SENATE DOCKET, NO. 1836        FILED ON: 1/18/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 71

The Commonwealth of Massachusetts

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PRESENTED BY:

Michael O. Moore

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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 protect persons with intellectual or developmental disability from abuse.

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PETITION OF:

SENATE DOCKET, NO. 1836        FILED ON: 1/18/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 71

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 64 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 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.

“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 determines that, based on the nature of the act or omission, the care provider is not likely to pose a serious risk of abuse to a person with an intellectual or developmental disability.

(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 and an opportunity to respond in writing, the commission substantiates a finding of registrable abuse, the commission shall include the care provider’s name 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, 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 Commonwealth has established the care providers responsibility for registerable abuse, based on a preponderance of the evidence. The commission shall notify the department and the last known employer of the care provider of the placement on the registry.

(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 appears on the registry. Neither the department nor an employer shall hire, utilize the services of or employ a person whose name appears on the registry.

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. 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 a current or prospective care provider or as provided by law.

(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 December 31 of each year 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 people on the registry; (ii) the number of people who were added to the registry in the last calendar year; (iii) the number of substantiated findings of registrable abuse that were appealed in the last calendar year; (iv) the number of substantiated findings of registrable abuse that were overturned on appeal in the last calendar year; (v) the number of requests made by employers for information from the registry in the last calendar year and the number of such requests that were granted; (vi) the total number of instances in the last calendar 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 (vii) the number of employers found to have failed to meet the requirements of subsection (d) in the last calendar 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.

(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 2016 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 14 of chapter 19C”.

SECTION 4. Notwithstanding any general or special law to the contrary, section 14 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 January 1, 2020, regardless of when such registrable abuse took place.

SECTION 5. This act shall take effect on January 1, 2020.