FILED ON: 9/16/2019
HOUSE . . . . . . . . . . . . . . . No. 4074
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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 protect persons with intellectual or developmental disability from abuse.
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 4H of chapter 7 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by inserting after the fourth paragraph the following paragraph:-
In accordance with section 15 of chapter 19C, a care provider against whom a substantiated finding of registrable abuse has been made or whose appeal to have the care provider’s name removed from the registry of abusers of persons with intellectual or developmental disabilities was denied shall be entitled to appeal a final decision of the disabled persons protection commission at a hearing before the division.
SECTION 2. Chapter 19C of the General Laws is hereby amended by adding the following section:-
Section 15. (a) As used in this section the following words shall have the following meanings, unless the context requires otherwise:-
“Care provider”, a person who is employed by, or contracts with, the department or an employer to provide services or supports to a person with an intellectual or developmental disability. A care provider must also meet the definition of caretaker pursuant to section 1 of chapter 19C.
“Department”, the department of developmental services.
“Employer”, an entity that provides services or treatment to persons with intellectual or developmental disabilities, pursuant to: (i) a contract or agreement with the department; (ii) funding administered by the department; or (iii) a license under section 15 or 15A of chapter 19B.
“Registry”, the registry of abusers of persons with intellectual or developmental disabilities.
“Registrable abuse”, an act or omission of a care provider that results in serious physical injury or serious emotional injury, or constitutes abuse per se, of a person with an intellectual or developmental disability; provided, however, that “registrable abuse” shall not include instances in which the commission, upon weighing the conduct of the care provider and its outcome, determines that the incident was isolated and unlikely to reoccur, and that the care provider is fit to provide services or supports to persons with intellectual or developmental disabilities.
(b) The commission shall, subject to appropriation, establish and maintain a registry of care providers against whom the commission has made a substantiated finding of registrable abuse.
(c) If, after notice provided pursuant to section 5(5) of chapter 19C, the commission maintains a finding of registrable abuse, the commission shall include the care provider’s name and date of birth on the registry; provided, however, that the commission shall provide notification to the care provider of the care provider’s right to appeal a final decision of the commission to the division of administrative law appeals pursuant to section 4H of chapter 7 and of the care provider’s right to petition for the removal of the care provider’s name from the registry pursuant to subsection (g); provided further, that if the care provider appeals the commission’s final decision to the division of administrative law appeals within ten days of such notice, the commission shall not enter the care provider’s name on the registry unless the division affirms the commission’s final decision by finding that the commission has established registrable abuse by the care provider, based on a preponderance of the evidence. The decision issued by the division may be subject to further judicial review pursuant to section 14 of chapter 30A.
The commission shall notify the department, the last known employer of the care provider, and the victim of the abuse, or their guardian if applicable, of any substantiated finding of registrable abuse; any appeal challenging such a determination; any petition filed to remove a name from the registry pursuant to section 15(g) of this chapter; or any petition filed for judicial review; and the disposition of such appeal or petitions.
For the purposes of section 15(c) of this chapter, “written notice to the care provider” is notice to be sent by certified mail, return receipt requested, and also by separate first-class mail sent to the care provider’s last known address to be identified during the investigation by the commission. Such certified mail notice shall be sufficient, although unclaimed or refused by the care provider, provided that the first-class mail notice is not returned to the sender undelivered. No additional service shall be required for any reason if notice sent by mail, in accordance with this section, appears to have been valid. In individual cases, if service by mail has not been accomplished, the commission may provide for any other means of service or notice as is deemed necessary and effective.
(d) Prior to employing, or contracting with, a person as a care provider, the department or an employer shall determine whether the person’s name and date of birth appear on the registry. Neither the department nor an employer shall hire, utilize the services of, or employ a person whose name and date of birth appear on the registry. The department or an employer shall have the prospective employee’s signed consent before making any inquiry to the registry. The department or an employer shall not hire or retain any prospective or current employee who declines to provide such consent. At the time the department or an employer decides to not hire or retain a person whose name and date of birth appears on the registry, the department or employer shall so inform the care provider and shall provide the care provider with the contact information of the commission.
If an employer fails to meet the requirements of this subsection, the commission may: (i) impose a monetary fine of not more than $5,000; (ii) recommend the revocation or downgrade of a license maintained by the employer; (iii) recommend the forfeiture of a state contract; or (iv) impose a combination of such fine, recommendation of license revocation or downgrade or recommendation of state contract forfeiture.
(e) The information maintained in the registry, including the record of its proceedings, shall not be a public record under clause Twenty-sixth of section 7 of chapter 4, or chapter 66. Except as provided in subsection (c), the commission, the division of administrative law appeals and the department shall keep information contained in the registry confidential and shall not disseminate information about a care provider to anyone other than said care provider unless it is necessary for the consideration of the department or an employer when reviewing current or prospective employment of a care provider or otherwise provided by law. All disclosures of information contained in the registry must be made in compliance with regulations promulgated by the commission. These regulations shall include measures determined necessary by the commission to protect the confidentiality of victims, individuals listed on the registry, and third parties related to registrable abuse.
(f) Annually, the commission shall initiate an audit of the registry to ensure compliance with this section, including that all substantiated findings of registrable abuse were added to the registry and proper notification was made to the department, employers, and care providers. A summary of the audit shall be filed, not later than October 31 of each year beginning with October 29, 2021, with the clerks of the senate and house of representatives, the senate and house committees on ways and means and the joint committee on children, families and persons with disabilities. The summary shall include, but not be limited to: (i) the number of substantiated findings of abuse found or not found to have been registrable; (ii) the number of people on the registry; (iii) the number of people who were added to the registry in the last fiscal year; (iv) the number of substantiated findings of registrable abuse that were appealed in the last fiscal year; (v) the number of substantiated findings of registrable abuse that were overturned on appeal in the last fiscal year; (vi) the number of requests made by employers for information from the registry in the last fiscal year and the number of such requests that were granted; (vii) the total number of instances in the last fiscal year in which the commission failed to notify the department or the last known employer of a care provider who was placed on the registry and the reasons for such failures; and (viii) the number of employers found to have failed to meet the requirements of subsection (d) in the last fiscal year. Information contained in the summary shall be in a de-identified and aggregate form.
(g) A person whose name appears on the registry may petition the commission to have the person’s name removed from the registry; provided, however, that such a petition shall not be considered until 5 years after the placement of the person’s name on the registry or 5 years after the conclusion of any prior petition for the removal of the person’s name from the registry, whichever is later. The person whose name appears on the registry shall establish by a preponderance of the evidence that, considering the totality of the circumstances, it is no longer in the interest of persons with intellectual and developmental disabilities and no longer in the public interest, to exclude the registered abuser from working as a care provider.
(h) The commission shall adopt regulations to implement this section.
SECTION 3. Section 9B of chapter 30 of the General Laws, as appearing in the 2018 Official Edition, is hereby amended by striking out, in line 32, the words “thirty-one or chapter one hundred and fifty E” and inserting in place thereof the following words:-
“31 or chapter 150E or a hearing under section 4H of chapter 7 related to a care provider’s placement on the registry of abusers of persons with intellectual or developmental disabilities established under section 15 of chapter 19C”.
SECTION 4. Notwithstanding any general or special law to the contrary, section 15 of chapter 19C of the General Laws shall apply to all substantiated findings of registrable abuse made by the disabled persons protection commission on or after November 2, 2020, regardless of when such registrable abuse took place.
SECTION 5. This act shall take effect on November 2, 2020.