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  • Acts
  • 1998
  • Chapter 336 AN ACT RELATIVE TO REPORTS OF ABUSE OF PATIENTS RECEIVING HOME HEALTH CARE.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:


SECTION 1. Section 172C of chapter 6 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in lines 4 and 5, the words "between the ages of eighteen and fifty-nine, inclusive,".

SECTION 2. Said section 172C of said chapter 6, as so appearing, is hereby further amended by adding the following paragraph:-

A violation of this section shall constitute a violation of section 2 of chapter 93A.

SECTION 3. Said chapter 6 is hereby further amended by inserting after section 172D, inserted by section 1 of chapter 64 of the acts of 1998, the following section:-

Section 172E. Notwithstanding any provision of section 172, criminal offender record information shall be available to any long term care facility, as defined in section 72W of chapter 111, for the purpose of obtaining criminal offender record information on an applicant under final consideration for, or an individual currently employed in, a position that involves the provision of direct personal care or treatment to residents of such facility. Any such long term care facility shall obtain all available criminal offender record information from the criminal history systems board on an applicant under final consideration for a position that involves the provision of direct personal care or treatment to residents. A long term care facility which obtains information under this section shall prohibit the dissemination of such information for any purpose other than to further the protection of the elderly or the disabled, including, but not limited to, dissemination among and between long term care facilities.

A long term care facility may employ an individual for a position that involves the provision of direct personal care or treatment to residents of such facility on a conditional basis prior to receiving the results of such individual's criminal offender record check from the criminal history systems board. No long term care facility shall be liable for civil damages to any individual so conditionally employed and subsequently discharged by reason of information received as a result of a criminal offender record information check completed pursuant to this section.

The criminal history systems board may waive or reduce the fee assessable pursuant to section 172A for criminal offender record information made available pursuant to this section.

Notwithstanding the provisions of any general or special law to the contrary, the division of medical assistance shall, subject to appropriation, reimburse long term care facilities for the portion of the costs associated with obtaining criminal offender record information on employees pursuant to this section.

SECTION 4. Chapter 111 of the General Laws is hereby amended by striking out sections 72F to 72L, inclusive, as appearing in the 1996 Official Edition, and inserting in place thereof the following eight sections:-

Section 72F. As used in sections 72F to 72L, inclusive, the following words shall, unless the context clearly requires otherwise, have the following meanings:

"Abuse", the willful infliction of injury, unreasonable confinement, intimidation, including verbal or mental abuse, or punishment with resulting physical harm, pain or mental anguish or assault and battery; provided, however, that verbal or mental abuse shall require a knowing and willful act directed at a specific person.

"Facility", an entity required to be licensed under section 71.

"Home health aide", an employee of a home health agency or a hospice program who provides health services to individuals in a home setting.

"Home health agency", an entity, however organized, whether conducted for profit or not for profit, which is advertised, announced, established or maintained for the purpose of providing health and homemaker services to individuals in a home setting.

"Homemaker", an employee hired by a home health agency or a hospice program to perform homemaking tasks in an individual's home, including the essential nutritional and environmental needs of the individual, such as, meal preparation, cleaning and laundry.

"Hospice program", an entity required to be licensed under section 57D or a hospice service of a hospital licensed under section 51.

"Misappropriation of patient or resident property", the deliberate misplacement, exploitation or wrongful, temporary or permanent use of a patient's or resident's belongings or money without such patient's or resident's consent.

"Mistreatment", the use of medications or treatments, isolation, or physical or chemical restraints which harm or are likely to harm the patient or resident.

"Neglect", failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness.

"Nurse aide", an individual who is not a licensed health professional but is employed by a facility which provides nursing or nursing-related services to residents.

"Patient", an individual who receives health, homemaker or hospice services at home from an individual employed by a home health agency or a hospice program.

"Religious accommodation", no person shall be considered to be abused or neglected for the reason that such person, in accordance with his express or implied consent, is being furnished or relies upon treatment by spiritual means through prayer alone in accordance with a religious method of healing in lieu of medical treatment.

"Resident", an individual who resides in a long term care facility licensed under section 71.

Section 72G. A physician, medical intern or resident, physician assistant, registered nurse, licensed practical nurse, nurse aide, orderly, home health aide, hospice worker, homemaker, administrator, responsible person, medical examiner, dentist, optometrist, optician, chiropractor, podiatrist, coroner, police officer, speech pathologist, audiologist, social worker, pharmacist, physical or occupational therapist or health officer, paid for caring for a patient or resident, who has reasonable cause to believe that a patient or resident has been abused, mistreated or neglected or had property misappropriated, shall immediately report such abuse, mistreatment or neglect or misappropriation of patient or resident property to the department by electronically transmitted report, facsimile or oral communication and, if by oral communication, by making a written report within 48 hours after such oral communication. Any such person required to make such oral and written reports who fails to do so shall be punished by a fine of not more than $1,000.

In addition to those persons required to report pursuant to this section, any other person may make such a report if such person has reasonable cause to believe that a patient or resident has been abused, mistreated or neglected or had property misappropriated. Any person making an oral or written report pursuant to this section shall not be liable in any civil or criminal action by reason of such report if such report was made in good faith. In a civil action commenced against a person making such report, if the court finds in favor of the defendant, the court shall order the plaintiff to pay the defendant reasonable costs and expenses including, but not limited to, attorneys' fees, lost wages and court costs.

No facility, home health agency or hospice program shall discharge, or in any manner discriminate or retaliate against any person who, in good faith, makes such a report or testifies or is about to testify in any proceeding about the abuse, mistreatment or neglect of a patient or resident or the misappropriation of a patient's or resident's property. A facility, home health agency or hospice program which discharges, discriminates or retaliates against such a person shall be liable to the person so discharged, discriminated or retaliated against, for treble damages, costs and attorneys' fees.

A written report shall contain the following information where applicable: (i) the name and gender of the patient or resident; (ii) the home address of the patient; (iii) the name and address of the facility in which the resident resides; (iv) the name and address of the home health agency or hospice program; (v) the age of the patient or resident, if known to the reporter; (vi) the name and address of the reporter and where such reporter may be contacted; (vii) any information relative to the nature and extent of the abuse, mistreatment or neglect or the misappropriation of patient or resident property; (viii) if known to the reporter, any information relative to prior abuse, mistreatment or neglect of such patient or resident or misappropriation of such patient's or resident's property; (ix) the circumstances under which the reporter became aware of the abuse, mistreatment or neglect or misappropriation of property; (x) if known to the reporter, whatever action, if any, was taken to treat or otherwise assist the patient or resident; (xi) any other information which the reporter believes might be helpful in establishing the cause of such abuse, mistreatment or neglect or misappropriation of property and the person or persons responsible therefor; and (xii) such other information as may be required by the department.

Any privilege established by section 20 or section 20B of chapter 233, by court decision or by professional code relating to the exclusion of confidential communications and the competency of witnesses may not be invoked in any civil action arising out of a report made pursuant to this section.

For the purposes of this section, the term "written report" shall include, without limitation, an electronically transmitted report and facsimile.

Section 72H. The department shall, subject to appropriation:

(1) notify the attorney general forthwith upon receipt of an oral or written report made under the provisions of section 72G;

(2) investigate and evaluate the information reported in any such report. Such investigation and evaluation shall be made within 24 hours if the department has reasonable cause to believe the patient's or resident's health or safety is in immediate danger from further abuse or neglect and within seven days for all other such reports. The investigation shall include a visit to the facility, the home health agency, the hospice program or the home of the patient, an interview with the patient or resident allegedly abused, mistreated or neglected or whose property was allegedly misappropriated, a determination of the nature, extent and cause or causes of the injuries, the identity of the person or persons responsible therefor and all other pertinent facts. Such determinations and evaluations shall be in the form of a written report;

(3) evaluate the environment of the facility named in the report and make a written determination of the risk of physical or emotional injury to any other residents in such facility;

(4) forward a copy of the department's written report to the attorney general within a reasonable time after a case has been investigated;

(5) if it has reasonable cause to believe that a patient or resident has died as a result of abuse, mistreatment or neglect, immediately report such death to the attorney general, the district attorney for the county in which such death occurred and the medical examiner as required by section 3 of chapter 38; and

(6) promulgate such regulations as may be necessary to implement the provisions of sections 72F to 72J, inclusive.

Section 72I. The department shall, subject to appropriation, maintain a file of the written reports prepared pursuant to sections 72G and 72H. The report submitted by the mandatory or nonmandatory reporter to the department and the report prepared by the department following its investigation shall be confidential.

The patient or resident or counsel therefor, the reporting person or agency, the appropriate professional board of registration or a social worker assigned to the case may, upon written request and the approval of the commissioner, receive a copy of the department's written report.

The department's written report shall not be made available to any person other than those authorized herein without the written, informed consent of the patient or resident or the written approval of the commissioner or an order of a court of competent jurisdiction.

The reports prepared by the department shall contain no identifying information relating to a patient or resident.

A person who causes any information which is contained in the department's files maintained pursuant to section 72I to be released without authorization to persons or agencies other than those specified in this section shall be punished by a fine of not more than $1,000 or by imprisonment for not more than two and one-half years, or both such fine and imprisonment.

Section 72J. The department shall, subject to appropriation, establish and maintain a registry of all individuals who have met the federal requirements for competency contained in 42 USC {1396r and have been certified as nurse aides for employment in a facility. A facility, other than a rest home, shall only hire or employ on a paid, unpaid, temporary or permanent basis, a nurse aide who is listed in said registry as having demonstrated competency as defined by department regulations.

The registry shall also contain specific documented findings, made in accordance with the provisions of this section, by the department of patient or resident abuse, mistreatment or neglect or misappropriation of patient or resident property involving: (1) an individual listed on the registry, (2) a home health aide, and (3) a homemaker and a brief statement by the individual disputing such findings. In the case of inquiries to the registry concerning a nurse aide, a home health aide or a homemaker, any information disclosed concerning such a finding shall also include disclosure of any statement in the registry relating to the finding or a clear and accurate summary of any such statement. All facilities, home health agencies and homemaker agencies shall contact the registry prior to hiring an employee to ascertain if there is any finding of patient or resident abuse, mistreatment, neglect or misappropriation of patient or resident property against a nurse aide, home health aide or homemaker. No facility, home health agency or homemaker agency shall hire an individual whose name appears in the registry with an adjudicated finding of patient or resident abuse, mistreatment, neglect or misappropriation of patient or resident property if such individual is under a suspension imposed by the department under the terms of this section.

The department shall, after notice to the nurse aide, home health aide or homemaker involved in an allegation of patient or resident abuse, mistreatment or neglect or misappropriation of patient or resident property and a reasonable opportunity for a hearing for the individual to rebut such allegations, make a finding as to the accuracy of the allegations. If the department finds that a nurse aide, home health aide or homemaker has abused, mistreated or neglected a patient or resident or misappropriated patient or resident property, said department shall notify the nurse aide, home health aide or homemaker and the employer thereof and the registry of such finding. The department shall not make a finding that an individual has neglected a patient or resident if the individual demonstrates that such neglect was caused by factors beyond the control of the individual. Upon making such finding, the department may suspend the right of such individual to work as a nurse aide, home health aide or homemaker. The department shall include the terms of any such suspension in the registry and no facility, home health agency or homemaker agency shall hire said individual until such suspension has been served to its completion.

Section 72K. The attorney general may recover a civil penalty of not more than $2,500 if a person abuses, mistreats or neglects a patient or resident or misappropriates patient or resident property. Any action brought by the attorney general pursuant to this section shall be exempt from the provisions of section 60B of chapter 231. The provisions of this section shall not exclude any actions brought by the attorney general or a private party pursuant to chapter 93A or to any action by the department pursuant to this chapter.

Section 72L. Upon a finding by the department of patient or resident abuse, mistreatment or neglect or misappropriation of patient or resident property or a failure to report such instances by a licensed or registered professional, the department or the attorney general shall notify the appropriate board of registration as provided in chapter 112. If a licensed or registered professional has abused, mistreated or neglected a patient or resident or misappropriated patient or resident property or has failed to report such instances, the appropriate board shall take any necessary disciplinary action, including suspension or revocation of such person's license as provided in section 61 of chapter 112, subject to the prescribed procedures.

Section 72L½. A facility, home health agency, hospice program, the directors thereof and, employees and consultants thereof shall be immune from liability as a result of compliance with the provisions of sections 72F to 72L, inclusive.

A facility, home health agency or hospice program as defined in section 72F which is asked to provide an employment reference with respect to a named individual who is either working for or has worked for such facility, home health agency or hospice program shall not be liable for disclosing information related to the named individual's employment history, including whether the former employee was voluntarily or involuntarily released from service and the reasons for such employee's release from employment with the former employer unless it is alleged and proven that the information disclosed was false and disclosed with knowledge that such information was false.

SECTION 5. No long term care facility, as described in section 172E of chapter 6 of the General Laws, shall be required to obtain criminal offender record information as a condition of continued employment of a person who is currently employed in a position set forth in said section 172E as of the effective date of this act.

Approved September 25, 1998.