“Burt’s Law” Places New and Enhanced Responsibilities on Employees and Volunteers In Facilities Providing Care for Those with Mental and Developmental Disabilities and Substance Abuse Disorders

by Williams Mullen

According to press reports across North Carolina, Burt Powell was a resident of a group home for adults with mental disabilities.  His parents placed him in the facility to increase his chances of achieving a more independent lifestyle.  But, after living in the facility for several years, Burt told his parents that he had been sexually abused and victimized by one of the group home workers tasked with caring for him.

The health care worker died before legal action could be taken against him.  But, Burt’s family, law enforcement officials and political leaders across North Carolina pushed for legislation designed to address what happened to Burt.  On May 26, 2015, Governor McCrory signed Senate Bill 445 which increases the penalties for abuse of residents in facilities that care for those with mental and developmental disabilities and substance abuse disorders.  The new law not only significantly modifies the severity of potential penalties but also imposes additional affirmative duties on facilities, their employees and facility volunteers. While Burt’s Law targets only specific providers, the enactment of the law reminds all providers of their responsibilities to properly train staff and to allow for and react appropriately to incidents within their facilities.  

Burt’s Law increases the potential penalty on any “employee or volunteer” who “knowingly causes pain or injury” to a client of the facility by designating the offense as a Class A-1 misdemeanor.  Under the North Carolina Structured Sentencing Guidelines, a violation of this provision can now be punished by active jail time ranging from 1 to 150 days depending upon the offender’s criminal record.  And an employee or volunteer who “borrows or takes personal property from a client” is likewise guilty of a misdemeanor punishable by jail time.

Burt’s Law adds a new sexual abuse reporting requirement to North Carolina law.  In Burt’s case, staff members apparently failed to report the sexual abuse of Burt out of fear of losing their jobs.  The law as amended now imposes a reporting requirement on any employee or volunteer who “witnesses” a client being sexually abused.  Employees or volunteers must report the offense within 24 hours to: (1) the Department of Social Services; (2) the District Attorney in the district where the facility serves the client; or (3) an appropriate law enforcement agency in the city or county where the facility serves the client.  The failure to report such an offense to one of the designated authorities is classified as a Class A-1 misdemeanor, again carrying jail time as a possible punishment.  The Department of Social Services and the District Attorney are now required by law to investigate any report of sexual abuse received under this provision.

“Burt’s Law” doesn’t stop there.  The new law also enhances the penalties for any employee’s or volunteer’s failure to report violations to the “authorized personnel designated by the facility” to receive such reports, and the law re-designates the failure to make an internal facility report from a Class 3 misdemeanor to a Class 1 misdemeanor.  This penalty reclassification means that jail time, rather than just a fine, is now authorized as punishment in instances in which a report is not made.  Facilities are still charged with a duty to investigate or provide for the investigation of all reports made to them under the law.

Those involved in providing residential and in-patient services to residents with mental and developmental disabilities and substance abuse disorders must take action immediately to comply with this law.  The enhanced penalties are effective immediately.  The sexual abuse reporting requirements become effective on December 1 of this year. 

With the passage of Burt’s Law, all employees and volunteers should receive updated training on the law’s requirements and on the facility’s internal procedures for compliance.  At a minimum, employees and volunteers should know the facility’s designated point of contact for reporting and should fully understand the new obligation to report any type of sexual abuse or misconduct to the statutorily designated authorities within the 24 hour time period.  Burt’s Law was intended to, and hopefully will, change for the better the conditions within the facilities that care for a vulnerable population in our State.  Notwithstanding the laudable intentions behind the law, it is clear that responding to the law will present further compliance challenges for the providers that serve residents in a highly regulated sector of our health care industry.  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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