misconduct] forward a copy of the report to the [Director of the Division of Mental Health Services, the Commissioner of Human Services, or their designees] commissioner or the commissioner's designee. The designated contact person shall maintain a summary record of all reports submitted pursuant to P.L.1997, c.70 (C.30:4-3.15 et seq.). The summary record shall:

(1) indicate, by category, the nature of complaints that were included in the incident reports received by the contact person;

(2) omit the personally identifying information of any person who was involved in each incident or the reporting thereof;

(3) be posted on the department's Internet website; and

(4) be regularly updated to incorporate the most current reporting information.

d. The [director] commissioner shall [cause a] ensure the prompt investigation of any report of patient abuse or professional misconduct [and notify the Commissioner of Human Services of the results of the investigation] that is forwarded thereto pursuant to subsection c. of this section.

[d. The Director of the Division of Mental Health Services, in a case in which] e. (1) Whenever the commissioner receives a report of suspected professional misconduct [is suspected], pursuant to subsection c. of this section, or discovers evidence indicating that professional misconduct either contributed to, or was the sole cause of, an injury investigated pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), the commissioner shall promptly notify the appropriate State licensing or certifying authority or professional board, if any, [having] that has jurisdiction over the [person] professional who [has been reported, of the report by the hospital employee and the results of the director's investigation of the report] is alleged to have engaged in the misconduct.

[e. The Director of the Division of Mental Health Services shall promptly report all instances] (2) Whenever the commissioner receives a report of suspected patient abuse, [as determined by the director's investigation of a report by an employee of a State psychiatric hospital,] pursuant to subsection c. of this section, or discovers evidence indicating that patient abuse either contributed to, or was the sole cause of, an injury investigated pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), the commissioner shall forward a copy of the report, and all information and evidence obtained from the department's investigation thereof, to the county prosecutor of the county in which the hospital is located. [The] Any report submitted to the county prosecutor, pursuant to this subsection, shall be prepared in accordance with regulations adopted by the [Commissioner of Human Services] commissioner, in consultation with the County Prosecutors Association of New Jersey and the Attorney General.

f. Upon receipt of a report filed pursuant to subsection e. of this section, the county prosecutor may conduct [his own] an independent review of the [suspected patient] abuse allegations and the associated evidence supporting or refuting the allegations, and [take] may undertake any appropriate action in response to such review.

g. Nothing in this section shall preclude the [Human Services police] Department of Health from using its own enforcement officers [from conducting] to conduct an investigation into allegations of patient abuse or professional misconduct.

(cf: P.L.1997, c.70, s.4)

11. Section 5 of P.L.1997, c.70 (C.30:4-3.19) is amended to read as follows:

5. a. The name of any person who reports an instance of suspected patient abuse or professional misconduct, pursuant to [this act] P.L.1997, c.70 (C.30:4-3.15 et seq.), shall not be disclosed, unless the person who reported the abuse or misconduct specifically requests the disclosure, or a judicial proceeding results from the report.

b. A person who reports suspected abuse or professional misconduct pursuant to [this act] P.L.1997, c.70 (C.30:4-3.15 et seq.), or who testifies in any administrative or judicial proceeding arising from [the] a report or prior testimony related to allegations of abuse or professional misconduct, shall have immunity from any civil or criminal liability [on account of] in association with the report or testimony, unless the person has acted in bad faith or with malicious purpose.

(cf: P.L.1997, c.70, s.5)

12. Section 6 of P.L.1997, c.70 (C.30:4-3.20) is amended to read as follows:

6. Any person who is required to report suspected patient abuse or professional misconduct, pursuant to [this act] P.L.1997, c.70 (C.30:4-3.15 et seq.), and who fails to make the requisite report, shall be liable to a penalty of not more than $5,000[, after that person has completed the abuse prevention program pursuant to paragraph (2) of subsection c. of section 2 of P.L. , c. (C. )(pending before the Legislature as Senate Bill No. 1543 or Assembly Bill No. 2427 of 1996]. The penalty shall be collected and enforced pursuant to Title 11A of the New Jersey Statutes. Each violation of [this act] P.L.1997, c.70 (C.30:4-3.15 et seq.) shall constitute a separate offense.

(cf: P.L.1997, c.70, s.6)

13. Section 7 of P.L.1997, c.70 (C.30:4-3.21) is amended to read as follows:

7. The [Commissioner of Human Services] commissioner shall adopt regulations, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), to carry out the purposes of [this act] P.L.1997, c.70 (C.30:4-3.15 et seq.).

(cf: P.L.1997, c.70, s.7)

14. This act shall take effect immediately.

STATEMENT

This bill would require psychiatric hospitals in the State to notify various parties about any major injury, moderate injury, or minor injury that is suffered by a patient, by an employee, or by any other person at the psychiatric hospital. The bill would further require the Commissioner of Health to investigate any reports of moderate or major injuries occurring in psychiatric hospitals in order to determine whether each such injury resulted from professional misconduct or, in the case of a patient injury, resulted from the abuse of the patient. While existing law does require psychiatric hospitals to regularly report on the number of moderate and major injuries that result from interactions occurring among patients or between patients and employees, the law does not require the reporting of minor injuries or the reporting of any injuries that result from interactions involving patients, employees, and other persons, such as visitors, who are neither patients nor employees but are present at the hospital. The existing law also provides only for the quarterly reporting of injury-related information, and it does not provide for injuries to be immediately reported to any interested parties or investigated by departmental officials in any way.

This bill would modify the existing law to make it more consistent with the injury notification and investigation requirements that are currently applicable, under P.L.2017, c.238 (C.30:6D-9.1 et seq.), to community-based residential programs that serve persons with developmental disabilities.

Under the bill's provisions, a psychiatric hospital will be required to provide immediate notification of any major, moderate, or minor injury suffered by any person at the hospital to the commissioner. In the case of patient injury, immediate notification of the injury is also to be provided to the guardian of the injured patient, or, if there is no guardian, to a family member of the patient who has requested such notification, unless the patient has expressly prohibited the family member from receiving such notification. A psychiatric hospital will not be required to provide notice of patient injury to a patient's guardian or family member if that guardian or family member has expressly stated, in a written document filed with the psychiatric hospital, that the person does not want to receive notification of injury.

Any notification of patient injury would need to be provided as soon as possible, but no later than two hours after the occurrence of the injury, except when an extraordinary circumstance prevents compliance with this requirement, in which case, notification is to be provided as soon as possible, but no later than eight hours after the occurrence of the injury. In any case where notice is delayed, the psychiatric hospital will be required to prepare a written, detailed explanation describing the extraordinary circumstance that led to the delay. The notice of injury required by the bill is to be provided through in-person means or by telephone. However, electronic means may be used to engage in follow-up communications following the initial notification.

Within 48 hours after receipt of a report of an incident involving major injury or moderate injury of a patient at a psychiatric hospital, the commissioner will be required to send a Department of Health employee, who is not an employee of a State psychiatric hospital, to the location of the reported incident in order to verify the incident's severity, identify the factors that led to the injury, and make a determination as to whether the injury has resulted from patient abuse or professional misconduct. If the investigation indicates that the injury resulted from patient abuse or professional misconduct, the commissioner will be required to forward the incident report, and any associated evidence discovered through the department's investigation, to the county prosecutor or the relevant professional licensing board for disciplinary action, as provided by the existing law that governs the reporting and investigation of allegations of abuse and professional misconduct occurring in psychiatric hospitals.

Any owner or operator of a psychiatric hospital that fails to comply with the bill's injury reporting requirements will be liable to pay a civil penalty of not more than $5,000 and may also be required to pay an additional administrative penalty, in an amount determined by the commissioner to be appropriate. Each violation of the bill's provisions would constitute a separate offense.

Under the bill, the department's quarterly injury report would need to separately identify, for each State psychiatric hospital, the number of unexpected deaths occurring in the hospital and the number of major, moderate, and minor injuries occurring as a result of interactions: 1) among patients; 2) between patients and staff members; 3) between patients and other persons, such as visitors, who are neither patients nor employees of the hospital but are present therein; and 4) between employees and other persons, such as visitors, who are neither patients nor employees of the hospital but are present therein.

The bill would also make minor substantive changes, and technical and clarifying amendments, to the existing law at P.L.1997, c.70 (C.30:4-3.15 et seq.), which relates to the reporting and investigation of allegations of patient abuse and professional misconduct occurring in psychiatric hospitals. These amendments would clarify that it is the Department and Commissioner of Health (and not the Department and Commissioner of Human Services) that are now responsible for the implementation of that law, as provided by Reorganization Plans 001-2017 (Christie) and 001-2018 (Murphy). The amendments would also: 1) require the department's designated contact person to accept reports of abuse or professional misconduct that are submitted by phone, by mail, or by electronic transmission; 2) require the department's Internet website to identify the phone number, email address, and mailing address of the contact person to whom reports of abuse and professional misconduct are to be submitted; and 3) require the department's designated contact person, upon receipt of a report of abuse or professional misconduct, to forward a copy of the report to the commissioner or the commissioner's designee. The designated contact person will also be required to maintain a summary record of all reports submitted thereto. That summary record is to: 1) indicate, by category, the nature of complaints that were included in the incident reports; 2) omit the personally identifying information of any person who was involved in each incident or the reporting thereof; 3) be posted on the department's Internet website; and 4) be regularly updated to incorporate the most current reporting information. The amendments would also make various technical and clarifying changes to this existing law, and eliminate confusing references to a bill that was introduced in 1996, but was never enacted.