Session Laws

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. The General Laws are hereby amended by inserting after chapter 19A the following chapter:- `tuc CHAPTER 19B. Disabled Persons Protection Commission.

Section 1. As used in this chapter, the following words shall, unless the context requires otherwise, have the following meanings:-

"Abuse", an act or omission which results in serious physical or emotional injury to a disabled person; provided, however, that no person shall be considered to be abused for the sole reason that such person is being furnished or relies upon treatment in accordance with the tenets and teachings of a church or religious denomination by a duly accredited practitioner thereof.

"Caretaker", a disabled person's parent, guardian or other person or agency responsible for a disabled person's health or welfare, whether in the same home as the disabled person, a relative's home, a foster home or any other day or residential setting.

"Commission", the disabled persons protection commission established pursuant to section two.

"Disabled person", a person between the ages of eighteen to fifty-nine, inclusive, who is mentally retarded, as defined by section one of chapter one hundred and twenty-three, or who is otherwise mentally or physically disabled and as a result of such mental or physical disability is wholly or partially dependent on others to meet his daily living needs.

"General counsel" or "counsel", the general counsel of the executive office of human services.

"Mandated reporter", any physician, medical intern, hospital personnel engaged in the examination, care or treatment of persons, medical examiner, dentist, psychologist, nurse, chiropractor, podiatrist, osteopath, public or private school teacher, educational administrator, guidance or family counselor, day care worker, probation officer, social worker, foster parent, police officer or person employed by a state agency within the executive office of human services as defined by section sixteen of chapter six A, or employed by a private agency providing services to disabled persons who, in his professional capacity shall have reasonable cause to believe that a disabled person is suffering from a reportable condition.

"Reportable condition", a serious physical or emotional injury resulting from abuse, including unconsented to sexual activity.

"State agency", any agency of the commonwealth that provides services or treatment to disabled persons, including private agencies providing such services or treatment pursuant to a contract or agreement with an agency of the commonwealth.

Section 2. There is hereby established within, but not subject to the control of, the executive office of human services, a commission for the protection of disabled persons, to be known as the disabled persons protection commission. The purpose of the commission shall be to provide for the investigation and remediation of instances of abuse of disabled persons in the commonwealth. The commission shall consist of three members to be appointed by the governor, one of whom he shall designate as chairman. Members of the commission shall serve for terms of three years. Any member whose term has expired shall continue to serve until such member's successor has been duly appointed and qualified. Any member shall be eligible for reappointment. Members may be removed by the governor for willful misconduct or neglect of duty or for inability to perform the powers and duties of the office. Members of the commission shall be compensated for work performed for the commission at such rate as the commissioner of administration shall determine and shall be reimbursed for their expenses.

Section 3. The commission shall have the following powers and duties:-

(a) to employ, subject to appropriation, such staff as shall be necessary to carry out its duties pursuant to this chapter. Such staff shall serve at the pleasure of the commission and shall not be subject to the provisions of chapter thirty-one;

(b) to promulgate, pursuant to the provisions of chapter thirty A, rules and regulations to carry out the purposes of this chapter, including rules governing the conduct of hearings conducted pursuant to section eight;

(c) to provide for the investigation of alleged abuse of disabled persons initiated pursuant to section four;

(d) to designate other state agencies within the executive office of human services for the furnishing of protective services in accordance with the provisions of section six;

(e) to issue reports, including findings of facts and recommendations, upon concluding an investigation, and to refer matters upon which investigations have been completed pursuant to section nine;

(f) to take appropriate measures to notify state agencies, disabled persons and other interested parties of the provisions of this chapter;

(g) to maintain files, records of investigations and reports which shall be retained and made available in accordance with the provisions of chapters sixty-six and sixty-six A;

(h) to develop standards for deferral of investigations to the executive office of human services and to agencies within the executive office of human services under section twelve and in consultation with the secretary of the executive office of human services.

The commission shall promulgate rules and regulations establishing procedures to exclude personally identifiable information regarding the subjects of investigations and to carry out the responsibilities of this chapter in such a way as to disclose as little personally identifiable information as possible.

Section 4. Upon receipt of a report of abuse of a disabled person, the commission shall:-

(a) refer immediately any such reports which allege the occurrence of abuse that is subject to the provisions of sections fourteen to twenty-six, inclusive, of chapter nineteen A, sections seventy-two F to seventy-two L, inclusive, of chapter one hundred and eleven, or sections fifty-one A to fifty-one F, inclusive, of chapter one hundred and nineteen to the appropriate agency for the implementation of measures provided in said sections.

(b) refer immediately any such reports, which allege the occurrence of abuse to a disabled person whose caretaker is a state agency, to an investigator of the commission and the general counsel of the office of the secretary of human services, or his designee, within such office and to the department within the executive office of human services which provides or which has contracted for the provision of services to the disabled person. Said department shall investigate such abuse as provided in section five, subject to the oversight of said office and the commission and subject to the power of the commission to conduct its own investigation.

(c) refer immediately any such reports which allege the occurrence of abuse to a disabled person whose caretaker is other than a state agency to the general counsel or to the department of mental health, in those cases where the disabled person is mentally retarded or otherwise mentally disabled, or to the Massachusetts rehabilitation commission, in those cases where the disabled person is physically disabled and said counsel or the department of mental health or the department of public health shall immediately, upon such referral, designate an investigator who shall investigate such abuse as provided in section five.

Section 5. Upon receipt of a report of abuse of a disabled person, an investigator designated by the commission, the general counsel, or a department within the executive office of human services shall:-

(1) Investigate and evaluate the information reported in said reports. Said investigation and evaluation shall be made within twenty-four hours if the commission, counsel or department of mental health or department of public health determines that there is reasonable cause to believe the disabled person's health or safety is in immediate danger from further abuse and within ten calendar days for all other such reports. The investigation shall include a visit to the disabled person's residence and day program, if any, an interview with the disabled person allegedly abused, 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 writing and shall be immediately forwarded to the commission, to the general counsel and to the department of mental health and the department of public health.

(2) Evaluate the environment of the facility named in the report, if any, and make a written determination of the risk of physical or emotional injury to any other residents or clients in the same facility.

(3) Forward to the commission, the general counsel, the department of mental health and the department of public health within a reasonable time after a case is initially reported pursuant to section four, a summary of the findings and recommendations on each case.

(4) If there is reasonable cause to believe that a disabled person has died as a result of abuse, immediately report said death to the commission, the general counsel, the attorney general, the district attorney for the county in which such death occurred, and to the medical examiner as required by section six of chapter thirty-eight.

Section 6. The commission, acting through state agencies within the executive office of human services designated by the commission, for the purpose of furnishing protective services, the general counsel acting through state agencies within the executive office of human services designated by the secretary of human services for the purpose of furnishing protective services, the department of mental health and the department of public health shall, as necessary to prevent further abuse in cases investigated by said commission, counsel or department:-

(1) furnish protective services to a disabled person either with his consent or with the consent of his current guardian;

(2) petition the court for appointment of a conservator or guardian or for issuance of an emergency order for protective services as provided in section seven; or

(3) furnish protective services to a disabled person on an emergency basis as provided in section seven.

Section 7. (a) If the commission, the general counsel, the department of mental health or the department of public health, has reasonable cause after initiation of an investigation to believe that a disabled person is suffering from abuse and lacks the capacity to consent to the provision of protective services, such commission, counsel or department may petition the court for a finding that the disabled person is incapable of consenting to the provision of protective services. Said petition shall set forth the specific facts upon which said commission, counsel or department relied in making such determination. The court shall hold a hearing on the matter within fourteen days of the filing of the petition. The court shall give notice to the disabled person who is the subject of the petition at least five days prior to the date set for the hearing. The disabled person who is the subject of the petition shall have the right to be present, be represented by counsel, present evidence, and examine and cross-examine witnesses. If the disabled person who is the subject of the petition is indigent, the court shall appoint counsel to represent such disabled person. If the court determines that the disabled person lacks the capacity to waive the right to counsel, the court shall appoint a guardian ad litem to represent the interests of such disabled person. If, after hearing, the court determines, based upon a preponderance of the evidence, that such disabled person has been abused, is in need of protective services and lacks the capacity to consent and no other person who is authorized to consent is available or willing to consent, the court may appoint a conservator, guardian, or other person authorized to consent to the provision of protective services; provided, however, that the court shall establish the least restrictive form of fiduciary representation that will satisfy the needs of such disabled person. In addition to or in the alternative, the court may issue an order requiring the provision of services. The order shall contain a specific description of the services to be provided and insure that the least restrictive alternatives are utilized.

(b) If an emergency exists and said commission, counsel or department, a member of the immediate family or a caretaker has reasonable cause to believe that a disabled person is suffering from abuse and lacks the capacity to consent to the provision of protective services, said commission, counsel or department, member of the immediate family or caretaker may petition the court for an emergency order of protective services. The court shall give notice to the disabled person who is the subject of the petition at least twenty-four hours prior to the hearing. The court may dispense with notice upon finding that immediate and reasonable foreseeable physical harm to the individual or others will result from the twenty-four hour delay and that reasonable attempts have been made to give such notice. If after the hearing, the court determines, based upon a preponderance of the evidence, that the disabled person has been or is being abused, that an emergency exists, and that the disabled person lacks the capacity to consent to the provision of services, the court may order the provision of protective services on an emergency basis. The court shall order only those services necessary to remove the conditions creating the emergency and shall specifically designate the authorized services in its order. The order for emergency protective services shall remain in effect for a period not to exceed seventy-two hours. Said order may be extended for an additional seventy-two hour period if the court finds that such extension is necessary to remove the emergency.

(c) The court shall not order an institutional placement or change of residence unless it finds that no less restrictive alternative will meet the needs of the disabled person. No disabled person may be committed to a mental health facility pursuant to this section. The disabled person or his court appointed representative, said commission, counsel or department may petition to have any order issued pursuant to subsection (a) or (b) set aside or modified at any time.

Section 8. If, upon completion of investigation of a report of abuse of a disabled person whose caretaker is a state agency there is reasonable cause to conclude that such abuse did occur, or whenever, upon its own motion, the commission determines that a formal hearing is necessary to ascertain the scope and remedy of such abuse of disabled persons whose caretaker is a state agency, the commission may, upon a majority vote, initiate a formal investigation, including a hearing, to determine the nature and the extent of such abuse and what recommendations, if any, should be made with respect to such occurrence. Testimony in commission proceedings may, in the discretion of the commission, be recorded and taken under oath. The commission may, in its discretion, permit any party to testify, to call and examine witnesses, to introduce evidence or to cross-examine witnesses. Before testifying, all witnesses shall be given a copy of the regulations governing the commission proceedings. Each witness shall be entitled to be represented by counsel and may refuse to submit evidence or give testimony if such evidence or testimony could tend to incriminate him. All proceedings of the commission shall be public unless the commission votes to go into executive session. Any person whose name is mentioned during a proceeding under this section and who may be adversely affected by any action of the commission under section nine shall have the right to appear personally, to be represented by counsel in connection with the proceedings, to call and examine witnesses, to introduce evidence or to cross-examine witnesses.

Section 9. Upon the completion of any formal investigation, the commission shall:-

(a) issue a written report and refer the same to the appropriate state agency. Such report shall contain findings of fact concerning the alleged occurrence of abuse that was the subject of the investigation, together with a finding as to whether or not such abuse did occur and, if so, what actions are necessary to remedy the causes of such abuse or to prevent its reoccurrence;

(b) refer any matters for which there is reason to believe that a crime has been committed to the attorney general, the United States attorney or a district attorney for the county wherein such crime was committed;

(c) refer any matters for which there is reason to believe that employee misconduct has occurred to the state agency employing such person for imposition of disciplinary measures in accordance with the requirements of any applicable law, regulation or collective bargaining agreement; or

(d) refer any matters for which there is reason to believe that misconduct has occurred by a contractor with a state agency or by such contractor's agent, to the state agency contracting with such party for termination of such contract or for such other action as may be deemed appropriate by such state agency.

Section 10. Except when prevented by the constraints of professional privilege as hereinafter provided, mandated reporters shall notify the commission orally of any reportable condition immediately upon becoming aware of such condition and shall report in writing within forty-eight hours after such oral report.

Mandated reporters who have reasonable cause to believe that a disabled person has died as a result of a reportable condition shall immediately report such death, in writing, to the commission, to the district attorney for the county in which such death occurred and to the medical examiner as required by section six of chapter thirty-eight.

Any person may file report if such person has reasonable cause to believe that a disabled person is suffering from abuse or has died as a result thereof.

No mandated reporter shall be liable in any civil or criminal action by reason of submitting a report. No other person making a report shall be liable in any civil or criminal action by reason of submitting a report if such report was made in good faith; provided, however, that no person who abuses a disabled person shall be exempt from civil or criminal liability by reason of their reporting such abuse.

No privilege established, by section one hundred and thirty-five of chapter one hundred and twelve, by section twenty or twenty B of chapter two hundred and thirty-three, by court decision or by professional code relating to the exclusion of confidential communications and the competency of witnesses may be invoked to prevent a report by a mandated reporter or in any civil action arising out of a report made pursuant to this chapter; provided, however, that a mandated reporter need not report an otherwise reportable condition if the disabled person invokes a privilege, established by law or professional code, to maintain the confidentiality of communications with such mandated reporter.

Any person required by this section to make oral and written reports, who fails to do so, shall be punished by a fine of not more than one thousand dollars.

Section 11. No person shall discharge or cause to be discharged or otherwise discipline or in any manner discriminate against or threaten any employee, client or other person for filing a report with the commission or testifying in any commission proceeding, or providing information to the commission, the general counsel or the secretary of human services, the department of mental health or the department of public health or any department within the executive office of human services in the course of an investigation of alleged abuse of a disabled person. Any person who willfully violates the provisions of this section shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year, or both. The commission shall enforce the provisions of this section.

Section 12. Nothing in this chapter shall be construed to be a limitation of the powers and responsibilities assigned by law to other departments or agencies, nor shall this chapter be construed to relieve any such department or agency of its obligations to investigate and respond appropriately to alleged incidents of abuse. If the commission determines that a formal investigation under section eight, or an investigation under sections four and five, would duplicate or interfere with an ongoing investigation by law enforcement officials concerning possible criminal conduct arising out of the same conduct, it may, in consultation with the secretary of human services, delay or defer such formal investigation. The commission may, in consultation with the secretary of human services, delay or defer a formal investigation during the pendency of an investigation of the alleged abuse by the state agency at whose facility or program such abuse was alleged to have occurred. Such investigations may be delayed or deferred by the commission only after it has determined: that the health and the safety of clients of state agencies will not be adversely affected thereby; that the commission's ability to conduct a later investigation will not be unreasonably impaired and that the investigation of the incident by another official or agency will be conducted in good faith by an impartial, qualified investigator. The commission shall monitor the progress of such other investigations in order to determine when or whether the commission's investigation of the alleged incident of abuse should be initiated or resumed.

SECTION 2. Notwithstanding the provisions of any general or special law to the contrary, the initial appointment of members of the disabled persons protection commission, pursuant to section two of chapter nineteen B of the General Laws, inserted by setion one of this act, shall be one for a term ending January first, nineteen hundred and eighty-eight, one for a term ending January first, nineteen hundred and eighty-nine and the term of the chairman of said commission ending January first, nineteen hundred and ninety.