Bill Text: NJ S533 | 2016-2017 | Regular Session | Introduced
Bill Title: Provides protections for individuals with developmental disabilities through accountability and transparency; upgrades crimes against individuals with developmental disabilities.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2016-01-12 - Introduced in the Senate, Referred to Senate Health, Human Services and Senior Citizens Committee [S533 Detail]
Download: New_Jersey-2016-S533-Introduced.html
STATE OF NEW JERSEY
217th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2016 SESSION
Sponsored by:
Senator JENNIFER BECK
District 11 (Monmouth)
SYNOPSIS
Provides protections for individuals with developmental disabilities through accountability and transparency; upgrades crimes against individuals with developmental disabilities.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act concerning individuals with developmental disabilities, revising various parts of the statutory law, and supplementing Title 2C of the New Jersey Statutes and Title 30 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. N.J.S.2C:24-7 is amended to read as follows:
2C:24-7. Endangering the welfare of [an incompetent person] certain persons.
A person is guilty of a [disorderly persons offense] crime of the fourth degree when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who:
a. is unable to care for himself because of mental disease or defect; or
b. has a developmental disability as defined in section 3 of P.L.1977, c.82 (C.30:6D-3).
(cf: P.L.1978, c.95, s.2C:24-7)
2. (New section) Endangering Welfare of Persons with Developmental Disabilities.
A caregiver or any other person having a legal duty for the care of a person with a developmental disability or who has assumed responsibility for the care of a person with a developmental disability who subjects the person with a developmental disability to abuse, neglect, or exploitation is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this section to a person with a developmental disability is guilty of a crime of the third degree.
As used in this section:
"Abuse" means wrongfully inflicting or allowing to be inflicted physical abuse, or verbal or psychological abuse or mistreatment upon an individual with a developmental disability.
"Caregiver," "exploitation," "neglect," "physical abuse," and "verbal or psychological abuse or mistreatment" have the meaning ascribed to these terms in section 2 of P.L.2010, c.5 (C.30:6D-74).
"Person with a developmental disability" has the meaning ascribed to it in section 3 of P.L.1977, c.82 (C.30:6D-3).
3. (New section) As used in sections 3 through 8 of P.L. , c. (C. )(pending before the Legislature as this bill):
"Commissioner" means the Commissioner of Human Services.
"Community-based
residential program" or "residential program" means a group
home, supervised apartment, or supported living
arrangement which is licensed and regulated by the department.
"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).
"Group home" means a living arrangement operated in residences leased or owned by a licensee, which provide the opportunity for individuals with developmental disabilities to live together in a home, sharing in chores and the overall management of the residence, and in which staff provide supervision, training, or assistance in a variety of forms and intensity as required to assist the individuals as they move toward independence.
"Licensee" means the individual, partnership, or corporation which is licensed by the department and responsible for providing services associated with the operation of a community-based residential program.
"Supervised apartment" means an apartment that is occupied by individuals with developmental disabilities and leased or owned by a licensee, and in which staff provide supervision, guidance, and training as needed in activities of daily living as defined by the individual's needs and targeted future goals.
"Supported living arrangement" means a living arrangement in which a highly flexible array of services and supports are provided in a variety of settings to individuals with developmental disabilities.
4. (New section) a. The commissioner, or the commissioner's designee, shall ensure that case managers, who may be case managers employed by the department or an agency under contract with the department, as applicable, conduct four site visits during a 12-month period to check whether the individuals with developmental disabilities who are receiving services from a community-based residential program are at risk of, or are being subjected to, abuse, neglect, or exploitation by a caregiver, and report the same pursuant to section 3 of P.L.2010, c.5 (C.30:6D-75).
b. (1) In the case of a community-based residential program which is a group home, one of the four site visits which is conducted during a 12-month period shall be an unannounced site visit conducted by a case manager who is assigned to a resident of the group home.
(2) In the case of a community-based residential program which is a supervised apartment or supported living arrangement, one of the four site visits which is conducted during a 12-month period shall be an announced or unannounced site visit of the apartment or living arrangement conducted by a case manager who is unaffiliated with and unfamiliar to the assigned case.
(3) Supervisory staff authorized by the department shall, over a three-year period, conduct one site visit, announced or unannounced, in coordination with a case manager who is unaffiliated with and unfamiliar to the assigned case, of 100 percent of the individuals with developmental disabilities who are assigned to a case manager and residing in a residential program. One-third of the visits shall be conducted in each of the first three years. If, after three years, supervisory staff determines that, based on certain factors, including, but not limited to, the number and age of the individuals residing in the community-based residential program, whether each individual attends a day program on a regular basis, and lack of complaints after three years, the individuals in the residential program are not at risk for abuse, neglect, or exploitation, the visits may be reduced to one visit every four years.
c. In the case of a State developmental center, the Department of Health shall conduct at least one unannounced site visit annually of the center. The Office of Program Integrity and Accountability in the Department of Human Services shall maintain a presence at each State developmental center, no less than biweekly, to ensure that the center follows rules and regulations adopted by the department with respect to abuse, neglect, and exploitation of individuals with developmental disabilities.
d. A written report pertaining to the care and safety of individuals with developmental disabilities residing in a community-based residential program, or in a State developmental center, shall be prepared following a visit conducted pursuant to this section.
e. A copy of a report prepared pursuant to this section and an opportunity to accompany an announced visit conducted pursuant to this section shall be made available, upon request, to the guardian of an individual with a developmental disability residing in a community-based residential program or State developmental center, or if there is no guardian, to a family member of the individual, upon request, unless the individual has expressly prohibited the family member from receiving a report or accompanying a visit pursuant to this section.
f. The commissioner, or the commissioner's designee, shall ensure that the bill of rights distributed pursuant to section 8 of P.L.1977, c.82 (C.30:6D-8) includes information explaining the availability of a report prepared, and the opportunity to accompany an announced visit conducted, pursuant to this section.
5. (New section) a. The chief executive officer of a State developmental center or the officer's designee, or a provider or licensee of a community-based residential program, as applicable, shall provide notification pursuant to subsection b. of this section of any major, moderate, or minor physical injury, as prescribed by regulation of the department, of an individual with a developmental disability residing in the developmental center or residential program as soon as possible, but not more than two hours after the occurrence of the injury; except that if there is an extraordinary circumstance which prevents such notification, the officer or designee, or the provider or licensee, as applicable, shall provide notification pursuant to subsection b. of this section as soon as possible, but not more than eight hours after the occurrence of the injury.
b. (1) Notification pursuant to this section shall be made to the guardian of the individual with a disability or, if there is no guardian of the individual, to a family member who requests such notification, unless the individual has expressly prohibited the family member from being provided notification.
(2) Notification pursuant to this section shall be in person or by telephone, and other electronic means shall be used to follow up a telephoned notification.
6. (New section) Within 48 hours of receipt of a report of an incident involving major or moderate physical injury, or abuse or neglect, as those terms are defined in section 2 of P.L.2010, c.5 (C.30:6D-74), in a State developmental center or community-based residential program, the commissioner shall send an employee of the department, who is not an employee of a State developmental center but may be a case manager employed by the department or an agency under contract with the department, as applicable, to the location of the reported incident to verify the level of severity of the incident.
7. (New section) a. Each State developmental center shall biannually schedule a meeting with parents and guardians of individuals with developmental disabilities in order to provide an opportunity for parents and guardians to share experiences about the individuals with developmental disabilities residing in the developmental center.
b. The provider of a community-based residential program shall request contact information from each parent or guardian of an individual with a developmental disability who is residing in the residential program, and advise the parent or guardian that, if the parent or guardian agrees, the provider shall exchange contact information with other parents and guardians of individuals with developmental disabilities residing in the residential program, in order to provide an opportunity for parents and guardians to share experiences about the individuals.
8. (New section) a. The Division of Developmental Disabilities in the department is authorized to establish a Division of Developmental Disability Day Habilitation Provider Certification process to ensure a quality oversight process by the division for all day habilitation services provided to individuals with developmental disabilities. The certification process may include standards for programmatic requirements, including health and safety monitoring, as well as system-wide staff training requirements.
b. The division may also establish a monitoring process, including, but not limited to, on-site inspection and ongoing audits to determine if a day habilitation services program has met established standards for service delivery, policies and procedures, as well as staff training.
c. Any standards promulgated pursuant to this section shall be published and accessible to day habilitation service providers, individuals using these services, and the families of the individuals.
9. Section 4 of P.L.2003, c.191 (C.30:6D-5.4) is amended to read as follows:
4. a. A member of the staff at a facility for persons with developmental disabilities or a facility for persons with traumatic brain injury or a member of the staff at a public or private agency who violates the provisions of section 3 of [this act] P.L.2003, c.191 (C.30:6D-5.3) shall be liable to a civil penalty of $5,000 for the first offense, $10,000 for the second offense, and $25,000 for the third and each subsequent offense, to 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.).
b. A penalty collected pursuant to this section shall be dedicated to providing funding for training caregivers, as defined in section 2 of P.L.2010, c.5 (C.30:6D-74), and for visits conducted pursuant to P.L. , c. (C. )(pending before the Legislature as this bill).
(cf: P.L.2003, c.191, s.4)
10. Section 3 of P.L.2010, c.5 (C.30:6D-75) is amended to read as follows:
3. a. (1) A case manager or case manager's supervisor in the department, a person employed or volunteering in a program, facility, community care residence, or living arrangement licensed or funded by the department, a person conducting a site visit pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill), or a person providing community-based services with indirect State funding to a person with a developmental disability, as applicable, having reasonable cause to believe that an individual with a developmental disability has been subjected to abuse, neglect, or exploitation by a caregiver shall report the same immediately to the department by telephone or otherwise.
[Such] (2) A report made pursuant to paragraph (1) of this section, where possible, shall contain the name and address of the individual with a developmental disability and the caregiver responsible for the care, custody, or control of the individual with a developmental disability, and the guardian, or if there is no guardian, a family member who has requested notification from the department, 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 person 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. Within the department, the commissioner shall:
(1) maintain a unit to receive and prioritize such reports [,] ;
(2) provide for verification of the unit's prioritization of the reports by sending an employee or case manager to the appropriate location within 48 hours to verify the level of severity of the report, pursuant to section 6 of P.L. , c. (C. )(pending before the Legislature as this bill);
(3) initiate appropriate responses through timely and appropriate investigative activities [,] ;
(4) alert appropriate staff [,] ; and
(5) ensure that findings are reported in a uniform and timely manner.
c. (1) A person employed or volunteering in a program, facility, community care residence, or living arrangement licensed or funded by the department, or a person providing community-based services with indirect State funding to a person with a developmental disability, as applicable, who fails to report an act of abuse, neglect, or exploitation against an individual with a developmental disability while having reasonable cause to believe that such an act has been committed, is a disorderly person.
(2) A case manager or case manager's supervisor in the department 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 [disorderly person's offense] crime of the fourth degree, unless the abuse, neglect, or exploitation results in the death of an individual with a developmental disability, in which case the case manager or case manager's supervisor shall be guilty of a crime of the [fourth] third degree.
d. In addition to any penalty imposed pursuant to this section, a person convicted under this section shall be subject to a penalty in the amount of $350 for each day that the abuse, neglect, or exploitation was not reported, payable to the Treasurer of the State of New Jersey, which shall be used 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, the case manager or supervisor shall retain any available right of review by the Civil Service Commission.
(cf: P.L.2012, c.69, s.9)
11. 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), the department 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 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.). The guardian of the individual with a developmental disability also shall be authorized to request appropriate assistance from local and State law enforcement officials.
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] which shall include:
(1) maintaining [a Special Response] an Office of Investigations 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; and
(2) providing an opportunity for a guardian to submit information to facilitate an investigation; except that if there is no guardian a family member of the individual may submit information, unless the individual has expressly prohibited the family member from doing so. During its investigation of an allegation of abuse, neglect, or exploitation of an individual with a developmental disability by a caregiver, the [Special Response] Office of Investigations 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. A guardian of an individual with a developmental disability, upon request, may be permitted to attend an investigative interview of the person the guardian represents, unless the attendance would jeopardize the investigation.
c. The [Special Response] Office of Investigations Unit, the department, or other investigating entity shall forward to the commissioner, or the commissioner's designee, a substantiated incident of abuse, neglect, or exploitation of an individual with a developmental disability for inclusion of an offending caregiver on the central registry. The [Special Response] Office of Investigations Unit, the department, or other investigating entity shall also forward to the commissioner, or the commissioner's designee, all unsubstantiated incidents of abuse, neglect, or exploitation of an individual with a developmental disability. As soon as possible, and no later than 14 days after receipt of the incident of abuse, neglect, or exploitation, the commissioner or the commissioner's designee shall review the incident. The offending caregiver of a substantiated incident shall be included on the central registry as expeditiously as possible. The [Special Response] Office of Investigations Unit shall retain a record of all unsubstantiated incidents.
d. 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)]. In the case of a substantiated incident of abuse, neglect, or exploitation of an individual with a developmental disability the department shall contact the Office of the Attorney General, which shall determine whether to participate in the investigation.
e. (1) The [Special Response] Office of Investigations 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 d. of this section. The report shall also 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.
(2) A written summary of the [conclusions of the] investigation, as provided for in paragraph (3) of this subsection, shall be provided to the guardian or [authorized] family member of the individual with a developmental disability who is the subject of the alleged abuse, neglect, or exploitation; except that records and reports of an investigation shall be provided to a guardian or other person who is responsible for the welfare of the individual with a developmental disability if: the information is needed in connection with the provision of care, treatment, assessment, evaluation, or supervision to the individual; and the provision of information is in the best interests of the individual with a disability as determined by the Division of Developmental Disabilities.
(3) The written summary of an investigation of an alleged incident of abuse, neglect, or exploitation shall include, but not be limited to:
(a) the name of the individual with a developmental disability who is the subject of the alleged abuse, neglect, or exploitation;
(b) the date of the incident or the date the incident was reported if the incident date is unknown;
(c) whether the incident is an allegation of abuse, neglect, or exploitation;
(d) the incident number;
(e) a summary of the allegation of abuse, neglect, or exploitation;
(f) a finding that the incident is substantiated or unsubstantiated;
(g) the rationale for the finding and, if a substantiated incident, a description of the action or inaction that precipitated the finding;
(h) if known at the time of issuing the summary, whether or not criminal charges against the alleged offending caregiver are pending; and
(i) whether remedial action was taken.
(4) If there is no guardian of the individual with a developmental disability who is the subject of the alleged abuse, neglect or exploitation, the written summary described in paragraph (3) of this subsection shall be provided to a family member of the individual, unless the individual has expressly prohibited the family member from receiving such summary.
f. A licensed provider in another state shall be permitted access to the central registry.
(cf: P.L.2012, c.69, s.10)
12. Section 5 of P.L.2010, c.5 (C.30:6D-77) is amended to read as follows:
5. a. There is established a Central Registry of Offenders Against Individuals with Developmental Disabilities in the department.
b. The commissioner shall adopt rules and regulations that define the procedures and standards for inclusion of an offending caregiver on the central registry, and for notification of such inclusion to the caregiver and to the guardian of the individual with a developmental disability who was the subject of the abuse, neglect, or exploitation that led to the caregiver's inclusion on the central registry. The commissioner, or the commissioner's designee, shall notify the guardian of the individual of any action taken by the department to remediate a condition that may have contributed to the occurrence of the abuse, neglect, or exploitation of the individual. If the individual with a developmental disability has no guardian, notification pursuant to this subsection shall be to a family member who requests such notification, unless the individual has expressly prohibited the family member from being provided notification.
(1) For inclusion on the central registry in the case of a substantiated incident of abuse, the caregiver shall have acted with intent, recklessness, or careless disregard to cause or potentially cause injury to an individual with a developmental disability.
(2) For inclusion on the central registry in the case of a substantiated incident of neglect, the caregiver shall have acted with gross negligence, recklessness, or in a pattern of behavior that causes or potentially causes harm to an individual with a developmental disability.
(3) In the case of a substantiated incident of exploitation, the commissioner shall establish a dollar amount for inclusion on the central registry.
c. The commissioner also shall adopt rules and regulations:
(1) necessary to provide for an appeals process, through the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), of the commissioner's determination to include an alleged offending caregiver's name on the central registry. The commissioner's determination shall be a final agency decision subject to review by the Appellate Division of the Superior Court;
(2) concerning the dissemination of information in the central registry;
(3) that will prohibit persons included on the central registry from employment in facilities or programs of the Division of Developmental Disabilities in the department and those facilities or programs licensed, contracted, or regulated by the department, or from providing community-based services with indirect State funding to [persons] individuals with developmental disabilities; and
(4) necessary to provide for the removal of a person's name from the central registry. A person may apply for removal of his name to the commissioner after a period of five years of being placed on the central 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.
d. The commissioner may adopt rules and regulations that will allow bona fide employers serving vulnerable populations to inquire of the department if potential or current employees are included on the central registry, consistent with federal and State privacy and confidentiality laws.
e. No information received in the central 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.).
(cf: P.L.2010, c.5, s.5)
13. 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), 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 (C.30:6D-73 et seq.) shall be kept confidential and may be disclosed only:
a. insofar as information is shared with a guardian in connection with a guardian's attendance at an investigative interview as provided for in subsection b. of section 4 of P.L.2010, c.5 (C.30:6D-76); or
b. under circumstances expressly authorized by paragraphs (2) and (4) of subsection e. of section 4 of P.L.2010, c.5 (C.30:6D-76), or by rules and regulations promulgated by the commissioner.
c. The department shall only disclose information that is relevant to the purpose for which the information is required or is authorized as provided for in subsections a. and b. of this section; 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 (C.30:6D-73 et seq.) 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)
14. The Commissioner of Human Services, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations necessary to effectuate the purposes of this act.
15. This act shall take effect on the first day of the seventh month next following 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 is intended to improve protections for individuals with developmental disabilities and provide for increased transparency of investigations conducted in connection with an allegation of abuse, neglect, or exploitation of individuals with developmental disabilities. The bill would also establish new criminal penalties for certain crimes committed against persons with developmental disabilities.
Section 1 of the bill upgrades N.J.S.2C:24-7 concerning endangering the welfare of certain persons. Currently, this statute makes it a disorderly persons offense to knowingly act in a manner likely to be injurious to the welfare of a person "who is unable to care for himself because of mental disease or defect." The bill would upgrade this offense to a crime of the fourth degree and provide that the statute would also apply to persons with developmental disabilities.
The bill defines "developmental disability" as the term is defined in section 3 of P.L.1977, c.82 (C.30:6D-3): "a severe, chronic disability of a person which:
(1) is attributable to a mental or physical impairment or combination of mental or physical impairments;
(2) is manifest before age 22;
(3) is likely to continue indefinitely;
(4) results in substantial functional limitations in three or more of the following areas of major life activity, that is, self-care, receptive and expressive language, learning, mobility, self-direction and capacity for independent living or economic self-sufficiency; and
(5) reflects the need for a combination and sequence of special inter-disciplinary or generic care, treatment or other services which are of lifelong or extended duration and are individually planned and coordinated. Developmental disability includes, but is not limited to severe disabilities attributable to, an intellectual disability, autism, cerebral palsy, epilepsy, spina bifida and other neurological impairments where the above criteria are met."
The bill also establishes new crimes involving endangering the welfare of persons with developmental disabilities. Under section 2 of the bill, a caregiver or any other person having a legal duty for the care of a person with a developmental disability or who has assumed responsibility for the care of a person with a developmental disability who subjects the person with a developmental disability to abuse, neglect, or exploitation would be guilty of a crime of the second degree. Any other person who engages in such conduct would be guilty of a crime of the third degree.
The bill defines "abuse" as "wrongfully inflicting or allowing to be inflicted physical abuse, or verbal or psychological abuse or mistreatment upon an individual with a developmental disability."
The bill provides that the terms "caregiver," "exploitation," "neglect," "physical abuse," and "verbal or psychological abuse or mistreatment" have the meaning ascribed to these terms in section 2 of P.L.2010, c.5 (C.30:6D-74).
A crime of the second degree is generally punishable by a term of imprisonment of five to 10 years or a fine up to $150,000, or both; a crime of the third degree, by a term of imprisonment of three to five years or a fine up to $15,000, or both, and a crime of the fourth degree, by a term of imprisonment of up to 18 months or a fine up to $10,000, or both. A disorderly persons offense is punishable by a term of imprisonment of up to six months or a fine of up to $1,000 or both.
Under other provisions of the bill, the Commissioner of Human Services, or the commissioner's designee, is to ensure that case managers conduct four site visits during a 12-month period to check whether the individuals with developmental disabilities who are receiving services from a community-based residential program are at risk of, or are being subjected to, abuse, neglect, or exploitation by a caregiver, and report the same pursuant to the Central Registry of Offenders Against Individuals with Developmental Disabilities (Central Registry Law), established pursuant to P.L.2010, c.5 (C.30:6D-73 et seq.). "Community-based residential program" is defined in the bill as a group home, supervised apartment, or supported living arrangement licensed and regulated by the Department of Human Services (DHS).
For a group home, one of the four visits would be an unannounced site visit conducted by a case manager who is assigned to a resident of the group home; and for a community-based residential program which is a supervised apartment or supported living arrangement, one of the four site visits would be an announced or unannounced site visit conducted by a case manager who is unaffiliated with and unfamiliar to the assigned case. Over a three-year period, one announced or unannounced visit would be conducted by supervisory staff, authorized by DHS in coordination with a case manager who is unaffiliated with and unfamiliar to the assigned case, of 100 percent of the individuals with developmental disabilities who are assigned to a case manager and residing in a residential program. One-third of the visits are to be conducted in each of the first three years and if, after three years, it is determined that the individuals are not at risk for abuse, neglect, or exploitation, the visits may be reduced to once every four years.
In the case of a developmental center, the Department of Health would conduct at least one unannounced site visit annually. Additionally, the Office of Program Integrity and Accountability in DHS is to maintain a presence at each State developmental center, no less than biweekly, to ensure that the center follows rules and regulations with respect to abuse, neglect, and exploitation of individuals with developmental disabilities.
Following each visit, a report would be prepared and the report, as well as an opportunity to accompany an announced visit, would be made available, upon request, to a guardian; however, if there is no guardian the report and visit would be available to a family member unless the individual with developmental disabilities has expressly prohibited the family member from receiving a report or accompanying a visit.
The bill also requires developmental centers and providers or licensees of community-based residential programs to provide notification to a guardian of any major, moderate, or minor physical injury of an individual with a developmental disability residing in a developmental center or community-based residential program; except that if there is no guardian, the family would be notified unless expressly prohibited by the individual. The notification would be as soon as possible, but not more than two hours after the occurrence of the injury, unless there is an extraordinary circumstance in which case notification is to occur not more than eight hours after the injury occurred. Additionally, within 48 hours of receipt of a report of a major or moderate physical injury, or abuse or neglect in a developmental center or community-based residential program, DHS is to send an employee to verify the level of severity of the incident.
Further, each developmental center is to biannually schedule a meeting with parents and guardians in order to provide an opportunity for parents and guardians to share experiences about the individuals with developmental disabilities residing in the center. Similarly, the provider of a community-based residential program is to request contact information from each parent or guardian of an individual with a developmental disability and advise those persons that, if they agree, the provider would exchange contact information with other parents and guardians.
The bill also provides that the Division of Developmental Disabilities (DDD) is authorized to establish a DDD Day Habilitation Provider Certification process to ensure a quality oversight process by DDD for all day habilitation services provided to individuals with developmental disabilities. The process may include standards for programmatic requirements, including health and safety monitoring, as well as system-wide staff training requirements. DDD may also establish a monitoring process, including, but not limited to, on-site inspection and ongoing audits to determine if a day habilitation services program has met established standards for service delivery, policies and procedures, as well as staff training. Any standards promulgated would be published and accessible to day habilitation service providers, individuals using these services, and the families of the individuals.
The bill also revises the penalty provisions of "Danielle's Law," P.L.2003, c.191 (C.30:6D-5.1 et seq.) to require that penalties collected under that law would be used for caregiver training and site visits conducted under this bill.
The bill's amendments to the Central Registry Law permit the guardian of an individual with a developmental disability to: request assistance from local and State law enforcement officials; submit information to facilitate an investigation; and attend an investigation interview of the person the guardian represents, unless the attendance would jeopardize the investigation. The bill further amends the law to change the failure of a case manager or supervisor to report an incident from a disorderly persons offense (punishable by a term of imprisonment of up to six months, a fine of up to $1,000, or both) to a fourth degree crime (punishable by a term of imprisonment of up to 18 months, a fine of up to $10,000, or both), and makes it a third degree crime (punishable by a term of imprisonment of three to five years, a fine of up to $15,000, or both) rather than a fourth degree crime if the unreported incident results in death.
The confidentiality provisions of the Central Registry Law are amended in the bill to permit records and reports of an investigation to be provided to a guardian or other person responsible for the welfare of the individual with a developmental disability if: information is needed in connection with caring for, treating, assessing, evaluating, or supervising the individual; and providing information is in the best interests of the individual, as determined by DDD. In addition, a written summary of the investigation of an allegation of abuse, neglect, or exploitation would be provided to the guardian or family member of the individual, except that if there is no guardian, the summary would be provided to a family member unless expressly prohibited by the individual. The summary would include, but not be limited to: the name of the individual with a developmental disability who is the subject of the allegation; the date of the incident, or the date reported if the incident date is unknown; whether the incident is an allegation of abuse, neglect, or exploitation; the incident number; a summary of the allegation; a finding that the incident is substantiated or unsubstantiated; the rationale for the finding and, if a substantiated incident, a description of the action or inaction that precipitated the finding; if known at the time of issuing the summary, whether or not criminal charges against the alleged offending caregiver are pending; and whether remedial action was taken.
