SENATE DOCKET, NO. 1248        FILED ON: 1/19/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 52

The Commonwealth of Massachusetts

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PRESENTED BY:

John F. Keenan

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act updating terminology and investigative practices related to the protection of persons with disabilities.

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PETITION OF:

SENATE DOCKET, NO. 1248        FILED ON: 1/19/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 52

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act updating terminology and investigative practices related to the protection of persons with disabilities.

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. Section 19 of chapter 19B of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out, in lines 126, 139, 280 and 281, 305, 384, 390 and 391, and in lines 394 and 395, the words “disabled persons protection commission” and inserting in place thereof, in each instance, the following words:- commission for the protection of persons with disabilities.

SECTION 2. Chapter 19C of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out the title and inserting in place thereof the following title:- COMMISSION FOR THE PROTECTION OF PERSONS WITH DISABILITIES.

SECTION 3.  Section 1 of said chapter 19C, as so appearing, is hereby amended by striking out the definition of “Abuse” and inserting in place thereof the following definition:-

“Abuse”, an act or omission of a caretaker which results in serious physical or serious emotional injury or abuse per se to a person with a disability; 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. 

SECTION 4. Said section 1 of said chapter 19C, as so appearing, is hereby further amended by striking out the definition of “Caretaker” and inserting in place thereof the following definition:-

“Caretaker”, a person with a disability’s parent, guardian, or other person or agency responsible for the person with a disability’s health or welfare, whether in the same home as the person with a disability, a relative’s home, a foster home or any other location where the caretaker renders assistance.

SECTION 5. Said section 1 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 13, the words “disabled persons protection commission” and inserting in place thereof the following words:- commission for the protection of persons with disabilities.

SECTION 6. Said section 1 of said chapter 19C, as so appearing, is hereby further amended by striking out the definitions of “Disabled person”, “General counsel” and “Mandated reporter” and inserting in place thereof the following 2 definitions:- 

“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, firefighter, paramedic, emergency medical technician, person employed by a state agency as defined by this chapter, person employed by a private agency providing services to a person with a disability, or person employed to provide assistance with activities of daily living to a person with a disability, who in his or her professional capacity shall have reasonable cause to believe that a person with a disability is suffering from a reportable condition.

“Person with a disability”, a person between the ages of eighteen to fifty-nine, inclusive, who is a person with an intellectual or developmental disability as defined by section 1 of chapter 123B or who is otherwise mentally or physically disabled and as a result of that mental or physical disability is wholly or partially dependent on others to meet that person’s daily living needs; provided however, that the term “person with a disability” shall replace the term “disabled person” without changing the meaning.

SECTION 7. Said section 1 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 38 and 40, the words “disabled person or persons” and inserting in place thereof, in each instance, the following words:- person with a disability.

SECTION 8. Said section 1 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 41, the words “disabled persons” and inserting in place thereof the following words:- persons with a disability.

SECTION 9. Said section 1 of said chapter 19C, as so appearing, is hereby further amended by striking out the definition of “Reportable Condition” and inserting in place thereof the following definition:-

“Reportable Condition”, a serious physical or serious emotional injury sustained by a person with a disability and for which there is reasonable cause to believe resulted from abuse, or reasonable cause to believe that abuse per se exists.

SECTION 10. Said section 1 of said chapter 19C, as so appearing, is hereby further amended by striking out the definition of “State agency” and inserting in place thereof the following definition:-

“State agency”, any agency of the commonwealth that provides services or treatment to persons with a disability including a private entity providing such services or treatment pursuant to a contract, license or agreement with an agency of the commonwealth.

SECTION 11. Section 2 of said chapter 19C, as so appearing, is hereby amended by striking out the title and inserting in place thereof, the following title:- Establishment of the commission for the protection of persons with disabilities; membership; terms; compensation; annual report. 

SECTION 12. Said section 2 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 2, the first time it appears, the words “disabled persons” and inserting in place thereof the following words:- persons with a disability.

SECTION 13. Said section 2 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 2 and 3, the words “disabled persons protection commission” and inserting in place thereof the following words:- commission for the protection of persons with disabilities.

SECTION 14. Said section 2 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 5, the words “disabled persons” and inserting in place thereof the following words:- persons with a disability.

SECTION 15. Section 3 of said chapter 19C, as so appearing, is hereby amended by striking out, in lines 20 and 21, the words “disabled persons” and inserting in place thereof the following words:- persons with a disability.

SECTION 16. Said section 3 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 22, the word “other”.

SECTION 17. Said section 3 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 27, the words “pursuant to section nine”.

SECTION 18.  Said section 3 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 28 and 29, the words “disabled persons” and inserting in place thereof the following words:- persons with a disability.

SECTION 19. Said section 3 of said chapter 19C, as so appearing, is hereby further amended by inserting in line 32, after the words “sixty-six A” the following:- .  Except as otherwise provided in this chapter, all records containing personal data which are created, collected, used, maintained or disseminated pursuant to this chapter shall not be public records, and shall be governed by the provisions of chapter sixty-six A, the notice provisions of section sixty-three of chapter thirty and the enforcement provisions of section three B of chapter two hundred and fourteen;.

SECTION 20. Section 4 of said chapter 19C, as so appearing, is hereby amended by striking out, in line 1, the words “disabled person” and inserting in place thereof the following words:- person with a disability, and subject to the commission’s authority to conduct its own investigation.

SECTION 21. Said section 4 of said chapter 19C, as so appearing, is hereby further amended by striking out subsection (b) and inserting in place thereof the following subsection:-

(b) Refer immediately any such reports, which allege the occurrence of abuse of a person with a disability whose caretaker is a state agency, to the agency within the executive office of health and human services which has jurisdiction over the disability manifested by the person with a disability.  As determined and assigned by the commission, either the commission or that agency, subject to the oversight of the commission, shall investigate such abuse as provided in section 5. In a case where a commission investigation is being conducted, the state agency shall take reasonable steps to avoid unnecessary, unwarranted or counterproductive duplication between an internal investigation or inquiry by the agency and the commission’s investigation, by utilizing the commission’s investigation in lieu of an internal investigation conducted by the agency.

SECTION 22. Subsection (c) of said section 4 of said chapter 19C, as so appearing, is hereby further amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

(c) Refer immediately any such reports which allege the occurrence of abuse of a person with a disability whose caretaker is not a state agency, to the agency within the executive office of health and human services which the commission determines, based on the person’s disability, would most likely provide, license an entity to provide, or contract with or enter into an agreement to provide services or treatment to the person with a disability.  As determined and assigned by the commission, either the commission or the agency, subject to the oversight of the commission, shall investigate such abuse as provided in section 5.

SECTION 23.  Said section 4 of said chapter 19C, as so appearing, is hereby further amended by inserting, after subsection (c), the following subsection:-

(d) Refer immediately, in accordance with subsections (b) and (c), for the provision of protective services, reports which the commission determines present imminent risk of harm to a person with a disability, regardless of whether any serious injury is presently manifested.  The commission may oversee the provision of protective services until such time that the commission determines the risk has been addressed. 

SECTION 24. Said section 4 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 35, the words “disabled person” and inserting in place thereof the following words:- person with a disability.

SECTION 25.  Said section 4 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 39 and 40, 41, and 42, the words “evaluation and investigation” and inserting in place thereof the following words:- evaluation or investigation. 

SECTION 26.  Said section 4 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 42, the word “commissioners” and inserting in place thereof the following word:- commission.

SECTION 27.  Said section 4 of said chapter 19C, as so appearing, is hereby further amended by inserting, in line 46, the after the word “initial” the following words:- evaluation or.

SECTION 28. Said section 4 of said chapter 19C, as so appearing, is hereby further amended by inserting after the word “of”, in line 56, the third time it appears, the following words:- licensed or.

SECTION 29. Said section 4 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 58, the word “department’s” and inserting in place thereof the following word:- agency’s.

SECTION 30. Section 5 of said chapter 19C, as so appearing, is hereby amended by striking out, in line 1, the words “disabled person” and inserting in place thereof the following words:- person with a disability.

SECTION 31. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by inserting after the word “designated”, in line 2, the following words:- and assigned.

SECTION 32. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 2 to 4, inclusive, the words “ , the general counsel, or a department within the executive office of health and human services”.

SECTION 33. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 7 and 8, the words “counsel or department of mental health or department of public health” and inserting in place thereof the following words:- department of mental health, department of developmental services or the Massachusetts rehabilitation commission.

SECTION 34. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 9, the words “disabled person’s health or safety” and inserting in place thereof the following words:- health or safety of a person with a disability.

SECTION 35. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 12, the words “disabled person’s residence and day program, if any” and inserting in place thereof the following words:- any site relevant to the alleged abuse, which may include, but not be limited to, the residence and day program of the person with a  disability.

SECTION 36. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 13, the words “disabled person” and inserting in place thereof the following words:- person with a disability.

SECTION 37. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 17 to 19, inclusive, the words “to the general counsel and to the department of mental health and the department of public health” and inserting in place thereof the following words:- and to the department of mental health, department of developmental services or the Massachusetts rehabilitation commission, as appropriate.

SECTION 38. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by inserting, in line 22, after the word “ten” the following words:- or any agency employing said mandated reporter.

SECTION 39. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by inserting , in line 24, after the word “agency” the following words:- it designates.

SECTION 40. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 33, the words “disabled person” and inserting in place thereof the following words:- person with a disability.

SECTION 41. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 43 and 44, the words “facility named in the report, if any,” and inserting in place thereof the following words:- any site relevant to the report. 

SECTION 42. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 45, the words “in the same facility”.

SECTION 43. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 46 and 47, the words “the general counsel, the department of mental health and the department of public health” and inserting in place thereof the following words:- and to the department of mental health, department of developmental services or the Massachusetts rehabilitation commission, as appropriate,.

SECTION 44. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 50, the words “disabled person” and inserting in place thereof the following words:- person with a disability.

SECTION 45. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 52, the words “, the general counsel, the attorney general”.

SECTION 46. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 54, the word “six” and inserting in place thereof the following word:- three.

SECTION 47. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 56, 58, and 61, the word “misconduct” and inserting in place thereof, in each instance, the following word:- abuse.

SECTION 48. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 63, 73, 75, 77 and 78, the words “disabled person” and inserting in place thereof, in each instance, the following words:- person with a disability.

SECTION 49. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 77, the word “or” as third appearing.

SECTION 50. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by inserting, in line 79, after the word “caretaker” the following words:- ; or (d) another criminal offense has occurred which has caused harm to a person with a disability.

SECTION 51. Section 6 of said chapter 19C, as so appearing, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

The commission, acting through state agencies within the executive office of health and human services designated by the commission for the purpose of providing protective services, as necessary to prevent further abuse in cases investigated pursuant to this chapter and subject to the oversight of the commission, shall:-

SECTION 52. Said section 6 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 10 and 15, the words “disabled person” and inserting in place thereof, in each instance, the following words:- person with a disability.

SECTION 53. Section 7 of said chapter 19C, as so appearing, is hereby amended by striking out, in lines 1 and 2, the words “the general counsel, the department of mental health or the department of public health,” and inserting in place thereof the following words:- the department of mental health, the department of developmental services or the Massachusetts rehabilitation commission.

SECTION 54. Said section 7 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 4, the words “disabled person” and inserting in place thereof the following words:- person with a disability.

SECTION 55.  Said section 7 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 5 and 6, the words “, counsel or department” and inserting in place thereof the following words:- or agency.

SECTION 56.  Said section 7 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 6 and 7, the words “disabled person” and inserting in place thereof the following words:- person with a disability.

SECTION 57.  Said section 7 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 9, the words “, counsel or department” and inserting in place thereof the following words:- or agency.

SECTION 58. Said section 7 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 12, 13, 16, 17 and 18, 20 and 21, 22, and 29, the words “disabled person” and inserting in place thereof, in each instance, the following words:- person with a disability.

SECTION 59.  Said section 7 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 33 and 34, the words “, counsel or department” and inserting in place thereof the following words:- or agency.

SECTION 60.  Said section 7 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 35, the words “disabled person” and inserting in place thereof the following words:- person with a disability.

SECTION 61.  Said section 7 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 37, the words “, counsel or department” and inserting in place thereof the following words:- or agency.

SECTION 62. Said section 7 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 39 and 40, 46, 47 and 48, 59 and 61, the words “disabled person” and inserting in place thereof, in each instance, the following words:- person with a disability.

SECTION 63.  Said section 7 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 62, the words “, counsel or department” and inserting in place thereof the following words:- or agency.

SECTION 64. Said section 7 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 65, 67 and 68, the words “disabled person” and inserting in place thereof, in each instance, the following words:- person with a disability.

SECTION 65. Section 8 of said chapter 19C, as so appearing, is hereby amended by striking out, in the title, the words “disabled person” and inserting in place thereof the following words:- persons with a disability.

SECTION 66. Said section 8 of said chapter 19C, as so appearing, is hereby amended by striking out, in line 2, the words “disabled person” and inserting in place thereof the following words:- person with a disability.

SECTION 67. Said section 8 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 6, the words “disabled persons” and inserting in place thereof the following words:- persons with a disability.

SECTION 68. Section 9 of said chapter 19C, as so appearing, is hereby amended by striking out subsection (d), and inserting in place thereof the following subsection:-

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

SECTION 69. Section 10 of said chapter 19C, as so appearing, is hereby amended by striking out, in lines 4 and 5, the words “and shall report in writing within forty-eight hours after such oral report”.

SECTION 70. Said section 10 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 7, the words “disabled person” and inserting in place thereof the following words:- person with a disability.             

SECTION 71. Said section 10 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 10, the word “six” and inserting in place thereof the following word:- three.

SECTION 72. Said section 10 of said chapter 19C, as so appearing, is hereby further amended by inserting, in line 12, after the word “file” the following word:- a.

SECTION 73. Said section 10 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 13, 19, and 29, the words “disabled person” and inserting in place thereof, in each instance, the following words:- person with a disability.

SECTION 74. Said section 10 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 32 and 33, the words “oral and written reports” and inserting in place thereof, the following words:- a report.

SECTION 75.  Section 11 of said chapter 19C, as so appearing, is hereby amended by striking out, in line 6, the words “, the general counsel or”.

SECTION 76. Said section 11 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 9, the words “disabled person” and inserting in place thereof the following words:- person with a disability.

SECTION 77. Said section 11 of said chapter 19C, as so appearing, is hereby further amended by inserting, in line 33, after the word “writing.” the following words:- The commission may investigate the allegation pursuant to section 5.

SECTION 78.  Section 12 of said chapter 19C, as so appearing, is hereby amended by striking out, in lines 10 and 11, the words “, in consultation with the secretary of health and human services,”.

SECTION 79.  Said section 12 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 11, the word “formal”.

SECTION 80.  Said section 12 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 12 and 13, the words “, in consultation with the secretary of health and human services,”.

SECTION 81.  Said section 12 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 13, the words “a formal” and inserting in place thereof the word:- an.

SECTION 82. Section 13 of said chapter 19C, as so appearing, is hereby amended by striking out, in the title, the words “disabled person” and inserting in place thereof the following words:- person with a disability.             

SECTION 83. Said section 13 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 1, the words “disabled person” and inserting in place thereof the following words:- person with a disability.

SECTION 84. Said section 13 of chapter 19C, as so appearing, is hereby further amended by striking out, in line 3, the words “contracting with the commonwealth” and inserting in place thereof the following words:- providing services or treatment to a person with a disability pursuant to a contract, license, or agreement with an agency of the commonwealth.

SECTION 85. Said section 13 of chapter 19C, as so appearing, is hereby further amended by striking out, in line 6, the word “a” and inserting in place thereof the following word:- any.

SECTION 86. Said section 13 of said chapter 19C, as so appearing, is hereby further amended by striking out, in line 8, the words “disabled person” and inserting in place thereof the following words:- person with a disability.

SECTION 87. Section 220 of chapter 111 of the General Laws, as so appearing, is hereby amended by striking out, in lines 20 to 21, the words “disabled persons protection commission” and inserting in place thereof the following words:- commission for the protection of persons with disabilities.