SECOND REGULAR SESSION

SENATE BILL NO. 470

89TH GENERAL ASSEMBLY


INTRODUCED BY SENATOR SCHNEIDER.

Pre-filed December 1, 1997, and 1,000 copies ordered printed.

TERRY L. SPIELER, Secretary.

S2496.01I


AN ACT

To repeal sections 630.167, 630.170 and 630.710, RSMo Supp. 1997, relating to the confidentiality of certain mental health records, and to enact in lieu thereof three new sections relating to the same subject.


Be it enacted by the General Assembly of the State of Missouri, as follows:

Section A.  Sections 630.167, 630.170 and 630.710, RSMo Supp. 1997, are repealed and three new sections enacted in lieu thereof, to be known as sections 630.167, 630.170 and 630.710, to read as follows:

630.167.  1.  Upon receipt of a report, the department or its agents, contractors or vendors or the department of health, if such facility or program is licensed pursuant to chapter 197, RSMo, shall initiate an investigation within twenty-four hours.

2.  If the investigation indicates possible abuse or neglect of a patient, resident or client, the investigator shall refer the complaint together with [his] the investigator's report to the department director for appropriate action.  If, during the investigation or at its completion, the department has reasonable cause to believe that immediate removal from a facility not operated or funded by the department is necessary to protect the residents from abuse or neglect, the department or the local prosecuting attorney may, or the attorney general upon request of the department shall, file a petition for temporary care and protection of the residents in a circuit court of competent jurisdiction.  The circuit court in which the petition is filed shall have equitable jurisdiction to issue an ex parte order granting the department authority for the temporary care and protection of the resident for a period not to exceed thirty days.

3.  (1)  Reports referred to in section 630.165 and the investigative reports referred to in this section shall be confidential, shall not be deemed a public record, and shall not be subject to the provisions of section 109.180, RSMo, or chapter 610, RSMo; except that[,]: complete copies all such reports shall be open and available to the parents or other guardian of the patient, resident, or client who is the subject of such report[.], except that the names and any other descriptive information of the complainant or other person mentioned in the reports shall not be disclosed unless such complainant or person specifically consents to such disclosure.  All reports referred to in this section shall be admissible in any judicial proceedings or hearing in accordance with section 36.390, RSMo, or any administrative hearing before the director of the department of mental health, or the director's designee.  All such reports may be disclosed by the department of mental health to law enforcement officers and public health officers, but only to the extent necessary to carry out the responsibilities of their offices, and to the department of social services, and to boards appointed pursuant to sections 205.968 to 205.990, RSMo, that are providing services to the patient, resident or client as necessary to report or have investigated abuse, neglect, or rights violations of patients, residents or clients provided that all such law enforcement officers, public health officers, department of social services' officers and boards shall be obligated to keep such information confidential[.  The name of the complainant or any person mentioned in the reports shall not be disclosed unless such complainant or person specifically requests such disclosure or unless a judicial proceeding results therefrom];

(2)  Except as otherwise provided in this section, the proceedings, findings, deliberations, reports and minutes of [investigators or of] committees of health care professionals as defined in section 537.035, RSMo, or mental health professionals as defined in section 632.005, RSMo, who have the responsibility to evaluate, maintain, or monitor the quality and utilization of mental health services[, or to investigate reports of abuse or neglect or incident reports or complaints of substandard, inadequate or inappropriate care] are privileged and shall not be subject to the discovery, subpoena or other means of legal compulsion for their release to any person or entity or be admissible into evidence into any judicial or administrative action for failure to provide adequate or appropriate care.  Such committees may exist, either within department facilities or its agents, contractors, or vendors, as applicable.  Except as otherwise provided in this section, no person who was in attendance at any investigation or committee proceeding shall be permitted or required to disclose any information acquired in connection with or in the course of such proceeding or to disclose any opinion, recommendation or evaluation of the committee or board or any member thereof; provided, however, that information otherwise discoverable or admissible from original sources is not to be construed as immune from discovery or use in any proceeding merely because it was presented during proceedings before any committee or in the course of any investigation, nor is any member, employee or agent of such committee or other person appearing before it to be prevented from testifying as to matters within their personal knowledge and in accordance with the other provisions of this section, but such witness cannot be questioned about the testimony or other proceedings before any investigation or before any committee;

(3)  Nothing in this section shall limit authority otherwise provided by law of a health care licensing board of the state of Missouri to obtain information by subpoena or other authorized process from investigation committees or to require disclosure of otherwise confidential information relating to matters and investigations within the jurisdiction of such health care licensing boards; provided, however, that such information, once obtained by such board and associated persons, shall be governed in accordance with the provisions of this subsection;

(4)  Nothing in this section shall limit authority otherwise provided by law in subdivisions (5) and (6) of subsection 2 of section 630.140 concerning access to records by the entity or agency authorized to implement a system to protect and advocate the rights of persons with developmental disabilities under the provisions of 42 U.S.C. 6042 and the entity or agency authorized to implement a system to protect and advocate the rights of persons with mental illness under the provisions of 42 U.S.C. 10801.  In addition, nothing in this section shall serve to negate assurances that have been given by the governor of Missouri to the U.S. Administration on Developmental Disabilities, Office of Human Development Services, Department of Health and Human Services concerning access to records by the agency designated as the protection and advocacy system for the state of Missouri.  However, such information, once obtained by such entity or agency, shall be governed in accordance with the provisions of this subsection.

4.  Anyone who makes a report pursuant to this section or who testifies in any administrative or judicial proceeding arising from the report shall be immune from any civil liability for making such a report or for testifying unless such person acted in bad faith or with malicious purpose.

5.  Within five working days after a report required to be made [under] pursuant to this section is received, the person making the report shall be notified in writing of its receipt and of the initiation of the investigation.

6.  No person who directs or exercises any authority in a residential facility, day program or specialized service shall evict, harass, dismiss or retaliate against a patient, resident or client or employee because he or she or any member of his or her family has made a report of any violation or suspected violation of laws, ordinances or regulations applying to the facility which he or she has reasonable cause to believe has been committed or has occurred.

7.  Any person who is discharged as a result of an administrative substantiation of allegations contained in a report of abuse or neglect may, after exhausting administrative remedies as provided in chapter 36, RSMo, appeal such decision to the circuit court of the county in which such person resides within ninety days of such final administrative decision.  The court may accept an appeal up to twenty-four months after the party filing the appeal received notice of the department's determination, upon a showing that:

(1)  Good cause exists for the untimely commencement of the request for the review;

(2)  If the opportunity to appeal is not granted it will adversely affect the party's opportunity for employment; and

(3)  There is no other adequate remedy at law.

630.170.  1.  A person convicted of any crime under section 630.155[,] or 630.160 [or 630.165] shall be disqualified from holding any position in any public or private facility or day program operated, funded or licensed by the department or in any mental health facility or mental health program in which people are admitted on a voluntary or involuntary basis or are civilly detained pursuant to chapter 632, RSMo.

2.  A person convicted of any felony offense against persons as defined in chapter 565, RSMo; of any felony sexual offense as defined in chapter 566, RSMo; of any felony offense defined in section 568.045, 568.050, 568.060, 569.020, 569.030, 569.040 or 569.050, RSMo, or of an equivalent felony offense shall be disqualified from holding any direct-care position in any public or private facility, day program, residential facility or specialized service operated, funded or licensed by the department or any mental health facility or mental health program in which people are admitted on a voluntary basis or are civilly detained pursuant to chapter 632, RSMo.

3.  Any person disqualified under the provisions of subsections 1 or 2 of this section may appeal the disqualification to the director of the department or the director's designee.  The request shall be written and may not be made more than once every twelve months.  The request may be granted by the director or designee if in the judgment of the director or designee a clear showing has been made by written submission only, that the person will not commit any additional acts for which the person had originally been disqualified for or any other acts that would be harmful to a patient, resident or client of a facility, program or service.  The director or designee may grant the appeal subject to any conditions deemed appropriate and failure to comply with such terms may result in the person again being disqualified.  Decisions by the director or designee under the provisions of this subsection shall not be subject to appeal.  The right to appeal under this subsection shall not apply to persons convicted of any crime under the provisions of chapter 566 or 568, RSMo, or sections 565.020 or 565.021, RSMo.

630.710.  1.  The standards contained in the rules shall particularly provide for the following:

(1)  Admission and commitment criteria, which shall be based upon diagnoses;

(2)  Care, treatment, habilitation or rehabilitation;

(3)  General medical and health care;

(4)  Adequate physical plant facilities, including fire safety, housekeeping and maintenance standards;

(5)  Food service facilities;

(6)  Safety precautions;

(7)  Drugs and medications;

(8)  Uniform system of recordkeeping;

(9)  Resident or client rights and grievance procedures;

(10)  Adequate staff.

2.  [By August 28, 1997, the rules shall require a criminal record review from the highway patrol for all staff in the residential facility and day program who have unsupervised contact with persons affected by a mental disorder, mental illness, mental retardation or a developmental disability.

3.]  The rules containing the standards for living units within facilities or homes shall provide for such classifications of the living units as are small enough to insure programs based upon the personal needs of the resident as determined by individualized habilitation or treatment plans.  The units may include distinct parts of other facilities such as wards, wings or floors.


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