HOUSE DOCKET, NO. 3529        FILED ON: 1/18/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 127

The Commonwealth of Massachusetts

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PRESENTED BY:

Richard M. Haggerty

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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 to establish a registry of caretakers found to have substantiated abuse against persons with intellectual disability or developmental disability.

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PETITION OF:

HOUSE DOCKET, NO. 3529        FILED ON: 1/18/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 127

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 4026 OF 2017-2018.]

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act to establish a registry of caretakers found to have substantiated abuse against persons with intellectual disability or developmental disability.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

Section 21. (1) the following definitions shall

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

“Abuser” means a person whose name is listed on the Massachusetts disability abuse registry.

“Caretaker” means any person employed by a provider licensed by the department pursuant to sections fifteen and fifteen A of chapter nineteen B of the general laws, or commonwealth department of developmental services employee, that provides services or supports to a person with an intellectual or developmental disability

“Commissioner” means the commissioner of the department of developmental services

“Department” means the department of developmental services

“Registry” means the Massachusetts disability abuse registry

(2) Creation of a disability abuse registry

The department shall, subject to appropriation, establish and maintain a registry of abusers, against whom a substantiated finding of abuse of a person with an intellectual  or developmental disability has been issued by the disabled persons protection commission in accordance with chapter nineteen C of the general laws, or a substantiated finding under 115 CMR 9.00 including that of financial exploitation of a person with an intellectual or developmental disability has been issued by the department, to be known as the Massachusetts disability abuse registry.

The department shall, in accordance with section two of chapter thirty A of the general laws and subject to appropriation, adopt regulations consistent with this section. Said regulations shall include procedures and standards for the placement of a caretaker’s name on the registry, and the process for the notification to the caretaker of the right to appeal the finding that the caretaker meets the criteria for placement of his or her name on the registry.

The Department’s rules and regulations shall provide for a hearing before the Massachusetts division of administrative law appeals, and pursuant to subsection one of chapter thirty A of the general laws.

(3) Registration Process

After the conclusion of any appeal process at the agency that substantiated a finding of abuse of a person with an intellectual or developmental disability by a caretaker, or a substantiated finding of financial exploitation of a person with an intellectual or developmental disability by a caretaker and after notice and an opportunity for a hearing on the placement of his or her name on the registry, the department shall enter the abuser’s name on the registry.

(4) Requirement to check registry

Prior to hiring an individual seeking employment, a provider shall determine whether the applicant’s name appears on the registry.

The department shall notify a provider that currently employs an abuser upon the entry of his or her name in the registry

(5) Prohibition of hiring persons listed on the registry

No service provider shall hire or knowingly employ an individual whose name appears on the registry, or, if an alternative sanction was imposed, that individual shall not be hired or employed until the terms of such section have been fulfilled.

The department shall promulgate regulations to ensure service provider compliance with this subsection

The department shall establish penalties for providers who fail to meet the requirements of this subsection, including, but not limited to monetary fines, loss or downgrade of state certification, and forfeiture of state contracts.

(6) Whistleblower Protections

The protections established in section 185, of chapter 149, of the General Laws shall apply to any employee of a licensed service provider who reports an instance of abuse, or participates in any aspect of a relevant investigation.

(7) Access to the registry

The information maintained in the registry, including the record of its proceedings, shall not be considered a public record under clause twenty-six, of section seven, of chapter four of the general laws. The division of administrative law appeals and the department shall keep confidential and may only disseminate information contained in the registry to a provider for consideration of a current employee or an applicant for employment to provide direct care to persons with intellectual or developmental disability; or to a law enforcement agency; or the attorney general; or appropriate district attorney; or agency of the commonwealth that has jurisdiction over the victim, the matter under investigation, or jurisdiction over professional misconduct for possible prosecution or the imposition of remedial or disciplinary measures in accordance with the requirements of any applicable law or regulation.

(8) Registry oversight

Annually, the secretary of health and human services shall initiate an audit of the disability abuse registry to ensure compliance with this section, including that all substantiated findings by the disabled persons protection commission were added to the registry and proper notification was made to relevant providers, and

Section 2. Section five of chapter nineteen C of the general laws, is hereby amended by inserting at the end thereof, the following new subsection:

(6) immediately upon issuance of an investigation report substantiating abuse of a person with an intellectual disability or developmental disability, the commission shall submit all relevant information to the Massachusetts disability abuse registry

Section 3. Section 4H of chapter seven of the general laws, is hereby amended by inserting, in line 81, after the fourth paragraph, the following new paragraph:-

In accordance with section 21 of chapter 19B, caretakers who have been determined to meet the criteria for placement of their names on the Massachusetts disability abuse registry shall be entitled to a hearing before the Massachusetts division of administrative law appeals.

Section 4. Section 9B of chapter 30 of the general laws is hereby amended by inserting, in line 32, after the phrase “chapter one hundred and fifty E” the following new phrase:-

“or Massachusetts disability abuse registry proceedings under chapter seven, section four H”