Law Improves Protections for Individuals with Developmental Disabilities in Community Care; Provides Method for Investigating Allegations of Abuse
(TRENTON) – Legislation sponsored by Assembly Democrats Valerie Vainieri Huttle, Patrick J. Diegnan Jr. and Craig J. Coughlin to create more stringent oversight of community care facilities servicing the developmentally disabled and provide a clear methodology for investigating potential instances of abuse has been signed into law.
The measure (A-2573) is named “Tara’s Law,” in memory of 28-year-old Tara O’Leary, a developmentally disabled woman who had been residing in a licensed community care residence in the state. Over a 2.5-year period, she lost a dangerous amount of weight, failed to attend the majority of her day programs and was finally admitted to a local hospital, weighing only 48 pounds and suffering from dehydration, malnutrition and bedsores. When, despite efforts of the hospital staff, Tara’s condition did not improve, she was disconnected from life support and died.
While Tara was under community care, she underwent a medical examination, as required under current Department of Human Services (DHS) regulations. However, the physician did not take protective custody of her at that time, nor was Tara’s condition reported to DHS.
“It is beyond unconscionable that a developmentally disabled person under community care could literally waste away to nothing without anyone taking any action,” said Vanieri Huttle (D-Bergen), the Assembly Human Services Committee chair. “If we can spare even one family the kind of pain and suffering that Tara’s family went through, then this legislation will have been a success.”
“The tragedy of Tara’s death is that it was preventable,” said Diegnan (D-Middlesex). “When it comes to the developmentally disabled, clear chains of communication are a literal lifeline to survival. Systemic breakdowns in that chain simply cannot be allowed to occur again.”
“Among other things, developmentally disabled individuals rely on their caregivers to be their communications link with the rest of the world,” said Coughlin (D-Middlesex). “When that link breaks, fails or is ignored, tragedies like the one Tara’s family experienced occur. By creating multiple ways to test those links, we can help prevent future miscommunications from becoming tragedies.”
The law provides for oversight of community care residences, which are private homes or apartments in which an adult or family is licensed by, and contracts with, the Department of Human Services to provide up to four individuals with developmental disabilities with care or training, or both. It also provides for oversight of case managers of individuals residing in community care residences and of reimbursement of day program providers, and provides for safeguarding and reporting information which may be necessary for civil or criminal proceedings following an allegation of abuse, neglect, or exploitation. Additionally, physicians and hospitals are authorized to take an individual with a developmental disability into protective custody and report such action to DHS.
Specifically, the law provides that if a required plan of correction, following an annual inspection of a community care residence by DHS, is not implemented within 30 days, an individual with a developmental disability is to be removed from the residence if failure to implement the plan threatens the individual’s health and well-being.
If health, safety, or well-being are threatened because of noncompliance with DHS standards, the individual is to be removed and the licensee subject to negative licensing action – suspension of admissions, issuance of a provisional license, reduction in licensed capacity, or non-renewal, suspension, or revocation of a license. DHS is authorized to impose a $350 penalty per day for a repeated failure to implement a plan of correction, and the penalty is to be used to provide food and care to individuals with developmental disabilities residing in community care residences. If a repeated failure to implement a plan endangers an individual, DHS may, upon notice and after hearing, revoke a license.
The law provides that a licensee of a community care residence is required to annually undergo a physical and mental examination to determine ability to fulfill the duties of a licensee. A physician is to complete a form and provide a statement concerning ability. Failure to provide the documents to DHS may result in the Commissioner of Human Services stopping payment, seeking recovery of payments, and not resuming payments until documents are submitted. If the licensee is unable to provide the documents, DHS is to take negative licensing action. DHS may also require further physical or mental health examinations.
The law also provides that licensees are to annually attend a continuing education program, take an annual two-week leave and demonstrate ability to provide physical assistance that individuals in the residence may require. Licensees are also to notify placing agencies of a lapse in day program attendance that exceeds five days, except for vacations or medical reasons. It limits provisional licenses to operate a community care residence to a three-month, rather than the current six-month period.
The law amends current law concerning reporting and investigations of allegations of abuse, neglect and exploitation of individuals with developmental disabilities. If a case manager or supervisor fails to report, the person is guilty of a disorderly person’s offense – punishable by a term of imprisonment of not more than six months, a fine of not more than $1,000, or both – unless the incident resulted in death, which would be a fourth degree crime punishable by a term of imprisonment of not more than 18 months, a fine of not more than $10,000, or both. A $350 penalty is to be imposed for each day of non-reporting, and a person who is charged with failure to report is to be temporarily assigned to other duties and terminated from employment if convicted.
With regard to investigations, the law requires all unsubstantiated incidents to be reported. DHS is to ensure records are safeguarded from loss and to contact the Office of the Attorney General, which is to determine whether to participate in an investigation. Reports of investigations by the Special Response Unit in DHS are to include the role of a case manager or supervisor and whether civil or criminal action should be pursued. Summaries of report conclusions are to be provided to a guardian or authorized family member, and SRU is to issue an annual report about investigations, to be available on the DHS website.
The law provides that a provider of a day program is to submit to the Division of Developmental Disabilities (DDD) a copy of its monthly attendance report. If a provider seeks reimbursement for an individual who has not attended the program for 30 days, the provider is subject to a $1,000 per day penalty, per individual. Providers are also to notify regional office administrators of non-attendance. DDD is to provide a guardian or authorized family member with information pertaining to attendance, and provide SRU with a sampling of monthly attendance reports for SRU to audit. Additionally, a regional office administrator is also to biannually conduct on-site audits of the reports.
And the law provides a $500 penalty for physicians or chief executive officers of hospitals who fail to take an individual into protective custody if there is suspicion that an injury was inflicted by a licensee of a community care residence. It also imposes a fine of $250 for the first and $500 for the second offense of including an individual’s Social Security number on an individualized habilitation plan (IHP). Copies of IHPs are to be provided to the licensee of a community care residence, the case manager, the supervisor, and a guardian or authorized family member if the guardian or family member was unable to attend a plan development, revision, or review.