Christie CV’s Stephen Komninos Bill
After passing the Assembly and Senate unanimously, and being sent the Governor’s Office, NJACP has been working to have the Governor include NJACP recommendations in the Stephen Komninos legislation via a conditional veto (CV). The Governor did conditionally veto the legislation; however, without many of the changes NJACP, ABCD, and The ARC of New Jersey expected. Given the politically charged circumstances surrounding the legislation over the past seven years, the Governor and the Legislature wanted a final bill the small group of very vocal parents would support. In fact, these same parents fought having any amendments to the legislation. Senators Sweeney, Beck, and Vitale, and Assemblywoman Vanieri Huttle, among others, conceded to the demands of the parents despite having agreed to an amended version of the bill proposed by the three provider associations.
This bill, with its limited amendments, will result in increased administrative and other burdens for providers. The three provider associations aggressively advocated for amendments over the past several years. Yet the Legislature unanimously approved the bill, and Governor Christie was only willing to make minor amendments so as to appease the parents. Reflected below are some of the amendments that have been made, as well as some of the original amendments that were supported by the associations, but were not approved by the Governor.
- There were three areas in particular NJACP advocated for stronger amendments, including, the requirement for providers to report minor, moderate and major injuries to guardians. This provision remained. However, past versions of the bill required reporting of all incidents to the guardian and the DHS. The DHS would then be required to visit providers and verify each incident.
- The Governor amended the bill to:
- Lengthen the period of time providers have to call guardians from one hour to two hours;
- Allow for more time for reporting (up to eight hours) if there are extenuating circumstances (that will have to be reported to the Commissioner and to guardians).
- Forty-eight hour verification of incidents by DHS will occur only for residential providers, and will only apply to moderate or major injuries. Prior to the conditional veto, the bill required verification of all injuries in residential and day programs.
- The bill requires only random sample testing annually, with the number of employees determined at the discretion of the provider. Drug testing, which many agencies advised they do at time of hire, will now be paid for by DHS. Previous versions of the bill required providers to pay for the tests and test all employees annually.
- The bill requires two unannounced, random visits each year. The original bill required six bi-monthly, unannounced visits.
- Guardians will have access to all records related to an investigation if they can show the well-being of an individual depends on this access. Furthermore, guardians may be present during their loved ones interview if DHS determines it will not impede the investigative process.
The original bills permitted guardians and family members to be present during the entire investigative process and automatically receive all records from an investigation. NJACP continues to be concerned, however, with allowing guardians’ access to any investigative information as it may potentially be used in litigation.
The Governor’s Conditional Veto is attached. The next step in the process will be a vote in the Assembly (House the bill originated in) to accept the Governor’s recommendations and then the bill will be signed by the Governor. The Assembly has a voting session on Monday, July 31st and the bill is on the board list for a full Assembly vote. It is expected the Assembly will approve the Governor’s amendments.
Additional Noteworthy Changes–Stephen Komninos (A-2503/S-516) bill as conditionally vetoed by Governor Christie.
- Increase of Criminal Penalties:
- Section increasing the severity of the crimes for abuse was deleted.
- Unannounced, Random Visits:
- 2 unannounced site visits remain for residential settings. For group homes, the visit would be conducted by an employee assigned to a resident of the group home; for supervised apartments, the employee would be unfamiliar with the person.
- Day programs were excluded from this provision.
- The provider of a community residential or day program must provide notification of any major, moderate, or minor physical injury.
- Notification must be provided as follows:
- Within two hours. In the case of an extraordinary circumstance that prevents notification, the provider must provide notification as soon as possible, but no later than eight hours after the incident.
- If there are extraordinary circumstances, the provider must provide a written explanation to the Commissioner, the guardians of the client, and to any family members that have requested such notifications.
- Notification must be in person or via telephone; email may only be used in follow-up communications about the incident.
- Notification will not be required if the guardian or family member expresses they do not wish to receive notification.
- Verification of Incident Visits from DHS:
- The DHS is required to visit a residential program within 48 hours of an incident of moderate or major physical abuse, neglect, or exploitation.
- Day programs were removed from this requirement.
- Drug Testing:
- Individuals considered for employment within an agency are required to undergo drug testing for controlled dangerous substances.
- Once a year, providers are required to carry out random drug testing. It is at the discretion of the provider to determine the number of employees required to participate in random drug tests.
- There are options provided in the bill, other than termination, for employees that test positive for drugs; including referral to a drug treatment center.
- Drug tests are at the expense of the DHS.
- Penalty for Failure to Provide Notification of Injuries Within Required Timeframe for Providers:
- Any staff member that does not provide notification consistent with the requirements of the bill would be fined $5K for the first offense, $10K for the second offense, and $25K for the third and each subsequent offense thereafter. Penalties collected will be reinvested in training for caregivers.
- Contact Information for Families – Residential and Day Programs:
- Providers are required to ask family members if they would like to receive the contact information for other people residing in the same home, for residential programs, or for day programs. If requested, providers must exchange contact information for all parents or guardians in the home or program unless a request has been made to not release an individual’s information (or information of their family or guardian).
- Requirement to Report Suspected Abuse:
- Failure to report suspected abuse is considered a disorderly persons offense for those employed by a program, volunteers, or the provider.
- A DHS case manager’s or supervisor’s failure to report is considered a crime of the third degree.
- Regardless of the assessment of a personal penalty, a person convicted under this section is liable for $350/day for each day the abuse was not reported. Termination is also possible.
- Law Enforcement:
- Law enforcement assistance may be requested; however, the requirement to receive assistance from law enforcement that is specially trained with people with disabilities was removed.
- The bill removes the requirement that guardians or family members will receive a copy of the summary that includes all documents and records from an investigation. The amendments provide that a parent or guardian is entitled only to a summary of the investigation; and they may attend the interview of their loved one and stop the interview at any time. Their attendance, however, is only allowed if it is determined by the DHS that this will not impede the investigation.
- A guardian or family member may request a copy of all records associated with the investigation if the information is necessary for the provision of care of the individual, and is in the best interest of the individual.
- The person with a developmental disability may request that family members not be present in interviews or receive information.
- All information connected to an investigation will remain confidential except in connection with a guardian attending an interview.
- Review by DHS Commissioner:
- All reports of abuse, substantiated and unsubstantiated, will be reviewed by the Commissioner of DHS within fourteen days of the incident (extended from seven to fourteen days).
- No more than thirty days after the investigation, the Special Investigations Unit will issue a report with findings and recommendations for any additional action against employees of an agency or case managers of the DHS (timeframe extended from fourteen to thirty days).
- Central Registry:
- Guardians or family members will be updated as to an offender’s inclusion on the registry, and any other actions taken in response to a report of abuse or neglect.
Please note that regulations will need to be promulgated, and DHS may have some flexibility on how it implements the provisions in the bill. The bill is effective seven months after enactment.