House Bill No. 5198
Public Act No. 04-12
AN ACT CONCERNING THE OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES.
Be it enacted by the Senate and House of Representatives in General Assembly convened:
Section 1. Section 46a-11a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2004):
For the purposes of sections 46a-11a to 46a-11g, inclusive, as amended by this act:
[(a)] (1) "Abuse" means the wilful infliction of physical pain or injury or the wilful deprivation by a caretaker of services which are necessary to the person's health or safety;
[(b)] (2) "Neglect" means a situation where a person with mental retardation either is living alone and is not able to provide for himself the services which are necessary to maintain his physical and mental health or is not receiving such necessary services from the caretaker;
[(c)] (3) "Caretaker" means a person who has the responsibility for the care of a person with mental retardation as a result of a family relationship or who has assumed the responsibility for the care of the person with mental retardation voluntarily, by contract or by order of a court of competent jurisdiction. Neither a guardian nor a conservator need be a caretaker;
[(d)] (4) "Conservator" means a conservator of the person or of the estate appointed pursuant to section 45a-644 to 45a-662, inclusive;
[(e)] (5) "Director" means the director of the Office of Protection and Advocacy for Persons with Disabilities;
[(f)] (6) "Facility" means any public or private hospital, nursing home facility, training school, regional facility, group home, community training home, school or other program serving persons with mental retardation;
[(g)] (7) "Guardian" means the guardian or limited guardian of a person with mental retardation appointed pursuant to sections 45a-668 to 45a-684, inclusive, as amended;
[(h)] (8) "Person with mental retardation" means a person who: (A) has mental retardation, as defined in section 1-1g, [who] (B) is at least the age of eighteen and under the age of sixty, except for purposes of subsection (b) of section 46a-11c, as amended by this act, is eighteen years of age or older, and [who] (C) is substantially unable to protect himself from abuse and includes all such persons living in residential facilities under the jurisdiction of the Department of Mental Retardation;
[(i)] (9) "Protective services" means services provided by the state or any other governmental or private organization or individual which are necessary to prevent abuse or neglect. Such services may include the provision of medical care for physical and mental health needs; the provision of support services in the facility, including the time limited placement of department staff in such facility; the relocation of a person with mental retardation to a facility able to offer such care pursuant to section 17a-210, as amended, 17a-274, as amended, or 17a-277, as applicable; assistance in personal hygiene; food; clothing; adequately heated and ventilated shelter; protection from health and safety hazards; protection from maltreatment, the result of which includes, but is not limited to, malnutrition, deprivation of necessities or physical punishment; and transportation necessary to secure any of the above-stated services, except that this term shall not include taking such person into custody without consent; and
[(j)] (10) "Commissioner" means the Commissioner of Mental Retardation.
Sec. 2. Subsection (a) of section 46a-11b of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2004):
(a) Any physician or surgeon licensed under the provisions of chapter 370, any resident physician or intern in any hospital in this state, whether or not so licensed, any registered nurse, any person paid for caring for persons in any facility and any licensed practical nurse, medical examiner, dental hygienist, dentist, occupational therapist, optometrist, chiropractor, psychologist, podiatrist, social worker, school teacher, school principal, school guidance counselor, school paraprofessional, mental health professional, physician assistant, licensed or certified substance abuse counselor, licensed marital and family therapist, speech pathologist, clergyman, police officer, pharmacist, physical therapist, licensed professional counselor or sexual assault counselor or battered women's counselor as defined in section 52-146k who has reasonable cause to suspect or believe that any person with mental retardation has been abused or neglected shall, [within five calendar days] as soon as practicable but not later than seventy-two hours after such person has reasonable cause to suspect or believe that a person with mental retardation has been abused or neglected, report such information or cause a report to be made in any reasonable manner to the director or persons the director designates to receive such reports. Such initial report shall be followed up by a written report [within five additional] not later than five calendar days after the initial report was made. Any person required to report under this subsection who fails to make such report shall be fined not more than five hundred dollars.
Sec. 3. Section 46a-11c of the general statutes, as amended by section 3 of public act 03-146, is repealed and the following is substituted in lieu thereof (Effective October 1, 2004):
(a) The director, upon receiving a report that a person with mental retardation allegedly is being or has been abused or neglected, shall make an initial determination whether such person has mental retardation, shall determine if the report warrants investigation and shall cause, in cases that so warrant, a prompt, thorough evaluation to be made to determine whether the person has mental retardation and has been abused or neglected. [In cases where there is a death of a person with mental retardation for whom the Department of Mental Retardation has direct or oversight responsibility for medical care, and there are allegations that such death may be due to abuse or neglect, the director shall conduct an investigation to determine whether abuse or neglect occurred, except as may be otherwise required by court order. The director, in consultation with the Commissioner of Mental Retardation, shall establish protocols for conducting such investigations. ] For the purposes of sections 46a-11a to 46a-11g, inclusive, as amended by this act, the determination of mental retardation may be made by means of a review of records and shall not require the director to conduct a full psychological examination of the person. Any delay in making such determination of mental retardation shall not delay the investigation of abuse or neglect or recommendation of provision of protective services. The evaluation shall include a visit to the named person with mental retardation and consultation with those individuals having knowledge of the facts of the particular case. All state, local and private agencies shall have a duty to cooperate with any investigation conducted by the Office of Protection and Advocacy for Persons with Disabilities under this section, including the release of complete client records for review, inspection and copying, except where the person with mental retardation refuses to permit his or her record to be released. The director shall have subpoena powers to compel any information related to such investigation. All client records shall be kept confidential by said office. Upon completion of the evaluation of each case, written findings shall be prepared which shall include a determination of whether abuse or neglect has occurred and recommendations as to whether protective services are needed. The director, except in cases where the parent or guardian is the alleged perpetrator of abuse or is residing with the alleged perpetrator, shall notify the parents or guardian, if any, of the person with mental retardation if a report of abuse or neglect is made which the director determines warrants investigation. The director shall provide the parents or guardians who the director determines are entitled to such information with further information upon request. The person filing the report of abuse or neglect shall be notified of the findings upon request.
(b) In cases where there is a death of a person with mental retardation for whom the Department of Mental Retardation has direct or oversight responsibility for medical care, and there is reasonable cause to suspect or believe that such death may be due to abuse or neglect, the Commissioner of Mental Retardation shall notify the director or the director's designee not later than twenty-four hours after the commissioner determines that there is reasonable cause to suspect or believe that such death may be due to abuse or neglect and the director shall conduct an investigation to determine whether abuse or neglect occurred, except as may be otherwise required by court order. The director, in consultation with the Commissioner of Mental Retardation, shall establish protocols for conducting such investigations.
[(b)] (c) The director shall maintain a state-wide registry of the reports received, the evaluation and findings and actions recommended.
[(c)] (d) Neither the original report nor the evaluation report of the investigator which includes findings and recommendations shall be deemed a public record for purposes of section 1-210, as amended. The name of the person making the original report shall not be disclosed to any person unless the person making the original report consents to such disclosure or unless a judicial proceeding results therefrom.
Sec. 4. Subsection (c) of section 46a-11e of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2004):
(c) If the director commences an investigation and finds that the person with mental retardation is seriously in need of immediate protective services, he shall report the facts of the case to the commissioner and the commissioner shall not delay the commencement of protective services pending the full evaluation report. If the commissioner's proposed action involves the removal from his home of a person with mental retardation under guardianship or of a person with mental retardation who is competent and does not voluntarily consent to his removal, the commissioner shall follow the procedures mandated in [subsection (k) of section 19a-448] section 17a-274, as amended. [, including the filing of an application in the Court of Probate pursuant to subsection (b) of section 46a-11a. ]
Approved April 16, 2004