Bill Text: NJ S759 | 2010-2011 | Regular Session | Introduced
Bill Title: "Tara's Law"; Establishes registry of offending community care residence providers and requires written monthly case manager reports of individuals with developmental disabilities residing in community care residences.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-01-12 - Introduced in the Senate, Referred to Senate Health, Human Services and Senior Citizens Committee [S759 Detail]
Download: New_Jersey-2010-S759-Introduced.html
STATE OF NEW JERSEY
214th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2010 SESSION
Sponsored by:
Senator JENNIFER BECK
District 12 (Mercer and Monmouth)
SYNOPSIS
"Tara's Law"; establishes registry of offending community care residence providers and requires written monthly case manager reports of individuals with developmental disabilities residing in community care residences.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning individuals with developmental disabilities, designated as "Tara's Law," amending P.L.1983, c.524, and supplementing chapter 6D of Title 30 of the Revised Statutes.
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. The safety of some of our most vulnerable citizens, those individuals with developmental disabilities who reside in community care residences throughout the State, is of utmost importance;
b. These community care residences are private homes or apartments in which adults or families contract with the Department of Human Services to provide care and training to individuals with developmental disabilities; the department issues licenses to individuals to operate community care residences if they satisfy the department's standards for these residences;
c. To help protect the safety of individuals with developmental disabilities who reside in community care residences, it is important that the department establish and maintain a registry so that those providers who have been implicated in substantiated incidents of abuse, neglect, exploitation, or abandonment of individuals with developmental disabilities are prevented from employment in facilities or programs of the Division of Developmental Disabilities and facilities or programs licensed, contracted, or regulated by the department, unless they can show they have been rehabilitated; and
d. Under current law, a case manager is required to visit a community care residence monthly and inspections must be conducted at least annually; additionally, unannounced inspections are authorized as deemed necessary to allow for inquiry into the operation of the residence and care management of the individual with developmental disabilities. To ensure proper follow up after monthly visits, it is necessary that a case manager send a written report that describes the care and safety of the individual with developmental disabilities to his supervisor and the individual's parent or legal guardian.
2. (New section) As used in this act:
"Abandonment" shall consist of any of the following acts by a community care residence provider on an individual with developmental disabilities: willfully forsaking the individual with developmental disabilities; or failing to care for and keep control and custody of the individual so that the individual is exposed to physical or moral risk without proper and sufficient protection.
"Abuse" means wrongfully inflicting or allowing to be inflicted physical abuse or verbal or psychological abuse or mistreatment by a community care residence provider upon an individual with developmental disabilities.
"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" means a private home or apartment in which a person 18 years of age or older or family is licensed by and contracts with the department to provide an individual with developmental disabilities with care or training, or both.
"Community care residence provider" means a licensee or an alternate.
"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 community care residence provider using an individual with developmental disabilities or his resources for another person's profit or advantage.
"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 developmental disabilities.
"Neglect" shall consist of any of the following acts by a community care residence provider on an individual with developmental disabilities: 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 developmental disabilities.
"Physical abuse" means a physical act directed at an individual with developmental disabilities by a community care residence provider 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 developmental disabilities being isolated, abducted, pinched, bitten, punched, slapped, hit, pushed, dragged, or struck with a thrown or held object.
"Registry" means the Registry of Offending Community Care Residence Providers established pursuant to this act.
"Verbal or psychological abuse or mistreatment" means any verbal or non-verbal act or omission by a caregiver that inflicts one or more of the following: emotional harm; mental distress; or invocation of fear, humiliation, intimidation, or degradation to an individual with developmental disabilities. 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 developmental disabilities.
3. (New section) a. If a person has reasonable cause to believe that an individual with developmental disabilities has been subjected to abuse, neglect, exploitation, or abandonment by a community care residence provider, that person shall report the same immediately to the department by telephone or otherwise. The report, if possible, shall contain the name and address of the individual with developmental disabilities and the individual's community care residence provider, guardian, or other person having custody and control of the individual and, if known:
(1) the condition of the individual with developmental disabilities;
(2) the nature and possible extent of the individual's injuries, maltreatment, abuse, neglect, exploitation, or abandonment, including any evidence of previous injuries, maltreatment, abuse, neglect, exploitation, or abandonment; and
(3) any other information that the person believes may be helpful with respect to the injuries, maltreatment, abuse, neglect, exploitation, or abandonment of the individual with developmental disabilities and the identity of the alleged offender.
b. The commissioner shall designate staff to receive and prioritize such reports, initiate appropriate responses through timely and appropriate investigative activities, and ensure that findings are reported in a uniform and timely manner.
c. A person who fails to report an act of abuse, neglect, exploitation, or abandonment of an individual with developmental disabilities while having reasonable cause to believe that such an act has been committed, is a disorderly person.
4. (New section) a. Upon receipt of a report pursuant to section 3 of this act, the commissioner shall 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 developmental disabilities, and to that end may request appropriate assistance from local and State law enforcement officials or Adult Protective Services, pursuant to P.L.1993, c.249 (C.52:27D-406 et seq.).
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, exploitation, or abandonment of an individual with developmental disabilities by a community care residence provider.
5. (New section) a. The commissioner shall establish and maintain a Registry of Offending Community Care Residence Providers in the department.
b. The commissioner shall adopt rules and regulations specifying the procedures and standards for inclusion of a community care residence provider on the registry and for notification of such inclusion to the provider.
(1) For inclusion on the registry in the case of a substantiated incident of abuse, the provider shall have acted with intent, recklessness, or careless disregard to cause or potentially cause injury to an individual with developmental disabilities.
(2) For inclusion on the registry in the case of a substantiated incident of abandonment or neglect, the provider shall have acted with gross negligence, recklessness, or in a pattern of behavior that causes or potentially causes harm to an individual with developmental disabilities.
(3) In the case of a substantiated incident of exploitation, the commissioner shall establish a minimum dollar amount for inclusion on the registry.
c. The commissioner also shall adopt rules and regulations that:
(1) provide for an appeals process of the determination to include an alleged offending community care residence provider's name on the registry;
(2) concern the dissemination of information in the registry;
(3) prohibit persons included on the registry from employment in facilities or programs of the division and facilities or programs licensed, contracted, or regulated by the department; and
(4) provide for the removal of a person's name from the registry. A person may apply for removal of his name to the commissioner after a period of five years of being placed on the registry. The person shall affirmatively demonstrate to the commissioner clear and convincing evidence of rehabilitation, using the provisions of P.L.1968, c.282 (C.2A:168A-1 et seq.) as a guide; and
d. The commissioner may adopt rules and regulations to allow bona fide employers serving vulnerable populations to inquire of the department if potential or current employees are included on the registry, consistent with federal and State privacy and confidentiality laws.
e. No information received in the registry shall be considered as a public or government record within the meaning of P.L.1963, c.73 (C.47:1A-1 et seq.) or P.L.2001, c.404 (C.47:1A-5 et al.).
6. (New section) A record of a report made pursuant to this act, any information obtained by the department in investigating such reports, and a report of findings forwarded to the registry pursuant to this act 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 developmental disabilities 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 shall be construed to permit the disclosure of any information deemed confidential by federal or State law.
7. (New section) The department shall maintain a 24-hours a day, seven days a week emergency telephone service for the receipt of calls involving a report, complaint, or allegation of abuse, neglect, exploitation, or abandonment pursuant to this act.
8. (New section) a. A person acting pursuant to this act in the making of a report under this act 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.
b. A person who reports or causes to report in good faith an allegation of abuse, neglect, exploitation, or abandonment pursuant to this act 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, exploitation, or abandonment pursuant to this act, the court may grant reinstatement of employment with back pay or other legal or equitable relief.
9. Section 8 of P.L.1983, c.524 (C.30:6D-20) is amended to read as follows:
8. a. The department shall ensure that every developmentally disabled person covered by [this act]P.L.1983, c.524 is visited at least monthly by a case manager employed by the department or by an agency under contract to the department.
b. In the case of a monthly visit to a person with developmental disabilities residing in a community care residence, upon completion of the monthly visit, the case manager shall provide a written report to the case manager's supervisor and to the parent or legal guardian, as appropriate, of the person with developmental disabilities. The report, which shall be sent electronically to the case manager's supervisor and, if practicable, electronically to the parent or legal guardian, shall include information pertaining to the care and safety of the person with developmental disabilities, including, but not limited to, personal hygiene and grooming, nutritional and clothing needs, and overall general well-being of the person with developmental disabilities.
(cf: P.L.1983, c.524, s.8)
10. 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.
11. 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 seeks to protect individuals with developmental disabilities who reside in community care residences from abuse, neglect, exploitation, or abandonment by: establishing a registry of community care residence providers who are implicated in substantiated incidents of abuse, neglect, exploitation, or abandonment of an individual with developmental disabilities; and requiring case managers to provide written reports upon completion of their monthly visits to individuals with developmental disabilities.
Specifically, the bill requires the Department of Human Services (DHS) to establish and maintain a Registry of Offending Community Care Residence Providers. "Community Care Residence Providers" are defined in the bill as: "licensees," who are the one or more adults named on the license issued by DHS to operate a community care residence and have overall responsibility for an individual with developmental disabilities; and "alternates," who are adults who assume the responsibility of licensees when they are absent from the community care residence.
The bill also defines the terms "abuse" (which includes both physical abuse and verbal or psychological abuse or mistreatment), "neglect," "exploitation," and "abandonment."
The bill provides that if a person has reasonable cause to believe that an individual with developmental disabilities has been subjected to abuse, neglect, exploitation, or abandonment by a community care residence provider, that person must make a report immediately to DHS. The report, if possible, would contain the name and address of the individual with developmental disabilities and the individual's community care residence provider, guardian, or other person having custody and control of the individual and, if known: the condition of the individual with developmental disabilities and other information helpful to understanding the condition of the individual and the identity of the alleged offender. A person who fails to report an act of abuse, neglect, exploitation, or abandonment of an individual with developmental disabilities while having reasonable cause to believe that such an act has been committed, is a disorderly person (punishable by up to six months imprisonment, a fine of $1,000, or both).
The Commissioner of Human Services is required to designate staff to receive and prioritize reports, initiate appropriate responses through timely and appropriate investigative activities, and ensure that findings are reported in a uniform and timely manner. Upon receipt of a report, the commissioner must take such action as shall be necessary to ensure the safety of the individual with developmental disabilities, and to that end may request appropriate assistance from local and State law enforcement officials or Adult Protective Services, pursuant to P.L.1993, c.249 (C.52:27D-406 et seq.).
The commissioner is also required to adopt rules and regulations that:
· provide for an investigation of a reported incident and subsequent substantiation or non-substantiation of an allegation of abuse, neglect, exploitation, or abandonment of an individual with developmental disabilities by a community care residence provider;
· specify the procedures and standards for inclusion of a community care residence provider on the Registry of Offending Community Care Residence Providers and for notification of such inclusion to the provider. For inclusion on the registry in the case of a substantiated incident of:
--abuse, the provider must have acted with intent, recklessness, or careless disregard to cause or potentially cause injury to an individual with developmental disabilities;
--abandonment or neglect, the provider shall have acted with gross negligence, recklessness, or in a pattern of behavior that causes or potentially causes harm to an individual with developmental disabilities; and
--exploitation, the commissioner shall establish a minimum dollar amount for inclusion on the registry;
· provide for an appeals process of the determination to include an alleged offending community care residence provider's name on the registry;
· address the dissemination of information in the registry;
· prohibit persons included on the registry from employment in facilities or programs of the Division of Developmental Disabilities in DHS and facilities or programs licensed, contracted, or regulated by the department; and
· provide for the removal of a person's name from the registry. A person may apply for removal of his name after a period of five years of being placed on the registry, and must affirmatively demonstrate clear and convincing evidence of rehabilitation, using the provisions of P.L.1968, c.282 (C.2A:168A-1 et seq.) as a guide.
The commissioner may also adopt rules and regulations to allow bona fide employers serving vulnerable populations to inquire of DHS if potential or current employees are included on the registry, consistent with federal and State privacy and confidentiality laws. Information received in the registry shall not be considered as a public or government record within the meaning of P.L.1963, c.73 (C.47:1A-1 et seq.) or P.L.2001, c.404 (C.47:1A-5 et al.).
The bill provides for confidentiality of records and provides that a record of a report made pursuant to the bill, any information obtained by DHS in investigating such reports, and a report of findings forwarded to the registry must be kept confidential and may be disclosed only under circumstances expressly authorized by rules and regulations promulgated by the commissioner. DHS shall only disclose information 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 developmental disabilities or the life or safety of any other person, or which may compromise the integrity of a DHS investigation, civil or criminal investigation, or judicial proceeding. If access to specific information is denied on this basis, the requesting entity may seek disclosure through the Superior Court. The bill specifies that nothing in the bill shall be construed to permit the disclosure of any information deemed confidential by federal or State law.
In addition, the bill requires DHS to maintain a 24-hours a day, seven days a week emergency telephone service for the receipt of calls involving a report, complaint, or allegation of abuse, neglect, exploitation, or abandonment under the bill.
The bill also provides immunity from any civil or criminal liability that might otherwise be incurred or imposed. The immunity extends 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, exploitation, or abandonment pursuant to 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, exploitation, or abandonment pursuant to this bill, the court may grant reinstatement of employment with back pay or other legal or equitable relief.
In addition to the establishment of the registry, case managers, who are required under current law to visit individuals with developmental disabilities at least monthly in community care residences, are required under the bill to provide written reports upon completion of the monthly visits. The reports would be provided to the case manager's supervisor and to the parents or legal guardian of the individual with developmental disabilities residing in a community care residence. The bill specifies that reports must include information pertaining to the care and safety of the individual with developmental disabilities, including, but not limited to, personal hygiene and grooming, nutritional and clothing needs, and overall general well-being of the person with developmental disabilities.
Lastly, the bill has a delayed effective date of 180 days after enactment, but allows the commissioner to take such anticipatory administrative action in advance thereof as necessary for implementation of the bill.
It is intended that this legislation, by establishing the Registry of Offending Community Care Residence Providers, and requiring a written report upon completion of a case manager's monthly visit, will help to prevent the reoccurrence of tragedies such as the one that occurred in November 2008. Tara, a 28-year old woman with developmental disabilities, who had been receiving services from the Division of Developmental Disabilities and had been placed in a 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. The bill is designated "Tara's Law" in her memory.
