SENATE, No. 516

STATE OF NEW JERSEY

217th LEGISLATURE

PRE-FILED FOR INTRODUCTION IN THE 2016 SESSION

 


 

Sponsored by:

Senator† JENNIFER BECK

District 11 (Monmouth)

Senator† STEPHEN M. SWEENEY

District 3 (Cumberland, Gloucester and Salem)

 

Co-Sponsored by:

Senators T.Kean, Weinberg, Pou, Holzapfel and Bateman

 

 

 

 

SYNOPSIS

†††† Provides protections for individuals with developmental disabilities through accountability and transparency; designated as "Stephen Komninos' Law."

 

CURRENT VERSION OF TEXT

†††† Introduced Pending Technical Review by Legislative Counsel.

††


An Act concerning individuals with developmental disabilities, designated as Stephen Komninos' Law, supplementing Title 30 of the Revised Statutes, and amending P.L.2010, c.5.

 

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

 

†††† 1.††† (New section)† a.† The Commissioner of Human Services, or the commissioner's designee, shall designate one or more members of the public to serve as an advocate for individuals with developmental disabilities and one or more staff members from the Special Response Unit in the department, to participate in an unannounced site visit conducted pursuant to this section.

†††† b.††† An advocate and staff member designated pursuant to subsection a. of this section and a member of a law enforcement agency shall conduct at least six bi-monthly unannounced site visits during a calendar year at a facility, as defined in section 3 of P.L.1977, c.82 (C.30:6D-3), to check whether the individuals with developmental disabilities who are receiving services from the facility 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).

 

†††† 2.††† (New section)† a.† The commissioner, or the commissioner's designee, shall notify the guardian or authorized family member of an individual with a developmental disability receiving services from the Division of Developmental Disabilities of any injury to the individual with a developmental disability, as soon as possible, but no later than one hour after the occurrence of the injury.† Notification shall be in person, or by telephone and the use of other electronic means to follow up the telephoned notification.

†††† b.††† As used in this section "authorized family member" means a relative of the individual with a developmental disability authorized by the individual's guardian, or by the individual if the individual is his own guardian, to receive information pursuant to this section.

 

†††† 3.††† (New section) †a. †Each State developmental center and private licensed facility for persons with developmental disabilities shall bi-annually host an event and invite parents and guardians of individuals with developmental disabilities to the event in order to provide an opportunity for parents and guardians to share experiences about their family members and wards with developmental disabilities.

†††† b.††† The provider of a community residence for the developmentally disabled, as defined in section 2 of P.L.l977, c.448 (C.30:11B-2), shall request contact information from each parent or guardian of an individual with a developmental disability residing in the residence 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 residence, in order to provide an opportunity for parents and guardians to share experiences about their family members and wards with developmental disabilities.

 

†††† 4.††† Section 2 of P.L.2010, c.5 (C.30:6D-74) is amended to read as follows:

†††† 2.††† 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 caregiver upon an individual with a developmental disability.

†††† "Authorized family member" means a relative of the individual with a developmental disability authorized by the individual's guardian, or by the individual if the individual is his own guardian, to receive information pursuant to P.L.2010, c.5 (C.30:6D-73 et seq.).

†††† "Caregiver" means a person who receives State funding, directly or indirectly, in whole or in part, to provide services or supports, or both, to an individual with a developmental disability; except that "caregiver" shall not include an immediate family member of a person with a developmental disability.

†††† "Central registry" means the Central Registry of Offenders Against Individuals with Developmental Disabilities established pursuant to [this act] P.L.2010, c.5 (C.30:6D-73 et seq.).

†††† "Commissioner" means the Commissioner of Human Services.

†††† "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).

†††† "Exploitation" means the act or process of a caregiver 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 caregiver or an individual with a developmental disability, or any flagrantly lewd and offensive act which the caregiver knows or reasonably expects is likely to be observed by an individual with a developmental disability.

†††† "Neglect" shall consist of any of the following acts by a caregiver 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.

†††† "Physical abuse" means a physical act directed at an individual with a developmental disability by a caregiver 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 caregiver and an individual with a developmental disability.† Any form of sexual contact or activity between a caregiver 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 caregiver is on or off duty.

†††† "Sexual contact" means an intentional touching by a caregiver or individual with a developmental disability, either directly or through clothing, of the intimate parts of the individual with a developmental disability or the caregiver for the purpose of sexually arousing or sexually gratifying the caregiver.† Sexual contact of the caregiver with himself must be in view of the individual with a developmental disability whom the caregiver knows to be present.

†††† "Sexual penetration" means vaginal intercourse, cunnilingus, fellatio, or anal intercourse between a caregiver and an individual with a developmental disability or insertion of the hand, finger, or object into the anus or vagina, either by the caregiver or upon the caregiver's instruction.

†††† "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 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.

(cf:† P.L.2010, c.5, s.2)

 

†††† 5.††† 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 an unannounced site visit pursuant to section 1 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, and if appropriate the department shall notify, no later than one hour after the occurrence of the abuse, neglect, or exploitation, the guardian or authorized family member of the individual with a developmental disability who was the subject of the abuse, neglect, or exploitation, as required by section 2 of P.L.    , c.†† (C.†††††† )(pending before the Legislature as this bill).

†††† (2)†† Such report, 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 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 maintain a unit 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.†††† (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 personís 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)

 

†††† 6.††† 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 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 ; (2) notification of the name of the individual who is investigating an incident that occurred at a developmental center to the guardian or authorized family member of the individual with a developmental disability who is the subject of the incident; and (3) providing an opportunity for a guardian or authorized family member to submit information to facilitate an 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 or the chief executive officer of a developmental center or the officer's designee, as applicable, 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, shall be permitted to attend, or observe if attendance would impede the investigation, an investigative interview concerning an allegation of abuse, neglect, or exploitation of the individual.

†††† c.†††† The Special Response 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 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 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) contact the Office of the Attorney General, which shall determine whether to participate in the investigation.

†††† e.†††† (1)† 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 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 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.

†††† f.†††† A licensed provider in another state shall be permitted access to the central registry.

(cf:† P.L.2012, c.69, s.10)

 

†††† 7.††† 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 or authorized family member 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 or authorized family member 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.

†††† (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 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)

 

†††† 8.††† 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, or observation of, 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 paragraph (2) 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.

†††† 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)

 

†††† 9.††† 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.

 

†††† 10.† 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, which is designated as "Stephen Komninos' Law," improves protections for individuals with developmental disabilities and provides for increased transparency of investigations conducted in connection with an allegation of abuse, neglect, or exploitation of individuals with developmental disabilities.

†††† The bill provides for six bi-monthly unannounced site visits to be conducted at a facility, which is defined pursuant to section 3 of P.L.1977, c.82 (C30:6D-3) and includes facilities operated by any public or private agency, organization, or institution for the provision of services for individuals with developmental disabilities.† The Commissioner of Human Services, or the commissioner's designee, is required to designate members of the public to serve as advocates for individuals with developmental disabilities and staff members from the Special Response Unit in the Department of Human Services (DHS) to participate in the visits.† A member of a law enforcement agency also would participate in the visits, which would be conducted to determine whether individuals with developmental disabilities are at risk of, or are being subjected to, abuse, neglect, or exploitation by a caregiver.† Persons conducting the visits are required to report to DHS if they have reasonable cause to believe that an individual has been subjected to abuse, neglect, or exploitation pursuant to section 3 of P.L.2010, c.5 (C.30:6D-75).

†††† The bill also requires the commissioner, or the commissioner's designee, to provide written notification to the guardian or an authorized family member of an individual with a developmental disability receiving services from the Division of Developmental Disabilities of any injury to the individual with a developmental disability, as soon as possible, but no later than one hour after the occurrence of the injury.† Notification is to be in person, or by telephone and the use of other electronic means to follow up the telephoned notification.

†††† Additionally, a State developmental center and private licensed facility for persons with developmental disabilities are to bi-annually host an event in order to provide an opportunity for parents and guardians to share experiences about their family members and wards.† To provide an opportunity for parents and guardians of individuals with developmental disabilities residing in community residence for the developmentally disabled also to share their experiences, the bill requires a provider of these residences to request contact information from each parent or guardian and advise them that, if they agree, the contact information would be exchanged with other parents and guardians of individuals with developmental disabilities residing in the residence.

†††† The bill also amends P.L.2010, c.5 (C.30:6D-73 et seq.), which established the Central Registry of Offenders Against Individuals with Developmental Disabilities (Central Registry) in DHS to prevent caregivers who become offenders against individuals with developmental disabilities from working with individuals with developmental disabilities.

†††† Specifically, the 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 to ensure safety of an individual with a developmental disability in connection with a report of abuse, neglect, or exploitation of an individual with a developmental disability; attend or observe, if attendance would impede an investigation, an investigative interview, upon request; and be notified, along with an authorized family member, of an offending caregiver's inclusion on the Central Registry and of action taken by DHS to remediate a condition.† Under current law: only DHS may request assistance from law enforcement officials; investigative interviews are not open to all guardians; and the notifications to guardians or authorized family members are not required.

†††† The bill further amends the current law to: change from a disorderly persons offense to a fourth degree crime the failure of a case manager or supervisor to report an incident, and makes it a third degree rather than a fourth degree crime if the unreported incident results in death; require notification to the guardian or authorized family member of the name of the individual who is investigating an incident at a developmental center; and provide an opportunity for a guardian or authorized family member to submit information to facilitate an investigation.

†††† The bill also amends the confidentiality provisions of the Central Registry law 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 the Division of Developmental Disabilities.

†††† The bill is designated "Stephen Komninos' Law" to honor the memory of Stephen, an individual with developmental disabilities who died at the age of 22 while under the care of Bancroft Neurohealth in Haddonfield, New Jersey, a private licensed facility for persons with developmental disabilities.† Stephen was a non-verbal young man who was very sociable and suffered through many substantiated incidents of abuse and neglect by caregivers.† Tragically, the last incident resulted in his death.† The bill is intended to encourage caregivers, supervisors, and managers of facilities, as well as the appropriate funding, licensing, regulatory, and law enforcement agencies to protect individuals with developmental disabilities, by providing for more transparency in incident reporting and investigations, the reporting of incidents in a more timely manner, and an environment that does not tolerate abuse, neglect, or exploitation of individuals with developmental disabilities.