Bill S.46

SENATE DOCKET, NO. 1289 FILED ON: 1/18/2013

SENATE . . . . . . . . . . . . . . No. 46

By Ms. Clark (by request), a petition (accompanied by bill, Senate, No. 46) of Caroline Mallary for legislation to reform the department of children and families. Children, Families and Persons with Disabilities.

The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act relative to reforming the department of children and families.

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. Chapter 6A of the General Laws, as most recently amended by chapter 240 of the acts of 2012, is hereby amended by inserting at the end the definition of “community-based services” the following phrase:-

“Community-based services” shall not include inpatient treatment centers or residential programs which meet the definition of a secure program as defined in section 21 of chapter 119 of the General Laws.”

SECTION 2. Section 21 of chapter 119 of the General Laws, as so appearing, is hereby amended by striking out the word “18” in the definition of “child requiring assistance” and inserting in place thereof the following word:- “17”

SECTION 3. Section 21 of chapter 119 of the General Laws, as so appearing, is hereby amended by inserting at the end of (iv) the following subclause:-

(v) who is not currently the victim of abuse, neglect, severe harassment, or unmet medical or educational needs.

SECTION 4. Section 21 of said chapter 119, as most recently amended by chapter 240 of the acts of 2012, is hereby amended by adding to the definition of “Habitually Truant” the following text:-

“whose educational needs are being met at his school, who is not believed to be severely harassed or bullied at his school, and who has been unable or unwilling to meet the requirements for early graduation.”

SECTION 5. Section 39E of said chapter 119, as so appearing, is hereby amended by striking the subclauses (ii) and (iii) of clause (1) of subsection (a) and inserting in place thereof the following subclauses:-

(ii) that the child is under the age of 18; and (iii) that the child is not currently the victim of abuse, neglect, severe harassment, or unmet medical or educational needs; and (iv) that the child and such child’s family require assistance

SECTION 6. Section 39E of said chapter 119, as so appearing, is hereby amended by inserting at the end of clause (3) of subsection (a) the following subclauses:-

(iii) if the child has complained of bullying or harassment at school any time within the last year, the request for assistance shall include a statement of the specific steps taken by the school to mitigate bullying or harassment; and

(iv) if the child has any special educational needs, including the need for education which is significantly above or below the child’s current grade level, or if the child is not fluent in English, the request for assistance shall include a statement of the specific steps the school has taken to ensure the child is offered education which is appropriate to the child’s abilities. The statement must note whether the child or child’s parent, legal guardian, or custodian has requested special education within the last two years and been denied. If the school is unable to provide education at a level appropriate to the child’s abilities, the request for assistance must note whether the school recommended any alternative schools which are able to provide appropriate education. For the purpose of this section, extracurricular or after-school programs shall not be considered alternative schools, and shall not fulfill the obligation of the school to provide appropriate education to every child.

(v) The request for assistance must state that the school has seen no evidence that the child is being abused, neglected, or severely harassed inside or outside of school. If possible, the school must interview the child about any possible abuse, neglect, or harassment no more than three weeks prior to filing a request for assistance, and must include notes from such an interview in the request for assistance. If it is not possible to interview the child, the request for assistance must include the reason an interview was not possible. Any such interview must question the child about lack of adequate food, clothing, shelter, sleep or medical care, must ask the child about his reasons for truancy or poor conduct, and must ask the child to propose a solution to any truancy or conduct issues. No such interview shall assume that an overweight child has adequate food, or that a child is willfully refusing to sleep or wear adequate clothing. A child who gives inadequate reasons for his truancy or poor conduct shall not be assumed to have no reason for truancy or poor conduct, if there is evidence that the child is being abused, neglected, or severely harassed. The child must be informed of the purpose of the interview and of any recording devices present, and may request that any recording devices be turned off. The school must make a good faith effort to conduct the interview in a manner unlikely to cause unnecessary stress, evasion, or untruthful answers. If the interviewer believes a child’s answer is untruthful, misleading, or incomplete, the interviewer must make a detailed note of why the answer appears untruthful, misleading, or incomplete.

SECTION 7. Section 39E of said chapter 119, as so appearing, is hereby amended by striking clause (3) of subsection (a) and inserting in place thereof the following:-

“refer the child to an appropriate public or private organization or person for psychiatric, psychological, educational, occupational, medical, dental or social services, provided that such an organization does not qualify as a secure program;”

SECTION 8. Section 39E of said chapter 119, as so appearing, is hereby amended by inserting at the end of clause (4) of subsection (a) the following subclause:-

(iv) Additionally, the request for assistance must include a signed statement that the parent, legal guardian, or custodian believes that:

i) the child is consistently provided with adequate food, shelter, clothing, rest, and medical care; and

ii) the child has no medical conditions which may be interfering with the function of the family unit; and

iii) the child’s current school provides adequate and appropriate education and the child is able to travel to and from school safely; and

iv) the child is not being severely harassed or abused by anyone inside or outside the home; and

v) the child has not been exposed to domestic violence, drug abuse, alcohol abuse, or criminal activity inside the home within the last year, or that any member of the home who exposed the child to these activities is receiving treatment or no longer lives in the child’s home.

SECTION 9. Section 39E of said chapter 119, as so appearing, is hereby amended by inserting between the sentence beginning “the recommendation of such probation officer” and the sentence beginning “the clerk or the judge” following sentences:-

“The child must be informed of the nature of the proceedings and must be informed of any conditions the child can meet to avoid further proceedings. The clerk or judge must make a good faith effort to be accommodating of conduct which is due to the child being confused, misled or frightened.”

SECTION 10. Section 39E of said chapter 119, as so appearing, is hereby further amended by striking out the fourth paragraph and inserting in place thereof the following paragraph:-

“At the conclusion of the probable cause hearing, the clerk shall set a date for a fact finding hearing not more than 90 days from the date the request for assistance was filed, and not more than 15 days from the date the request for assistance was filed if the child is currently residing in a secure program. The court may postpone the fact finding hearing upon the request of the parent, legal guardian, custodian, child, petitioner or probation officer for an additional 90 days after the expiration of the initial 90 day period, provided that the child is not currently residing in a secure program.”

SECTION 11. Section 39F of said chapter 119, as so appearing, is hereby amended by inserting between the sentence beginning “the court shall appoint counsel for the child” and the sentence beginning “the clerk shall cause” the following sentence:-

“The child shall be informed that the child’s counsel is obligated to represent the child’s wishes, independent of the wishes of the child’s parent, legal guardian, or custodian.”

SECTION 12. Section 39H of said chapter 119, as most recently amended by chapter 240 of the acts of 2012, is hereby amended by inserting between the sentence beginning “The court shall not order the child” and the sentence beginning “Prior to the court granting” the following:-

“The court may not order the child to be placed in a secure program if there is evidence that the child has been neglected, abused, or severely harassed, or if the child does not have a history of running away from non-abusive placements, or if the request for assistance was filed due to truancy only.”

SECTION 13. Section 39G of said chapter 119, as most recently amended by chapter 240 of the acts of 2012, is hereby amended by inserting at the end of the third paragraph after the sentence beginning “Such child may, however, be placed in a facility which operates as a group home” the following:-

“A child who is the subject of a request for assistance may not be placed in a secure program if there is evidence that the child has been neglected, abused, or severely harassed, or if the child does not have a history of running away from non-abusive placements, or if the request for assistance was filed due to truancy only.”

SECTION 14. Section 39G of said chapter 119, as most recently amended by chapter 240 of the acts of 2012, is hereby further amended by striking the first sentence of the first paragraph and inserting the following:-

“At any hearing held to determine whether a child and family require assistance, the child and his attorney shall be present and shall be given an opportunity to be heard, and the parent, legal guardian or custodian shall be given an opportunity to be heard. The court must make a good faith effort to be accommodating of conduct which is due to the child being confused, misled, or frightened. The petitioner who files the request for assistance shall bear the burden of presenting evidence, proving by clear and convincing evidence, that the child and family require assistance, and that the child is not the victim of abuse, neglect, severe harassment, or unmet medical or educational needs.”

SECTION 15. Section 39G of said chapter 119, as most recently amended by chapter 240 of the acts of 2012, is hereby further amended by inserting into the first sentence of the third paragraph after the words “child and the child’s attorney shall be present” the following:- “and shall be given an opportunity to be heard”.

SECTION 16. Paragraph (2) of subsection (b) of section 39G of said chapter 119, is hereby amended by adding after the text “a private or charitable or childcare agency or other private organization, licensed or otherwise authorized by law to receive and provide care for such child” the following:- “provided that such an organization does not qualify as a secure program, unless the child has a history of running away from non-secure, non-abusive placements. Any such placement or placements may not be in a secure program or programs for more than 45 consecutive days, and no more than 120 days per year”.

SECTION 17. Subsection (c) of section 39G of said chapter 119, is hereby amended by appending to the following sentence “The department shall direct the type and length of such out-of-home placement” the following:-

“provided that such placement shall not be in a secure program unless the child has a history of running away from non-secure, non-abusive placements. Any such placement or placements may not be in a secure program or programs for more than 45 consecutive days, and no more than 120 days per year, unless the department applies to the court for an extension of the order of disposition as described in section 39X. The department must make provisions for the child to be released from any secure program within the 45-day time limit. If a non-secure program cannot be found within 45 days, the child’s current placement must make non-secure accommodations for him, including allowing the child to attend public school. Under penalty of perjury, the department and staff of residential programs may not make false reports of the child attempting to run away in order to subvert this clause. Any department employee or program staff who reports that the child attempted to run away must submit a signed document to the court giving evidence that the child attempted to run away, and must state a genuine belief that the child was unlikely to return within 12 hours or return before serious harm came to him;”

SECTION 18. Section 39G of said chapter 119, as recently amended by chapter 240 of the acts of 2012, is hereby amended by appending to the phrase “payment for such services shall not be denied if the treatment or services otherwise meet the criteria for coverage” the following:- “provided that the treatment does not take place in a secure program when equivalent treatment is available in non-secure settings.”

SECTION 19. Section 39G of said chapter 119, as recently amended by chapter 240 of the acts of 2012, is hereby amended by inserting after the sentence ending “regardless of whether juveniles adjudicated are also provided care in such facility” the following:-

“Such a child may not be placed in a secure program if there is evidence that the child has been neglected, abused, or severely harassed, or if the child does not have a history of running away from non-abusive placements, or if the request for assistance was filed due to truancy only.”

SECTION 20. Section 39G of said chapter 119, as recently amended by chapter 240 of the acts of 2012, is hereby amended by striking out, in line 49, the phrase “90 days” and inserting the phrase “45 days”.

SECTION 21. Section 39G of said chapter 119, shall be hereby amended by adding, after the third paragraph, the following paragraph:-

“The court may only consider an extension if it finds that the child has not being abused, neglected, or severely harassed in any placement since the original request for assistance. Additionally, if the child is currently placed in a secure program, the court must consider whether the child exhibits signs of emotional or social deprivation, constant fear, mania or dissociation that may be the result of placement in a secure program. Any residential program in which the child has been placed must submit a report of the number of restraints and escorts performed on the child and other residents while the child was in the program. If any restraints have occurred, the court must ask the child whether the restraints seemed justified, and whether the child was forced to watch, listen to, or participate in any restraints of other residents. Additionally, the court must attempt to determine whether any restraints used in the child’s presence caused severe injury or infection or interfered with normal breathing. If a child testifies that his current program is abusive or uses excessively violent restraints or restraints that interfere with breathing, the court must ensure that the child is protected from retaliation by program staff, and must note in writing any steps taken to prevent retaliation.”

SECTION 22. Section 39G of said chapter 119, as recently amended by chapter 240 of the acts of 2012, is hereby amended by striking the fourth paragraph and inserting the following paragraph:-

“No order shall continue in effect after the eighteenth birthday of a young adult named in a request for assistance, however, the court may recommend that such a young adult voluntarily participate in a program designed and operated as a transition to independent living. The court must make provisions for funding the young adult’s participation in such a recommended program.”

SECTION 23. Clause (iii) of Section 39H of said chapter 119, as recently amended by chapter 240 of the acts of 2012, is hereby amended by adding to the phrase ending “juveniles adjudicated delinquent are also provided care in such facility” the following text:-

“Such a child may not be placed in a secure program if there is evidence that the child’s failure to respond to a summons or likely failure to respond to a summons is due to abuse, illness, or willful obstruction of any adult.”

SECTION 24. Section 34, as recently created by chapter 240 of the acts of 2012, are hereby amended by adding the following subclause:-

(e) The department shall adopt regulations giving such students the opportunity to graduate early with an equivalency diploma or regular diploma upon meeting competency requirements, which shall include passing the Competency Determination, as defined in section 1D of chapter 69 of the MGL and 603 CMR 30. The competency requirements shall be structured such that any student shall have the opportunity to meet them within 30 days of enrollment in a truancy prevention program, regardless of age.

SECTION 25. Subclause (a) of section 34, as recently created by chapter 240 of the acts of 2012, are hereby amended by striking out the phrase “1 of whom shall be a private provider of services to families with children who have behavioral health needs” and inserting the following:-

“1 who is an adult who has been the subject of a CHINS or Child Requiring Assistance filing within the past 15 years, who is not an employee of the commonwealth or a contractor thereof, is not associated with any private provider of behavioral health services, and is currently either a college student or financially independent,”

SECTION 26. Section 1O of chapter 69 of General Laws, as most recently amended by chapter 240 of the acts of 2012, is hereby amended by adding the following sentence to the end of the first paragraph:-

“The department shall adopt regulations giving such students the opportunity to graduate early with an equivalency diploma or regular diploma upon meeting competency requirements, which shall include passing the Competency Determination, as defined in section 1D of chapter 69 of the MGL and 603 CMR 30. The competency requirements shall be structured such that any student shall have the opportunity to meet them within 30 days of enrollment in a truancy prevention program, regardless of age.”

SECTION 27. Section 38, as recently created by chapter 240 of the acts of 2012, is hereby amended by striking existing text following the sentence ending “under section 19 of chapter 321 of the acts of 2008” and inserting the following:-

“The program shall attempt to resolve the conflict by offering the child the opportunity to pass the Competency Determination, as defined in MGL §69:1D and 603 CMR 30, regardless of age, and shall make this offer to the child in writing within 3 days of the child enrolling in the program. The child shall not be obliged to accept or decline this offer immediately, however, the program shall provide a testing opportunity within 15 days of the child accepting the offer. A child who earns a Certificate of Mastery on the Competency Determination, as defined in 603 CMR 31, shall be awarded a regular high school diploma from his school district and shall be exempt from school attendance requirements. However, the child’s school district shall remain responsible for providing the child with the opportunity to take any standardized test that may be required for admission to college. A child who earns a Certificate of Mastery on the Competency Determination in this way shall be eligible for the same state merit scholarships as a child who completed the twelfth grade.

A child who passes the Competency Determination without a Certificate of Mastery shall be offered the opportunity to pass a high school equivalency test within 15 days of passing the Competency Determination. A child who passes the high school equivalency test shall be granted a high school equivalency diploma and be exempt from school attendance requirements. The Department of Education may create its own high school equivalency test, which may be the same as the Competency Determination, or the Department of Education may negotiate with the GED Testing Service to allow such a child under the age of 16 to attempt to earn a GED. If the GED Testing Service will not allow such a child to attempt to earn a GED, or if the GED Testing Service cannot provide GED testing to the child within 15 days of the child passing the Competency Determination, or if the Department of Education and the GED Testing Service cannot reach an agreement for such children within 1 year of the effective date of this act, the Competency Determination shall be considered the high school equivalency test until such time as the Department of Education creates its own high school equivalency test. Such a child who passes the Competency Determination before a high school equivalency test is adopted shall be exempt from school attendance requirements until a high school equivalency test is adopted, but shall not be granted an equivalency diploma before passing a high school equivalency test.

A child who fails to pass the Competency Determination may choose to take the test again at a later date, however, the truancy prevention program may delay the retesting for up to 120 days.

The department shall evaluate the effectiveness of the program in preventing truancy and enhancing the child’s academic performance. The department shall collect statistics on the attempts to pass the Competency Determination under this program, the degree of success of these attempts, and the number of regular diplomas and equivalency diplomas awarded under this program. The department shall report the results of that evaluation to the board of elementary and secondary education, the house and senate committees on ways and means, joint committee on education, the department of elementary and secondary education and the child advocate.”

SECTION 28. Section 21, of chapter 119 of the General Laws, is hereby amended to include the following definitions:-

“Non-secure program”, a residential program or group home for minors that does not qualify as a Secure program under the definition below, which may be used as temporary shelter or longer placement, or as a substitute for private foster homes only in the absence of available private foster homes, which

(1) has the obligation to provide residents with a life that is as normal as possible.

(2) grants age-appropriate freedoms to residents as a necessary part of helping them grow into functional, self-sufficient adults who are able to fully integrate into American society.

(3) to the maximum reasonable extent, allows residents to attend normal public schools, participate in extracurricular activities, and have friends outside the program.

“Secure program”, any residential treatment center, therapeutic boarding school, group home, or overnight camp for minors characterized by security hardware or isolated location, and a staff-to-child ratio sufficient to prevent escape, or any such facility which self-identifies as a secure program, or any such facility where minor residents’ immediate needs are considered more important than the potential harm caused by restrictive institutionalization and isolation from normal society. Additionally, a residential facility for minors may be considered a secure program if it places any of the following restrictions upon residents:

(1) residents without a severe intellectual disability are not permitted to attend a normal public school, or attendance at a normal public school is considered privilege which is indefinitely denied to new residents by default, or more than half the residents are prohibited from attending a normal public school under normal circumstances. Non-therapeutic boarding schools are exempt from this clause.

(2) residents are prohibited from having private conversations.

(3) residents without a severe intellectual disability are prohibited from closing any door at any time, or from being alone in any room other than a bathroom.

(4) residents are not given opportunity and sufficient space to exercise for at least half an hour a day or 5 hours a week. For the purpose of this definition, household chores shall not be considered exercise, nor shall exercise time be allotted exclusively during time allotted for sleeping, eating, or visitation, nor shall exercise time replace all free time, nor shall exercise be used as a punishment or means of humiliation.

(5) takedown restraints are used to enforce program rules or staff commands even when the resident is not posing a danger to himself or others, or staff has a history of escalating minor infractions in order to justify restraints, or mechanical or chemical restraints are used at any time.

(6) residents are completely prohibited from speaking to any friends of similar age outside the program, except by mail, or speaking to any friends of similar age outside the program is a privilege denied to more than half the residents under normal circumstances. A non-secure program may prohibit residents from speaking to specific friends; however, the program should maintain a list of such friends and the reason that the resident is prohibited from speaking to them.

(7) invasive personal searches are used on residents at any time.

Additionally, a program may be considered a secure program if at least 3 of the following restrictions are applied to residents who have lived at the facility for over a week, who are not being punished for specific infractions, threats to run away, or incomplete responsibilities, and who do not have a severe intellectual disability.

(1) residents are prohibited from having shoes, coats, or containers in their possession.

(2) residents without special obligations are given less than half an hour a day of free time, or less than 5 hours a week of free time

(3) residents age 10 and up are not permitted to leave any room at any time without staff accompaniment.

(4) residents age 12 and up are completely prohibited from going outside during free time without staff or a relative present, or going outside without staff or a relative present is a privilege denied to more than half the over-12 residents under normal circumstances.

(5) residents age 14 and up are completely prohibited from leaving the property during free time without staff or a relative present, or leaving the property during free time without staff or a relative present is a privilege denied to more than half the over-14 residents under normal circumstances. This shall not be interpreted to mean that a non-secure program cannot limit the amount of free time spent off the property. A non-secure program may prohibit all residents from leaving the property during free time under special temporary circumstances, and may place reasonable restrictions upon time, activities, and places and people visited while off the property, however, a non-secure program may not willfully isolate residents from normal society for long periods of time.

(6) residents age 16 and up who are not struggling in school are prohibited from having a job outside the program, or the program is unwilling to make reasonable accommodations for over-16 residents who want to work.

SECTION 29. Section 32, of chapter 119 of General Laws, is hereby amended by adding, after the third paragraph, the following:-

The department shall not place any child in a secure program for evaluation except under the following conditions:

(a) the child has run away from a non-secure, non-abusive placement immediately preceding placement in the secure program, and did not return voluntarily within 12 hours, or engaged in criminal behavior during his absence from the non-secure program. For the purpose of this subsection, returning voluntarily shall include circumstances where the child returns peaceably after being found within 12 hours, or does not resist returning after being told that returning within 12 hours will prevent him from being placed in a secure program.

(b) the child has attacked or severely harassed other children in a non-secure placement immediately preceding placement in the secure program

(c) the child has attacked staff in a non-secure placement within the past 180 days, under circumstances that do not indicate the child was defending himself from an abusive restraint or escort, or do not indicate the child was evading a restraint or escort without attacking.

(d) the child has a severe intellectual or developmental disability which prevents him from having full understanding of his environment. Behavioral health issues are specifically excluded unless such issue leads to condition (a), (b), (c), or (e).

(e) the secure program is a psychiatric hospital and the child requires immediate hospitalization to prevent suicide, as determined by a social worker employed by the hospital for suicide risk assessment. No evaluation in a secure program shall continue for more than 15 days. Any placement in a secure program which is not court ordered must meet the same conditions as a placement for evaluation, but may continue for up to 45 days.The department shall not place any child in a secure program or programs for more than 45 consecutive days or more than 120 days per year without a court order. If the department believes it necessary to continue detaining the child in a secure program, it must file a petition for the commitment of a dangerous person under the procedures set forth in chapter 123. Upon expiration of a child’s placement in a secure program, the department must immediately place the child in a non-secure placement. If it is not possible to find a non-secure placement for the child, the program must make non-secure accommodations for the child, including allowing the child to attend public school. Any child who is placed in a secure program due to a shortage of more appropriate housing must be granted a full range of non-secure accommodations by default, regardless of whether the placement is shorter than 1 week. Any failure by the program to make non-secure accommodations for a child entitled to non-secure accommodations shall be justified in writing to the child’s social worker and the office of the child advocate. Under penalty of perjury, staff of secure programs may not make false reports of the child acting violently or attempting to run away in order to subvert this clause. A child who is placed in a secure program for more than 15 days shall have the right to apply for a commitment hearing under the procedures set forth in chapter 123, section 9(b). The secure program in which the child resides shall inform the child and any interested adults of this right in a timely and appropriate manner. The institution may not use unreasonable means to prevent the child from applying for a commitment hearing. For the purpose of this section, the following definitions shall apply:

(a) “Interested adults” means legal relatives and such others as may visit the child. An adult applying for a commitment hearing on behalf of a child is not guaranteed custody should the child be released from the program.

(b) “Unreasonable means” includes but is not limited to: use of physical restraint, use of prolonged solitary confinement, denial of visitation with relatives, denial of access to materials or communication channels needed for the application, and willful misrepresentation of the process of applying for a commitment hearing. No residential program operated or contracted by the department shall knowingly use restraints which interfere with normal breathing or circulation, regardless of whether breathing is inhibited to the point where the child is completely unable to speak. No residential program operated or contracted by the department shall ask or require any child to write or sign any document giving staff blanket permission to restrain the child at some point in the future. Any legally required report on a restraint generated by the program shall not use any prewritten document as a substitute for a child’s comments on a restraint. Any such report must describe any indications that the child was having difficulty breathing, including but not limited to claims by the child that he was having difficulty breathing. The report shall also describe staff response to these indications. Any such report shall indicate whether the child had a medical emergency in the week following the restraint, regardless of whether the medical emergency was an obvious result of the restraint. The report shall also note whether injuries resulting from the restraint were apparent for more than 1 week. The office of health and human services shall have the right to make periodic, unscheduled audits of residential programs operated or contracted by the department for the purpose of uncovering abusive use of restraints. Auditors shall have the right to privately interview child residents without giving prior notice to the program.

Name:	District/Address:
Caroline Mallary	625 Main St Apt 9 Reading, MA 01867