Bill H.142

HOUSE DOCKET, NO. 2111 FILED ON: 1/19/2023

HOUSE . . . . . . . . . . . . . . . No. 142

By Representative Cutler of Pembroke, a petition (accompanied by bill, House, No. 142) of Josh S. Cutler and others relative to community living for older adults and people with disabilities. Children, Families and Persons with Disabilities.

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Third General Court
(2023-2024)

_______________

An Act relative to community living for older adults and people 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. Chapter 30A of the General Laws, as appearing in the 2018 Official Edition, is hereby amended by striking out paragraph (d) of section 20.

SECTION 2. Chapter 30A of the General Laws, as appearing in the 2018 Official Edition, is hereby amended by inserting after section 20 the following section:-

Section 20A. (a) A public body may allow remote participation by any member for any meeting of the public body. For the purposes of this section, the term remote participation means participation by a member of a public body during a meeting of that public body where the member is not physically present at the meeting location.

(b) Members remotely participating in a meeting may vote, shall be considered present and in attendance for all purposes, including for purposes of determining a quorum and for the purposes of section 23D of chapter 39.

(c) All members of the public body participating either remotely or at a meeting location shall be clearly audible to one another.

(d) For any meeting conducted through remote participation, the public body shall make provisions to ensure public access to the deliberations of the public body for interested members of the public through adequate, alternative means. Adequate, alternative means of public access shall mean measures that provide transparency and permit timely and effective public access to the virtual meeting. Such means may include, without limitation, providing public access through telephone, Internet or satellite enabled audio or video conferencing or any other technology that enables the public to clearly follow the proceedings of the virtual meeting while those proceedings are occurring. Documents used for any such meeting should be made available to the public before or at the time of the meeting of the public body. Where allowance for active, real-time participation by members of the public is a specific requirement of a general or special law or regulation, or a charter, local ordinance or by-law, pursuant to which the proceeding is conducted, any alternative means of public access shall provide for such participation. A public body shall offer its selected alternative means of public access to virtual meetings without subscription, toll, or similar charge to the public.

(e) A public body that elects to conduct its proceedings remotely shall ensure that any party entitled or required to appear before it may do so through remote means, as if the party were a member of the public body participating remotely.

(f) The executive body of a municipality shall develop and adopt standards and guidelines for remote participation of public bodies that is sufficient for the municipality prior to any remote meeting held pursuant to this law.

SECTION 2. The first paragraph of section 13A of chapter 22 of the General Laws, as appearing in the 2018 Official Edition, is hereby amended by striking out the second and third sentences and inserting in place thereof the following 3 sentences:-

“Two of the appointive members shall be architects licensed to practice in the commonwealth. One of the appointive members shall be a licensed building inspector. Three of the appointive members shall be selected after consultation with advocacy groups on behalf of persons with disabilities”

SECTION 3. The first paragraph of section 13A of chapter 22 of the General Laws, as so appearing, is hereby further amended by striking out the fourth paragraph, in lines 38 through 63, and inserting in place thereof the following four paragraphs:-

The board shall make and from time to time alter, amend, and repeal, in accordance with the provisions of chapter thirty A, rules and regulations designed to make multiple dwellings, and public buildings and facilities, including but not limited to areas that are not generally in public use, accessible to, functional for and safe for use by persons with disabilities. The board shall also make rules and regulations requiring that any person who has lawful control of improved or enclosed private property used as off-street parking areas where the public has a right of access as invitees or licensees, shall reserve parking spaces in said off-street parking areas for vehicles authorized to display handicapped plates or placards under section 2 of chapter 90; provided, that the parking requirements shall be consistent with the Americans with Disabilities Act Standards for Accessible Design. The parking spaces reserved for vehicles of such handicapped persons shall be clearly marked as such.

The rules and regulations of the board shall also establish standards and procedures designed to make adaptable for persons with physical disabilities for any building, regardless of the date of construction, (1) all dwelling units in multiple dwellings equipped with an elevator; (2) all ground floor dwelling units in multiple dwellings not equipped with an elevator; and (3) all public use and common use portions of such multiple dwellings, providing however, that in any building constructed before March thirteenth, nineteen hundred and ninety one, such standards and procedures for dwelling units shall apply only to such units within (1) any non-residential building undergoing a gut rehabilitation as part of a change in use into a multiple dwelling facility, or (2) any residential building which is vacant undergoing a gut rehabilitation.

The rules and regulations of the board shall establish standards and procedures designed to make accessible to, functional for and safe for use by persons with physical disabilities residential buildings whenever constructed and without the restrictions in the above paragraph. Unless otherwise specified, five percent of the units in lodging or residential facilities for hire, rent or lease, containing twenty or more units, shall meet this requirement; provided, however, that accessible units shall allow five feet of turning radius for a wheelchair in the kitchens and bathrooms. In the event that the board determines that the need, in certain areas of the commonwealth, for such units either exceeds or does not require said five percent, the board may require that, in said areas a percentage of units less than five percent or not greater than ten percent be accessible and safe for persons with disabilities; provided, however, that said accessible units shall allow five feet of turning radius for a wheelchair in the kitchens and bathrooms. The board may make such determination only if there is sufficient factual basis, using data from the central registry of the Massachusetts Rehabilitation Commission and other sources, to establish with a reasonable degree of certainty the present and future needs for said accessible units in certain areas of the commonwealth. A percentage of less than five percent shall not be established unless such accessible units, which are not needed by persons with disabilities cannot be readily hired, rented, or leased to other persons.

The rules and regulations of the board shall include, but not be limited to, detailed architectural standards further defining adaptable and accessible dwelling units, and such other provisions necessary to provide rights and remedies substantially equivalent to or greater than the rights and remedies provided by the Federal Fair Housing Act, the Department of Justice’s Americans with Disabilities Act Standards for Accessible Design and regulations thereunder as they pertain to such multiple dwellings.

SECTION 4. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out, in lines 11 and 12, the words “in behalf of the physically handicapped” and inserting in place thereof the following words:-

“on behalf of persons with disabilities”.

SECTION 5. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the word “buildings”, in line 67, the following words:-

“and facilities”.

SECTION 6. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the word “buildings”, in line 75, the following words:-

“and facilities”.

SECTION 7. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out, in lines 80 and 81, the words “handicapped persons,” and inserting in place thereof the following words:-

“persons with a disability”.

SECTION 8. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out, in lines 88 and 89 the word “newspaper” and inserting in place thereof the following words:-

“forms of”.

SECTION 9. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the word “building”, in line 93, the following words:-

“or facility, including Areas not generally in Public Use”

SECTION 10. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the word “building”, in line 94, the following words:-

“or facility”.

SECTION 11. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the word “changed to a”, in line 94, the following words:-

“residential use or a”.

SECTION 12. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting, in line 94, after the words “which the building” the following words:-

“or facility.”

SECTION 13. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the word “building”, in line 96, the following words:-

“or facility”.

SECTION 14. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out, in lines 102 and 103, the words “physically handicapped persons” and inserting in place thereof the following words:-

“persons with a disability”.

SECTION 15. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out the eighth paragraph, consisting of lines 107 through 127.

SECTION 16. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out, in lines 131 and 132, the word “person” and inserting in place thereof the following words:-

“building, or portion thereof,”.

SECTION 17. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the words “for a building”, in line 150, the following words:-

“or facility”.

SECTION 18. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the word “building”, in line 166, the following word:-

“, facility”.

SECTION 19. Said section 13A of said chapter 32, as so appearing, is hereby further amended by striking out, in lines 177, 179 and 187 the words “physically handicapped persons” and inserting in place thereof, in each instance, the following words:-

“persons with a disability”.

SECTION 20. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the definition of “Alteration”, the following definition:-

“Areas that are not generally in public use,” areas not intended for use by the public, as designated in the 1991 and 2010 Americans with Disabilities Act (ADA) Standards for Accessible Design, and employee work areas.

SECTION 21. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the definition of “Construction” the following definitions:-

“Employee work area” all or any portion of a space used only by employees and used only for work. Corridors, toilet rooms, kitchenettes and break rooms are considered “employee work areas” and shall be made accessible in new construction, or where renovation work being performed is otherwise subject to the jurisdiction of the Board. Corridors, toilet rooms, kitchenettes and break rooms are not otherwise considered “employee work areas;” provided however, that where corridors, toilet rooms, kitchenettes and break rooms constitute the path of travel to or are essential to the use of employees for work, they shall be, when possible, adaptable.

“Facility”, all or any portion of a building, structure, site improvement, complex, equipment, road, walk, passageway, parking lot or other real or personal property, including the site where the building, property, structure or equipment is located.”

“Gut rehabilitation,” the general replacement of the interior of a building that may or may not include changes to structural elements such as flooring systems, columns or load bearing interior or exterior walls.

SECTION 22. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out the definition of “Public building” and inserting in place thereof the following definition:-

“Public building", buildings constructed by the commonwealth or any political subdivision thereof with public funds and open to public use, including, but not limited to, those constructed by public housing authorities, the Massachusetts Port Authority, the Massachusetts Parking Authority, the Massachusetts Department of Transportation, the Massachusetts Bay Transportation Authority, or building authorities of any public educational institution, or their successors; and privately financed buildings that are open to and used by the public, including but not limited to places of public accommodation listed in section 92A of chapter 272 of the General Laws, and 42 U.S.C. section 12181(7).

SECTION 23. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out, in line 200, the words “Physically handicapped person” and inserting in place thereof the following words:-

“Person with a disability”.

SECTION 24. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out, in line 204, the words “Physically handicapped persons” and inserting in place thereof the following words:-

“A person with a disability.”

SECTION 25. Not later than ninety days after the effective date of this act, the Architectural Access Board shall promulgate regulations as necessary pursuant to this act’s amendments of Chapter 22, section 13A.

SECTION 26. Notwithstanding section 5K of chapter 59 of the General Laws or any other general or special law to the contrary, a city or town that has accepted said section 5K may reduce the real property tax obligations of persons over the age of 60 who would have otherwise qualified for such reduction pursuant to said section 5K but for an inability to complete the volunteer requirements due to a lack of volunteer opportunities resulting from restrictions imposed in response to the 2019 novel coronavirus pandemic, also known as COVID-19; provided, that no reduction of said real property tax bill shall exceed $1,500 in a given tax year.

SECTION 27. This act shall expire upon the termination of the governor’s March 10, 2020 declaration of a state of emergency to respond to COVID-19.

SECTION 28. Chapter 23B of the General Laws is hereby amended by adding the following 7 sections:-

Section 29. As used in section 31 to 37, inclusive, the following words shall have the following meanings, unless the context clearly requires otherwise:-

“Accessibility features”, accessibility features that meet the specifications of an existing standard including: (i) accessibility ramp to a zero-step entrance from a driveway or public sidewalk; (ii) zero-step entrance; (iii) doors with at least 32 inches of clear width; (iv) hallways and passages with at least 36 inches of clear width; (v) accessible light switches, electrical outlets and environmental controls; (vi) accessible bathroom; (vii) accessible and useable kitchen facilities; (viii) retrofitting of an existing unit to include permanently installed lifts or elevators; (ix) purchase and permanent installation of a backup electric generator for life sustaining electric-powered medical equipment for devices such as respirators, oxygen concentrators or dialysis machines; and (x) installation of a permanent home monitoring system for residents with Alzheimer’s disease and other forms of dementia.

“Commission”, the Massachusetts rehabilitation commission established pursuant to section 74 of chapter 6.

“Disability”, a physical or mental impairment that substantially limits one or more major life activities of an individual.

“Dwelling unit”, any house or building, or portion thereof, that is occupied, designed to be occupied, or is rented, leased or hired out to be occupied, as a home or residence of 1 or more persons.

“Eligible individual”, an individual who has a disability or the caregiver who owns or rents the residency in which the individual who has a disability will reside.

“Existing standards”, adaptability features prescribed by the Massachusetts state building code, the specifications of the American National Standards Institute, the Uniform Federal Accessibility Standards pursuant to 24 CFR Part 40 or Fair Housing Accessibility Guidelines pursuant to 24 CFR Part 100.

“Post-retrofit documentation”, evidence that the project has been completed including, but not limited to: (i) before and after pictures of the area that is retrofitted; (ii) copies of purchase contracts; (iii) invoices; (iv) cancelled checks; and (v) construction contracts.

“Sensory modification”, alarms, appliances and controls designed to assist sensory disabled individuals that are installed as a permanent part of the structure to the dwelling unit; provided, however that sensory modifications shall not include appliances or alarms that can be removed and reinstalled in another dwelling unit.

Section 30. (a) Any eligible individual, who intends to retrofit or contract with an individual or company to retrofit an existing dwelling unit; provided, that such retrofitting meets the qualification criteria as established in section 33, and meets the eligibility requirements established by guidelines developed by the department in consultation with the commission, shall be eligible for a livable home modification grant equal to not more than 50 per cent of the total amount spent; provided, that said livable home modification grant shall not exceed $5,000.

(b) An eligible individual who has a disability, a caregiver or a guardian may apply for a livable home modification pursuant to section 34.

Section 31. (a) To qualify for a livable home modification grant, the proposed modification or retrofitting of an existing dwelling unit must include at least 1 accessibility feature or sensory modification and meet the requirements of an existing standard.

(b) The eligible individual's income in the prior year shall not exceed 120 per cent of the area median income, as determined by the United States Department of Housing and Urban Development. The calculation of an eligible individual’s income shall only include the earnings of the individual with a disability and caregiver, if applicable; provided, that this calculation shall not include household income.

(c) If the eligible individual who has a disability was not required to file a federal tax return in the prior year, the resident shall be automatically eligible for a livable home modification grant; provided, however, that the eligible individual does not qualify or is not eligible for accessibility modifications funded through other local, state or federal programs.

Section 32. (a) Eligible individuals shall apply for a livable home modification grant by making application to the department, which shall issue a certification for an approved application to the individual who has a disability, caregiver or guardian.

(b) The department, in consultation with the commission, shall develop application guidelines that include, but shall not be limited to: (i) assessment of the individual who has the disability and the need for the livable home modifications; and (ii) proof of the eligible resident's income and documentation of any disability related exemptions.

(c) All applications shall be submitted and received by the department prior to the commencement of construction to modify or retrofit an existing residence to install accessibility features or sensory modifications.

Section 33. (a) Livable home modification grants shall only be allowed for the retrofitting or modification of a residential rental property, provided that the owner agrees to maintain the accessibility features or sensory modifications for 10 years.

(b) Individuals and other entities shall not be eligible to receive a livable home modification grant if they are:

(i) eligible for federal or state disabled access tax credits;

(ii) a limited liability company or foreign limited liability company, as defined by section 2 of chapter 156C;

(iii) an S Corporation established pursuant to Subchapter S of Chapter 1 of the Internal Revenue Code, 26 USC §§ 1361 et seq.;

(iv) a cooperative housing corporation, as defined by section 4 of chapter 157B; or

(v) a corporation or foreign corporation, subject to chapter 156.

(c) Accessibility modifications that are eligible to be funded through local, state or federal programs shall not be eligible for livable home modification grants.

(d) Livable home modification grants shall not be used for the purchase or construction of residential rental property.

(e) The department shall not issue more than 1 livable home modification grant to an eligible individual or in relation to the modification or retrofitting of a dwelling unit.

Section 34. Applicants shall submit post-retrofit documentation to the department following the completion of the modification or retrofitting of the dwelling unit.

Section 35. The department shall, not later than August 31, submit an annual report to the governor, speaker of the house, senate president, and chairs of the joint committee on ways and means for preceding fiscal year. The annual report shall include, but shall not be limited to:

(i) number of grants issued to qualifying individuals;

(ii) number of applications that did not qualify;

(iii) total dollar amount of grants issued;

(iv) average dollar amount of the grants issued;

(v) number of retrofits by accessibility features; and

(vi) prognosis and estimated expenses for the individual if the retrofit had not been made, including: (1) increased likelihood of falls and other related emergency room, hospital or rehabilitation expenses; (2) loss of independence; and (3) move into a long-term care facility.

SECTION 36. The director of the department of housing and community development shall promulgate regulations necessary to implement and administer this act.

SECTION 37 Section 25 of Chapter 118E of the General Laws, as appearing in the 2010 Official Edition, is hereby amended in subsection (5) by striking the second paragraph and inserting in place thereof the following paragraph:-

In any case where the monthly income of an applicant or recipient is in excess of the exemptions allowed, the applicant or recipient, if otherwise eligible for Medicaid under this chapter, shall be liable to pay to the provider of medical care or service an amount which shall be equal to the excess income for a period of six consecutive months, which includes the period when such service was provided; provided, however that in such cases where the individual’s gross income is greater than 300% of the federal Supplemental Security Income level but less than the average monthly cost of nursing home care as calculated by the division and the individual is participating in a Home and Community Based Waiver, under 42 USC 1396a(10)(a)(ii)(VI) or a PACE Program, under 42 USC 1396u-4 or 42 USC 1395eee, the division shall charge a premium, equal to the difference between the individual’s gross income and 300% of the federal Supplemental Security Income level, on a monthly basis. The division shall apply for any federal waivers necessary to implement this provision.

SECTION 38. The first paragraph of section 13A of chapter 22 of the General Laws, as appearing in the 2018 Official Edition, is hereby amended by striking out the second and third sentences and inserting in place thereof the following 3 sentences:-

"Two of the appointive members shall be architects licensed to practice in the Commonwealth. One of the appointive members shall be a licensed building inspector. Three of the appointive members shall be selected after consultation with advocacy groups on behalf of persons with disabilities."

SECTION 39. The first paragraph of section 13A of chapter 22 of the General Laws, as appearing in the 2018 Official Edition, is hereby further amended by striking out the fourth paragraph, consisting of lines 38 through 51, and inserting in place thereof the following paragraph:

The board shall make and from time to time alter, amend, and repeal, in accordance with the provisions of chapter thirty A, rules and regulations designed to make public buildings and facilities, including but not limited to areas that are not generally in public use, accessible to, functional for and safe for use by persons with disabilities. The board shall also make rules and regulations requiring that any person who has lawful control of improved or enclosed private property used as off-street parking areas where the public has a right of access as invitees or licensees, shall reserve parking spaces in said off-street parking areas for vehicles authorized to display handicapped plates or placards under section 2 of chapter 90; provided, that the parking requirements shall be consistent with the Americans with Disabilities Act Standards for Accessible Design. The parking spaces reserved for vehicles of such handicapped persons shall be clearly marked as such.

SECTION 40. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out, in lines 11 and 12, the words “in behalf of the physically handicapped” and inserting in place thereof the following words:-

"on behalf of persons with disabilities".

SECTION 41. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the word “buildings”, in line 67, the following words:-

"and facilities".

SECTION 42. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the word “buildings”, in line 75, the following words:-

"and facilities".

SECTION436. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out, in lines 80 and 81, the words “handicapped persons,” and inserting in place thereof the following words:-

"persons with a disability.

SECTION 44. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out, in lines 88 and 89 the word “newspaper” and inserting in place thereof the following words:-

"forms of".

SECTION 45. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the word “building”, in line 93, the following words:-

"or facility including Areas not generally in Public Use”

SECTION 46. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the word “building”, in line 94, the following words:-

"or facility".

SECTION 47. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the word “changed to a”, in line 94, the following words:-

"residential use or a".

SECTION 48. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting, in line 94, after the words “which the building” the following words:-

"or facility."

SECTION 49. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the word “building”, in line 96, the following words:-

"or facility".

SECTION 50. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out, in lines 102 and 103, the words “physically handicapped persons” and inserting in place thereof the following words:-

"persons with a disability".

SECTION 51. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out the eighth paragraph, consisting of lines 107 through 127.

SECTION 52. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out, in lines 131 and 132, the word “person” and inserting in place thereof the following words:-

"building, or portion thereof,".

SECTION 53. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the words “for a building”, in line 150, the following words:-

"or facility".

SECTION 54. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the word “building”, in line 166, the following word:-

", facility".

SECTION 55. Said section 13A of said chapter 32, as so appearing, is hereby further amended by striking out, in lines 177, 179 and 187 the words “physically handicapped persons” and inserting in place thereof, in each instance, the following words:-

"persons with a disability".

SECTION 56. Said section 13A of said chapter 22, as so appearing, is hereby further

amended by inserting after the definition of “Alteration”, the following definition:

SECTION 57. Said section 13A of said chapter 22, as so appearing, is hereby further amended by inserting after the definition of “Construction” the following definitions:-

“Employee work area”:-

"Employee work area," all or any portion of a space used only by employees and used only for work. Corridors, toilet rooms, kitchenettes and break rooms are considered “employee work areas” and shall be made accessible in new construction, or where renovation work being performed is otherwise subject to the jurisdiction of the Board. Corridors, toilet rooms, kitchenettes and break rooms are not otherwise considered “employee work areas;” provided however, that where corridors, toilet rooms, kitchenettes and break rooms constitute the path of travel to or are essential to the use of employees for work, they shall be, when possible, adaptable.

SECTION 58. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out the definition of “Public building” and inserting in place thereof the following definition:-

“Public building'', buildings constructed by the commonwealth or any political subdivision thereof with public funds and open to public use, including, but not limited to, those constructed by public housing authorities, the Massachusetts Port Authority, the Massachusetts Parking Authority, the Massachusetts Department of Transportation, the Massachusetts Bay Transportation Authority, or building authorities of any public educational institution, or their successors; and privately financed buildings that are open to and used by the public, including but not limited to places of public accommodation listed in section 92A of chapter 272 of the General Laws, and 42 U.S.C. section 12181(7).

SECTION 59. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out, in line 200, the words “Physically handicapped person” and inserting in place thereof the following words:-

"Person with a disability".

SECTION 60. Said section 13A of said chapter 22, as so appearing, is hereby further amended by striking out, in line 204, the words “Physically handicapped persons” and inserting in place thereof the following words:-

"A person with a disability."

SECTION 61. Chapter 118E of the General Laws is hereby amended by striking out section 31 and inserting in place thereof the following section:-

Section 31. (a) This subsection shall apply to estates of individuals dying prior to April 1, 1995. There shall be no adjustment or recovery of medical assistance correctly paid except as follows:

(1) Recovery from the Permanently Institutionalized: From the estate of an individual, regardless of age, who was an inpatient in a nursing facility or other medical institution when the individual received such assistance. Recovery of the assistance shall be limited to assistance provided on or after March 22, 1991.

(2) Recovery from Persons Age 65 and Over: From the estate of an individual who was 65 years of age or older when the individual received such assistance. Any recovery may be made only after the death of the surviving spouse, if any, and only at a time when the individual has no surviving child who is under age 21 or is blind or permanently and totally disabled. The division shall waive recovery where it would result in undue hardship, as defined by the division in its regulations.

(b) This subsection shall apply to estates of individuals dying on or after April 1, 1995 in which a petition for admission to probate of a decedent's will or for administration of a decedent's estate is filed prior to [the effective date of the amendment]. There shall be no adjustments or recovery of medical assistance correctly paid except as follows:

(2) Recovery from Persons Age 65 and Over: From the estate of an individual who was 65 years of age or older when the individual received the assistance.

(3) Recovery from Persons Age 55 and Over for Post–October 1, 1993 Medicaid: From the estate of an individual who was 55 years of age or older when the individual received such assistance, where the assistance was for services provided on or after October 1, 1993.

Any recovery under this subsection may be made only after the death of the surviving spouse, if any, and only at a time when the individual has no surviving child who is under age 21 or is blind or permanently and totally disabled. The division shall waive recovery if recovery would work an undue hardship, as defined by the division in its regulations.

(c) This subsection shall apply to estates of individuals dying on or after April 1, 1995 in which a petition for admission to probate of a decedent's will or for administration of a decedent's estate is filed on or after [effective date of amendment]. There shall be no adjustments or recovery of medical assistance correctly paid except as follows:

(1) Recovery from the Permanently Institutionalized: From the estate of an individual, regardless of age, who was an inpatient in a nursing facility or other medical institution within the meaning of 42 USC 1396p(a)(1)(B)(i) when he or she received such assistance. Recovery of such assistance shall be limited to assistance provided on or after March 22, 1991.

(2) Recovery from Persons Age 55 and Over for Post–October 1, 1993 Medicaid: From the estate of an individual who was 55 years of age or older when the individual received such assistance, where such assistance was for services provided on or after October 1, 1993, but only for medical assistance consisting of nursing facility services, home and community-based services, and related hospital and prescription drug services for which estate recovery is mandated by 42 USC 1396p(b)(1)(B)(i) or other federal law.

Any recovery under this subsection may be made only after the death of the surviving spouse, if any, and only at a time when the individual has no surviving child who is under age 21 or is blind or disabled. The division shall not recover for capitated payments made to managed care entities that exceed the actual cost of medical services received by the decedent.

The division shall waive recovery:

(i) if such recovery is not cost effective, including when the total gross assets of the estate, less any claims that have priority over MassHealth, or mortgages or liens on real property, in a probate estate are $25,000 or less; or

(ii) if such recovery would create an undue hardship. The division shall promulgate regulations defining undue hardship that shall include, but not be limited to, cases in which:

(A) a sale of real property would be required to satisfy a claim against the probate estate; and the property is occupied as the home of a surviving spouse, child under age 21, child of any age who is blind or disabled, surviving sibling with a legal interest in the property or a child to whom the decedent could have transferred the home during his or her lifetime with no transfer of asset penalty pursuant to 42 USC 1396p(c)(2)(A) or (B); or

(B) a sale of real property would be required to satisfy a claim against the probate estate, and the property is occupied as the home of an individual who has lived in it for at least 1 year prior to the death of the decedent provided that if at the time of death the decedent was a nursing facility resident, the individual must have lived in the home for at least 1 year prior to the decedent’s nursing facility admission, has inherited or received a legal or equitable interest in the property, is not being forced to sell by other devisees or heirs at law and whose income is 400 per cent of the federal poverty level or less at the time of the decedent’s death; or

(C) a sale of real property would be required to satisfy a claim against the probate estate, at the time the notice of claim is filed the property is occupied as the home of an individual who has lived in it for at least 2 consecutive years prior to the decedent becoming institutionalized or before the decedent’s death, and during that time the individual provided a level of care that kept the decedent from needing to be admitted to a nursing home, and the individual has inherited or received a legal or equitable interest in the property, and is not being forced to sell by other devisees or heirs at law; or

(D) the gross income of a devisee or heir was 400 per cent of the federal poverty level or less during the 2 years prior to the date of presentment of the division’s claim, in which case, the division shall waive recovery in an amount equal to the value of the devisee’s or heir’s interest in the estate up to a maximum of $50,000 per qualifying individual; provided, if there are multiple individuals who qualify for this waiver, the maximum amount waived is $100,000 per estate; or

(E) the sale of a homestead of modest value, as defined by the division consistent with federal guidelines, would be required to satisfy the claim; or

(F) other compelling circumstances in which recovery would create a financial hardship for one or more devisees or heirs at law whose income is 400 percent of the federal poverty level or less.

(d) For purposes of this section, ''estate'' shall mean all real and personal property and other assets includible in the decedent's probate estate under the General Laws, provided that it shall not include certain property of American Indians that the Secretary has exempted from Medicaid estate recovery pursuant to 42 USC 1396p(b)(3)(B) or Government reparation payments to special populations that are exempt from Medicaid estate recovery pursuant to federal law.

(e) There shall be no adjustments or recovery of medical assistance correctly paid from the estate of an individual who was receiving such assistance pursuant to the CommonHealth program for disabled adults.

(f) For purposes of this section, medical assistance shall not include medical assistance for medicare cost-sharing or for benefits described in 42 USC 1396a(a)(10)(E) that are exempt from Medicaid estate recovery.

(g) The division is also authorized during an individual's lifetime to recover all assistance correctly provided on or after April 1, 1995, if property against which the division has a lien or encumbrance under section 34 is sold. No lien or encumbrance shall be valid against any bona fide purchaser for value or take priority against any subsequent mortgagee for value unless and until it is recorded in the registry of deeds where the property lies.

Repayment shall not be required under this subsection while any of the following relatives lawfully resides in the property: (1) a sibling who had been residing in the property for at least 1 year immediately prior to the individual being admitted to a nursing facility or other medical institution; or (2) a child who (i) had been residing in the property for at least two years immediately prior to the parent being admitted to a nursing facility or other medical institution; (ii) establishes to the satisfaction of the division that the child provided care which permitted the parent to reside at home during that 2-year period rather than in an institution; and (iii) has lawfully resided in the property on a continuous basis while the parent has been in the medical institution.

If repayment is not yet required because a relative specified above is still lawfully residing in the property and the individual wishes to sell the property, the purchaser shall take possession subject to the lien or the division shall release the lien if the individual agrees to (1) either set aside sufficient assets to satisfy the lien or give bond to the division with sufficient sureties and (2) repay the division as soon as the specified relative is no longer lawfully residing in the property. Notwithstanding the foregoing or any general or special law to the contrary, the division and the parties to the sale may by agreement enter into an alternative resolution of the division's lien. This subsection shall not limit the division's ability to recover from the individual's estate under subsection (a), (b), or (c) or as otherwise provided under any general or special law. The division shall provide a release of any lien where repayment shall not be required within 60 days of receiving notice of the change in circumstances resulting in repayments no longer being required.

SECTION 62. Said chapter 118E is further amended by striking out section 32 and inserting in place thereof the following section:-

Section 32. (a) Notwithstanding any provision of law to the contrary, a petition for admission to probate of a decedent's will or for administration of a decedent's estate shall include a sworn statement that copies of said petition and death certificate have been sent to the division by certified mail in accordance with sections 3–306(f) and 3–403(f) of chapter 190B. Within 30 days of a request by the division, a personal representative shall complete and send to the division by certified mail a form prescribed by the division and provide such further information as the division may require. In the event a petitioner fails to send copies of the petition and death certificate to the division and the decedent received medical assistance for which the division is authorized to recover under section 31, any person receiving a distribution of assets from the decedent's estate shall be liable to the division to the extent of such distribution.

(b) The division may present claims against a decedent's estate as follows: (1) within 4 months after approval of the official bond of the personal representative, file a written statement of the amount claimed with the registry of probate where the petition was filed and deliver or mail a copy thereof to the personal representative. The claim shall be deemed presented upon the filing of the claim in the registry of probate; or (2) within 1 year after date of death of the decedent, commence an action under the provisions of section 9 of chapter 197.

(c) When presenting its claim by written statement under subsection (b), the division shall also notify the personal representative of

(1) the circumstances and conditions which must exist for the division to be required to defer recovery under section 31;

(2) the circumstances and conditions which must exist for the division to waive recovery under its regulations for undue hardship;

(3) how to obtain a detailed accounting of the claim;

(4) limitations on estate recovery related to the decedent having a long term care policy;

(5) the limitation described in subsections (d), (e) and (f) of section 31; and

(6) the personal representative’s obligation to mail a copy of the division’s written statement to all individuals who may be entitled to deferral or waiver of estate recovery pursuant to section 31 and of the personal representative’s obligation to give the division notice of circumstances and conditions for deferral or waiver that he or she has reason to believe exist. The division shall also supply a form that may be used to notify the division of circumstances and conditions that require deferral or waiver of recovery.

(d) If the division presents a claim against the decedent’s estate pursuant to subsection (b) the personal representative shall forthwith send a copy of the written statement by certified mail of the amount claimed to individuals who may be entitled to deferral or waiver of estate recovery pursuant to section 31 and the personal representative shall give the division notice of circumstances and conditions for deferral or waiver that he or she has reason to believe exist. The personal representative shall have 60 days from the date of presentment or 30 days from the date the agency responds to a request for a detailed accounting, whichever is later, to mail notice to the division by certified mail of one or more of the following findings: (1) the claim is disallowed in whole or in part, or (2) circumstances and conditions where the division is required to defer recovery under section 31 exist, or (3) circumstances and conditions where the division will waive recovery for undue hardship under its regulations exist. A notice under clause (2) or (3) shall state the specific circumstances and conditions which exist. The division shall notify the personal representative what supporting documentation it requires to determine if the circumstances in clause (2) or (3) exist and shall cooperate with the personal representative in supplying information in the possession of the agency. The division shall send a written notice to the personal representative stating whether or not it is satisfied that circumstances and conditions under clause (2) or (3) exist. If the division denies that said circumstances exist, its notice shall explain with specificity the reason for the denial and the opportunity for either an administrative hearing before the MassHealth Board of Hearings or a hearing in an action commenced by the division pursuant to subsection (f) if no administrative hearing is requested. Any party aggrieved by a decision of the MassHealth board of hearings may seek a de novo review in any action commenced by the division pursuant to subsection (f). Failure to mail a notice under clauses (1), (2), or (3) within the time allowed from presentment shall be deemed an allowance of the claim for purposes of subsection (g).

(e) If the division at any time within the period for presenting claims under subsection (b) amends the amount due, the personal representative shall have an additional 60 days to mail notice to the division under clause 1 of subsection (d).

(f) If the division receives a disallowance under clause (1) of subsection (d), the division may commence an action to enforce its claim in a court of competent jurisdiction within 60 days after receipt of said notice of disallowance. If the division receives a notice under clause (2) or (3) of said subsection (d), with which it disagrees, the division may commence an action in a court of competent jurisdiction within 60 days after receipt of said notice or within 30 days of a final decision of the MassHealth board of hearings with which it disagrees, whichever is later. If the division commences an action to enforce its claim, any and all costs and fees incurred by the Personal Representative in defense of such claim shall be recognized as costs and expenses incurred in the administration of the estate and such expenses shall be given priority pursuant to clause (1) of subsection (a) of section 3-805 of chapter 190B. If the division fails to commence an action after receiving a notice under clause (2) of said subsection (d), the division shall defer recovery while the circumstances or conditions specified in said notice continue to exist. If the division fails to commence an action after receiving a notice under clause (3) of subsection (d), the division shall waive recovery for undue hardship.

(g) Unless otherwise provided in any judgment entered, claims allowed pursuant to this section shall bear interest at the rate provided under section 6I of chapter 231 commencing 4 months plus 60 days after approval of the official bond of the personal representative. Notwithstanding the foregoing, if the division fails to commence an action after receipt of a notice under clause (2) of subsection (d), interest at the rate provided under section 6I of chapter 231 shall not commence until the circumstances or conditions specified in the notice received by the division under said clause (2) cease to exist. The personal representative shall notify the division within 30 calendar days of any change in the circumstances or conditions asserted in said clause (2) notice, and upon request by the division, shall provide updated documentation verifying that the circumstances or conditions continue to exist. If the division's claim has been allowed as provided herein and no circumstances and conditions requiring that the division defer recovery under section 31 exist, it may petition the probate court for an order directing the personal representative to pay the claim to the extent that funds are available or for such further relief as may be required.

(h) Notice of a petition by a personal representative for a license to sell real estate shall be given to the division in any estate where: (1) the division has filed a written statement of claim with the registry of probate as provided in subsection (b); or (2) the division has filed with the registry of probate a notice, as prescribed under subsection (a) of section 9 of chapter 197, that an action has been commenced.

(i) In all cases where:—

(1) the division determines it may have a claim against a decedent's estate;

(2) a petition for administration of the decedent's estate or for admission to probate of the decedent's will has not been filed; and

(3) more than 1 year has passed from the decedent's date of death, the division is hereby authorized to designate a public administrator to be appointed and to serve pursuant to chapter 194 subject to the time limitations under chapter 190B. Said designation by the division shall include a statement of the amount claimed. This provision shall apply to all estates in which no petition for administration of the decedent's estate or for admission to probate of the decedent's will has been filed as of the effective date of this section, regardless of the decedent's date of death. Said public administrator shall have the same rights and duties as the personal representative and the same 60-day opportunity to send notice to the division

(1) that the claim is disallowed in whole or in part; or

(2) circumstances and conditions where the division is required to defer recovery under section 31 exist; or

(3) circumstances and conditions where the division will waive recovery for undue hardship under its regulations exist.

(j) If the personal representative wishes to sell or transfer any real property against which the division has filed a lien or claim not yet enforceable because circumstances or conditions specified in section 31 continue to exist, the division shall release the lien or claim if the personal representative agrees to (1) either set aside sufficient assets to satisfy the lien or claim, or to give bond to the division with sufficient surety or sureties and (2) repay the division as soon as the circumstances or conditions which resulted in the lien or claim not yet being enforceable no longer exist. Notwithstanding the foregoing provision or any general or special law to the contrary, the division and the parties to the sale may by agreement enter into an alternative resolution of the division's lien or claim.

SECTION 63. Said chapter 118E is further amended by inserting after section 34 the following section:-

Section 34A. (a) The division shall give notice of the conditions in which it may seek estate recovery, including, but not limited to, an explanation of what constitutes an estate, what services and expenses are subject to recovery, what Medicaid spending or property is exempt from estate recovery, the relationship between a life-time lien and estate recovery and provisions for deferral or waiver of estate recovery. The notice shall be in clear and non-technical language with citation to the applicable law. The notice should also explain how an individual may obtain an accounting of the current amount of MassHealth spending potentially subject to recovery. The notice must be supplied to individuals potentially subject to estate recovery at the time of application, at least annually thereafter so long as said individuals are eligible for MassHealth, and at the time any lien is released.

(b) The division shall give an additional notice to any individual who is required to enroll or given the option to enroll in any Medicaid managed care organization, accountable care organization, senior care options plan, integrated care organization, prepaid health plan or any other delivery system in which Medicaid spending takes the form of a fixed monthly premium or other capitated amount who may be subject to estate recovery. Said additional notice shall be prior to enrollment in managed care, and shall explain how the amount of MassHealth spending subject to estate recovery is determined when MassHealth spending is a fixed monthly payment or capitated amount, and how the member may obtain the amount of said fixed payment or capitated amount subject to estate recovery.

SECTION 64. The executive office shall file a state plan amendment or waiver application, as may be required, to implement the provisions of this Act.

SECTION 65. Section 4 of chapter 19A of the general laws is hereby amended by adding in subsection (d) after the word “persons”, the following:-

“Including, but not limited to, providing information about the Program of All-Inclusive Care for the Elderly (PACE), pursuant to 42 CFR Part 460.60, Senior Care Options (SCO) and fee for service (CHOICES).”.”

SECTION 66. Section 4B of chapter 19A of the general laws is hereby amended by adding in the fourth paragraph after the words “referral services to elders” in subsection (1) the following:-

“provided, that said information and referral services shall include, but not be limited to, information about the Program of all-inclusive care for the elderly (PACE) pursuant to 42 CFR Part 460.60; Senior Care Options (SCO) and fee for service (CHOICES).

SECTION 67. Section 9 of chapter 118E of the general laws is hereby amended by striking paragraph four and adding in place there of the following:-

“A person seeking admission to a long-term care facility paid for by MassHealth shall receive pre-admission counseling for long-term care services, which shall include an assessment of community-based service options including but not limited to the Program of all-inclusive care for the elderly (PACE) pursuant to CFR Part 460.60 Senior Care Options (SCO) and fee for service (CHOICES). A person seeking care in a long-term care facility on a private pay basis shall be offered pre-admission counseling. For the purposes of this section, pre-admission counseling shall be conducted by the executive office of health and human services or the executive office of elder affairs or their subcontractors. The executive office of elder affairs shall, in consultation with the office of acute and ambulatory care in the executive office of health and human services, study the advisability and feasibility of using certain Medicaid providers to provide pre-admission counseling. The division shall report to the general court on an annual basis the number of individuals who received pre-admission counseling under this section and the number of diversions to the community generated by the pre-admission counseling program.”

SECTION 68. Section 3 of chapter 40A of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after the last paragraph the following 3 paragraphs:-

No zoning ordinance or by-law shall prohibit or require a special permit for the use of land or structures for an accessory dwelling unit, or the rental thereof, in a single-family residential zoning district on a lot with 5,000 square feet or more or on a lot of sufficient area to meet the requirements of title 5 of the state environmental code established by section 13 of chapter 21A, if applicable; provided, however, that the single-family dwelling or the accessory dwelling unit is occupied by at least 1 person with disabilities or 1 person who is elderly.

As used in this section, “accessory dwelling unit” shall mean a self-contained housing unit, inclusive of sleeping, cooking and sanitary facilities, incorporated within the same structure as a single-family dwelling or in a detached accessory structure and that: (i) maintains a separate entrance, either directly from the outside or through an entry hall or corridor shared with the single dwelling; (ii) shall not be sold separately from the single family dwelling; (iii) is not smaller in floor area than 450 square feet; (iv) may include up to two bedrooms; and (v) is not larger in floor area than ½ the floor area of the single family dwelling or 900 square feet, whichever is smaller; “person with disabilities” shall mean a person who has been determined to be disabled (i) in accordance with criteria established by local by-law or ordinance, if any, or (ii) by the Social Security Administration or MassHealth, notwithstanding any local by-law or ordinance; and “elderly” shall mean a person sixty-five years of age or older.

The zoning ordinance or by-law may require that the single-family dwelling or the accessory dwelling unit be owner-occupied and may limit the total number of accessory dwelling units in the municipality to a percentage not lower than 5 percent of the total non-seasonal housing units in the municipality. The use of land or structures for an accessory dwelling unit may be subject to reasonable regulations concerning dimensional setbacks and the bulk and height of structures. Not more than 1 additional parking space shall be required for an accessory dwelling unit but, if parking is required for the single family dwelling, that parking shall either be retained or replaced. An accessory dwelling unit allowed under this section is considered owner-occupied upon transfer of title of the single-family dwelling in whole or in part to a trust in which at least 1 beneficiary is a person with disabilities or a person who is elderly; provided, however, that either the single-family dwelling or the accessory dwelling unit remains occupied by that beneficiary. Nothing in this paragraph shall authorize an accessory dwelling unit to violate the building, fire, health or sanitary codes, historic or wetlands laws, or ordinances or by-laws.

SECTION 69. The General Laws are hereby amended by inserting after Chapter 19D, the following new chapter: –

Chapter 19D1/2

Section 1: Purpose

(a) The purpose of this chapter is to enable a setting of care that is referred to as personal care homes. This chapter establishes licensing requirements to protect the health, safety and wellbeing of personal care home residents.

(b) Personal care homes are designed to provide safe, humane, comfortable and supportive residential settings for adults who require assistance or supervision with activities of daily living or instrumental activities of daily living, and qualify for the State Home Care Program. Residents who live in personal care homes that meet the requirements in this chapter will receive the encouragement and assistance they need to develop and maintain maximum independence and self-determination.

Section 2: Definitions

When used in this chapter, unless the context requires otherwise, the following terms shall have the following meanings:

''Aging services access point'' or ''ASAP'', any agency designated by the executive office of elder affairs pursuant to section 4B of chapter 19A.

"Commissioner", the commissioner of the department of transitional assistance as established by section 3 of chapter 18, or her designee.

“License”, a certificate of compliance issued by the Secretary permitting the operation of a personal care home, at a given location, for a specific period of time, for a specified capacity.

''MassHealth Senior Care Options" or “SCO program", a program of medical, health and support services covered under Title XIX or Title XVIII of the Social Security Act, provided through senior care organizations.

“Personal care home” or “home”, a premise in which food, shelter and personal assistance or supervision are provided for a period exceeding 24 hours, for no more than six adults who are not relatives of the sponsor, who do not require the services in or of a licensed long-term care facility, but who do require assistance or supervision in activities of daily living or instrumental activities of daily living. The term includes a premise that has held or presently holds itself out as a personal care home and provides food and shelter to no more than six adults who need personal care services, but who are not receiving the services.

“Personal care home administrator” or “administrator”, an individual who is charged with the general administration of a personal care home, whether the individual has an ownership interest in the personal care home, and whether functions and duties are shared with other individuals.

“Secretary”, the secretary of the department of elder affairs as established by section 1 of chapter 19A, or her designee.

“Sponsor”, a person, society, corporation, governing authority or partnership legally responsible for the administration and operation of a personal care home.

“State Home Care Program”, an array of programs enabled by section 4 of chapter 19A that create a continuum of long-term care supports that shall also include the MassHealth Senior Care Options program.

Section 3: Regulations

The secretary may promulgate regulations for the implementation, administration and enforcement of this chapter; provided that regulations pursuant to section four are separate and distinct from regulations pursuant to sections five and six.

Section 4: Licensing of personal care homes

The secretary shall issue for a term of two years, and shall renew for like terms, a license, subject to revocation by it for cause, to any sponsor whom it deems responsible and suitable to establish or maintain a personal care home, which meets the requirements that the secretary established in accordance with her rules and regulations; provided, however, that each personal care home shall be inspected at least once a year.

The secretary may delegate the duty of inspection to an ASAP, and the results of said inspection will inform the secretary’s determination on the issuance or renewal of a license.

For purposes of this section, the secretary’s determination of responsibility and suitability shall include the following factors:

(i) the criminal history of the prospective sponsor, or any officer, director, shareholder or general or limited partner thereof, to which the secretary has been granted access or certification or may be subsequently granted access or certification by the department of criminal justice information services;

(ii) the financial capacity of the prospective sponsor to operate the personal care home in accordance with applicable laws;

(iii) the history of the prospective sponsor in providing home and community based long term care services within the commonwealth measured by compliance with applicable statutes and regulations governing the operation of such services; and

(iv) the history of the prospective sponsor in providing home and community based long term care services in states other than the commonwealth, if any, measured by compliance with the applicable statutes and regulations governing the operation of such services in said states.

(v) any other factors deemed reasonable and necessary by the secretary and promulgated in regulations pursuant to this chapter.

The secretary may, when public necessity and convenience require, or to prevent undue hardship to a sponsor or potential sponsor, under such rules and regulations as it may adopt, grant a temporary provisional or probationary license under this section; provided, however, that no such license shall be for a term exceeding one year.

Section 4A: Exemptions

No person shall advertise, operate or maintain a personal care home without the license required by this chapter; provided, however, that the provisions of this chapter shall not apply to such entities for the original facilities and services for which said entities were originally licensed or organized to provide:

(1) assisted living residence as defined by section 1 of chapter 19D;

(2) convalescent homes, nursing homes, rest homes, charitable homes for the aged or intermediate care facilities for persons with an intellectual disability licensed pursuant to section 71 of chapter 111;

(3) hospices licensed pursuant to the provisions of section 57D of chapter 111;

(4) facilities providing continuing care to residents as defined by section 76 of chapter 93;

(5) congregate housing authorized by section 39 of chapter 121B;

(6) group homes operating under contract with the department of mental health or the department of developmental services;

(7) housing operated for only those duly ordained priests, or for the members of the religious orders of the Roman Catholic church in their own locations, buildings, residences or headquarters to provide care, shelter, treatment and medical assistance for any of the said duly ordained priests or members of the said religious orders; or

(8) Premises where the owner of the real property of the premises has no ownership, control or affiliation with any provider of home-based and community-based personal assistance services at those premises.

Section 4B: Transfer of Ownership

In the case of the transfer of ownership of a personal care home, a prospective transferee, in the capacity of a prospective sponsor, shall submit a notice of intent to acquire such a home to the secretary at least ninety days prior to the transfer of ownership. The notice of intent shall be on a form supplied by the secretary and shall be deemed complete upon submission of all information that the department requires on the notice of intent form and is reasonably necessary to carry out the purposes of this section. Within ninety days of the submission of a completed notice of intent form, the secretary shall determine whether such prospective sponsor is responsible and suitable for licensure. Requests by the secretary for information other than the information required on the notice of intent form shall not extend the ninety day period. Notwithstanding the foregoing, the secretary with the consent of said prospective licensee may extend the ninety day determination period for one additional period not to exceed thirty days.

The prospective sponsor shall be deemed responsible and suitable upon the expiration of the ninety day period, or upon the expiration of said period as extended, if the secretary fails to notify said prospective sponsor in writing of its decision within the ninety day period or within the expiration of the extension period, whichever is applicable.

Upon determination by the secretary that the prospective sponsor is responsible and suitable for licensure, or upon the failure of the department to notify said prospective sponsor in writing of its decision within the required period, and upon a transfer of ownership, the prospective sponsor may file an application for a license that shall have the effect of a license until the secretary takes final action on the application.

If the secretary determines that the prospective sponsor is not suitable for licensure, the secretary's determination shall take effect on the date of the secretary's notice. In such cases, the prospective sponsor shall upon the filing of a written request with the secretary be afforded an adjudicatory hearing pursuant to chapter thirty A. During the pendency of such appeal, the prospective sponsor shall neither operate the facility as a sponsor, nor, without prior approval of the secretary, manage such personal care home.

No transfer of ownership of a personal care home shall occur unless the prospective sponsor has been deemed suitable for licensure in accordance with the provisions of this section.

Section 4C: Denial, suspension, or revocation of license

The secretary may deny, suspend or revoke a license in any case after finding a failure or refusal to comply with the requirements established under this chapter or the regulations promulgated thereunder. Notice of denial, revocation, suspension or modification and the sponsor's or prospective sponsor’s right to an adjudicatory proceeding shall be governed by the provisions of chapter 30A.

In no case shall the revocation of such a license take effect in less than thirty days after written notification by the Secretary to the personal care home.

Section 4D: Licensing Fee

The fee for the issue or renewal of each license shall be determined annually by the commissioner of administration under the provision of section 3B of chapter 7. The fee shall be sufficient to support the direct and indirect costs incurred by the department of elder affairs related to the duties established by section 4, including, but not limited to, costs incurred when the secretary delegates inspection to an ASAP.

Section 4E: Access

The Sponsor or Administrator shall provide, upon request, immediate access to the home, the residents and records to agents of the department of elder affairs, representatives of the ASAP and representatives of the long-term care ombudsman program.

Section 5: Delivery of long-term services and supports

Consistent with the powers enumerated in section 4 of chapter 19A, the secretary shall mobilize the human, physical and financial resources available to develop and implement innovative programs and service models to support residents of personal care homes. The secretary shall encourage the development and availability of personal care homes as a care setting option for individuals who require assistance or supervision with activities of daily living, instrumental activities of daily living or both.

All residents of personal care homes who meet the eligibility requirements of the state home care program as defined in section 2 shall have access to the services and supports provided by the program.

When a personal care home resident is enrolled in the state home care program, a sponsor must accept as full payment for cost of care services the amount of the combined service revenues resulting from the state home care program, and any other formal and informal resources being coordinated through the service plan as maintained by the ASAP. All residents of personal care homes shall have a person-centered care plan maintained and authorized by an ASAP.

Section 6: Resident Contract

The personal care home shall have a signed contract with each resident that specifies the terms of his or her agreement. The secretary shall establish the minimum requirements of the resident contract between the personal care home administrator and the personal care home resident.

The resident contract shall include, but not be limited to, the following:

(1) Information regarding services the resident will receive covered under the ASAP service plan. The ASAP service plan will account for both formal and informal services coordinated for the resident, and in consideration of the service schedules of the other residents within the particular personal care home;

(2) Arrangements for payment, including cost-sharing requirements of the ASAP service plan;

(3) A grievance procedure that requires the initial grievance to be presented to the personal care home administrator, and includes an escalation process for the grievance to be further reviewed first by the ASAP and then by the executive office of elder affairs;

(4) The conditions under which either party may terminate the resident contract; and

(5) Information and acknowledged disclosure regarding how the resident may contact the community care ombudsman.

The term of a resident contract shall not exceed one year and may be renewable for one year at the option of the personal care home resident. A condition of the option is for a person-centered care plan maintained and authorized by the ASAP and approved by the personal care home resident to be in place at the time of extension.

Section 6A: Discharge

The secretary shall establish the procedural requirements for an involuntary discharge, including the notice requirements and the related appeal process, in furtherance of this section.

If a personal care home resident does not meet the terms for occupancy as stated in the resident contract, the personal care home shall not commence involuntary discharge until the administrator has discussed the reasons for the involuntary discharge with the designated representative of the personal care home resident and the ASAP care manager responsible for the service plan. Documentation of the discussions shall be placed in the resident’s record.

A resident may be involuntarily discharged only if one or more of the following occurs:

(1) The resident poses an immediate threat to self or others;

(2) The resident needs mental health services to prevent harm to self or others;

(3) The resident has substantially breached the conditions of the residential contract;

(4) The personal care home sponsor has had its license terminated, suspended, not renewed, or voluntarily surrendered; or

(5) The personal care home can no longer meet the resident’s needs with available support services. Triggering this occurrence requires a signed affirmation by the ASAP responsible for maintaining the service plan. Furthermore, triggering this occurrence requires the clinical review of an ASAP from a contiguous service area with a signed statement confirming that the reviewing ASAP does not object to the involuntary discharge for the reason of no longer being able to meet the resident’s needs with available support services.

The secretary shall establish the procedural requirements for an involuntary discharge, including the notice requirements and the related appeal process.

The administrator shall prepare plans, in consultation with the ASAP, to ensure safe and orderly involuntary discharge while protecting resident health, safety and rights.

Section 7: Supports for Room and Board

The secretary shall coordinate with the commissioner to develop an optional state supplement for recipients of supplemental security income who reside in personal care homes. The optional state supplement shall be no less than the supplement for assisted living. The optional state supplement may exceed the assisted living supplement by no more than ten percent.

The secretary shall recommend, and the commissioner shall establish and routinely revise, a personal needs allowance for residents of personal care homes.

A personal care home shall accept as full payment for room and board the amount of the combined optional state supplement and the supplemental security income payment, minus the personal needs allowance.

Section 8: ASAP Performing as Sponsor

Consistent with section 4B of chapter 19A, an ASAP may, in its role of a nonprofit agency capable of marshaling resources from within the community it serves, serve as sponsor to a personal care home. In such an instance, for the purpose of paragraph six in section 4 of chapter 19A, an ASAP coordinating and receiving the supports for room and board payments related to section 7 of said chapter shall not be considered a direct service.

When performing as a personal care home sponsor, the ASAP shall submit a plan for the review and approval of the secretary that specifies the measures taken to ensure adherence to the requirements of paragraph six in section 4 of chapter 19A.

SECTION 70. Chapter 121B is hereby amended by adding the following section:-

Section 61. (a) For purposes of this section, unless the context clearly requires otherwise, the following words shall have the following meanings:

“Bullying”, the repeated use by one or more residents of employees of, or visitors to, a covered residential community of a written, verbal or electronic expression physical act or gesture or any combination thereof, directed at a victim that: (i) causes physical or emotional harm to the victim or damage to the victim's property; (ii) places the victim in reasonable fear of harm to himself or of damage to his property; (iii) creates a hostile environment for the victim; (iv) infringes on the rights of the victim at a covered residential community; or (v) materially and substantially disrupts the orderly operation of a covered residential community. For the purposes of this section, bullying shall include but not be limited to cyber-bullying, group or social bullying, and mobbing.

“Covered residential community”, a public or privately-owned, multifamily residential housing development subsidized in whole or in part by the U.S. Department of Housing and Urban Development or the Commonwealth of Massachusetts and intended for occupancy primarily or solely persons aged 55 or older and/or persons with disabilities.

“Cyber-bullying”, bullying through the use of technology or any electronic communication, which shall include, but shall not be limited to, any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system, including, but not limited to, electronic mail, internet communications, instant messages, instant messages or facsimile communications. Cyber-bullying shall also include (i) the creation of a web page or blog in which the creator assumes the identity of another person or (ii) the knowing impersonation of another person as the author or posted content or messages, if the creation of impersonation creates any of the conditions enumerated in clauses (i) to (v), inclusive, of the definition of bullying. Cyber-bullying shall also include the distribution by electronic means of a communication to more than one person or the posting of material on an electronic medium that may be accessed by one or more persons, if the distribution or posting creates any of the conditions enumerated in clauses (i) to (v), inclusive or the definition of bullying.

“Group or social bullying” is the attempt by several persons acting together to engage in bullying conduct toward one or more victims by intentional, repeated, aggressive speech or action capable of causing harm.

“Hostile environment”, a situation in which bullying causes the residential environment to be permeated with intimidation, ridicule, or insult that is sufficiently severe or pervasive to interfere with a resident’s peaceful enjoyment of her tenancy or rights as a tenant.

“Mobbing”, is bullying that owner/management employees condone or take part in, with the purpose of demeaning the victim and excluding them from the social life, quiet enjoyment of occupancy, or occupancy status in a covered residential community.

“Owner/managers”, the owner of a covered residential community and/or the property manager or management agent responsible for managing a covered residential community.

“Plan”, a bullying prevention and intervention plan established pursuant to subsection (d).

“Perpetrator”, a person who engages in bullying or retaliation, or an owner/management company whose employees engage in, support or condone bullying, group or social bullying or mobbing.

“Residential property and grounds”, property on which a covered residential community is located or property that is owned, leased, or used by an owner/manager or group of residents for an activity, function, program, instruction or training related to the operation of the residential community.

“Victim”, a person against whom bullying, group or social bullying, mobbing, or retaliation has been perpetrated.

(b) Bullying shall be prohibited: (i) on residential property and ground, at an owner/manager or resident sponsored activity, function or program whether on or off residential grounds or through the use of technology or an electronic device owned, leased, or used by an owner/manager; and (ii) at an owner/manager sponsored location, activity, or function or program that is not located within the covered residential community, or through the use of technology or an electronic device that is not owned, leased, or used by an owner/manager, if the bullying creates a hostile environment in a covered residential community for the victim, infringes on the rights of the victim at a covered residential community or materially and substantially disrupts the orderly operation of a covered residential community. Nothing contained herein shall require an owner/manager to staff any non-residence related activities, functions, or programs.

Retaliation against a person who reports bullying, provides information during an investigation or bullying, or witnesses or has reliable information about bullying shall be prohibited.

(c) The public safety division of the Commonwealth’s attorney general’s office, after consultation with the department of public health, the department of mental health, the executive office of elder affairs, the office on disability, the department of housing and community development, Mass Housing, the Massachusetts district attorneys association, representatives or areawide tenant organizations representing residents of covered residential communities, representatives or areawide associations or resident service coordinators and owner/managers, and experts on bullying, group or social bullying, and mobbing shall, within one year of enactment of this legislation: (i) publish a model plan and training curricula for owner/managers to consider when creating their plans and curricula; and (ii) create and compile list of bullying prevention and intervention resources, evidence-based curricula, best practices and academic-based research that shall be made available to covered residential communities. The resources may include, but shall not be limited to, print, audio, video or digital media; subscription based online services; and on-site or technology-enabled professional development and training sessions. The Division shall biennially update the model plan and the list of the resources, curricula, best practices and research and shall post them on its website. The division shall conduct a biennial confidential survey of residents and management staff to assess the prevalence and extent of bullying and the effectiveness of remedial efforts, and publish the findings while protecting the confidentiality of respondents.

(d) Each owner/manager of a covered residential community shall provide appropriate training on bullying prevention to all employees and residents of a covered residential community. The curriculum shall be evidence-based.

(e) (1) Each covered residential community shall develop, adhere to and update a plan to address bullying prevention and intervention in consultation with residents, any legitimate residents’ association as defined by 24 CFR Part 245, resident support organizations, owner/manager service employees, on-site management staff, professional support personnel, community representatives, local law enforcement agencies, and division staff. The consultation shall include, but not be limited to, notice and a public comment period. The plan shall be adopted and implemented within six months of preparation of a model plan by the division and updated at least biennially.

(2) Each plan shall include, but not be limited to: (i) descriptions of and statements prohibiting bullying, group or social bullying, mobbing, cyber-bullying and retaliation; (ii) clear procedures for residents, owner/manager employees, visitors, relatives, partners, guardians and others to report bullying or retaliation; (iii) a provision that reports of bullying or retaliation may be made anonymously; provided, however, that no disciplinary action shall be taken against a resident or owner/manager employee solely on the basis of an anonymous report; (iv) clear procedures for promptly responding to and investigating reports of bullying or retaliation; (v) the range of remedial actions that may be taken against a perpetrator for bullying or retaliation, including but not limited to employment sanctions or lease enforcement; provided, however, that the remedial actions shall balance the need for accountability with the need to teach appropriate behavior; (vi) clear procedures for restoring a sense of safety for a victim and assessing that victim’s needs for protection; (vii) strategies for protecting from bullying or retaliation a person who reports bullying, provides information during an investigation of bullying or witnesses or has reliable information about an act of bullying; (viii) procedures consistent with state and federal law for promptly notifying the relatives, partners, or guardians of a victim and a perpetrator, if appropriate and authorized by the victim; provided, further, that the relatives, partners and guardians of a victim shall also be notified of the action taken to prevent any further acts of bullying or retaliation, if appropriate and authorized by the victim; and provided, further, that the procedures shall provide for immediate notification pursuant to regulations promulgated under this subsection by the division or person who holds a comparable role to the local law enforcement agency when civil and/or criminal charges may be pursued against the perpetrator; (ix) a provision that a person who knowingly makes a false accusation of bullying or retaliation shall be subject to remedial action or sanction; and (x) a strategy for providing, counseling or referring to appropriate services for perpetrators and victims and for appropriate family members of said residents. The plan shall also reference existing regulatory and lease protections applicable to the covered residential community, including but not limited to grievance procedures and protections for public housing tenants; lease and 24 CFR Part 245, protections for HUD multifamily tenants; and comparable protections for MassHousing tenants in elderly/handicapped housing. Each plan shall also include procedures for victims to appeal confidentially to the division in cases where the alleged perpetrator is the owner/manager or employee of the covered residential community and the resident is concerned about retaliation.

(3) Nothing in this section shall prevent an owner/manager from remediating any discrimination or harassment based on a person’s membership in a legally protected category under local, state or federal law.

(4) The plan for a covered residential community shall include a provision for ongoing professional development and training to build the skills of all employees, including, but not limited to, on-site managers, social service or resident service coordinators, maintenance and office clerical staff, to prevent, identify and respond to bullying. The content of such professional development shall include, but not be limited to: (i) appropriate strategies to prevent bullying incidents; (ii) appropriate strategies for immediate, effective interventions to stop bullying incidents; (iii) information regarding the complex interaction and power differential that can take place between and among one or more perpetrators, victims and witnesses to the bullying; (iv) research findings on bullying, including information about specific categories of residents who have been shown to be particularly at risk for bullying in the environment or covered residential communities, and the role of mental illness, dementia, behavioral disorders, domestic violence and substance abuse as they may affect both victims and perpetrators; (v) information on the incidence and nature of cyber-bullying; and (vi) internet safety issues as they relate to cyber-bullying. The division shall identify and offer information on alternative methods for fulfilling the professional development requirements of this section, at least one of which shall be available at no cost to owners/managers of covered residential communities.

(5) The plan may include provisions for informing relatives, partners, and guardians about the bullying prevention curriculum of the covered residential community and shall include, but not be limited to: (i) how relatives, partners and guardians can reinforce the curriculum and support the owner/manager or division plan; (ii) the dynamics of bullying; and (iii) online safety and cyber-bullying.

(6) The division shall promulgate rules and regulations on the requirements related to an owner/agent’s duties under clause (viii) of the second paragraph of subsection (e).

(f)(1) Each owner/manager shall provide to residents and/or their designees, in appropriate languages or means of communication, annual written notice of the relevant resident-related sections of the plan.

(2) Each owner/manager shall provide to all employees of a covered residential community annual written notice of the plan. The employees at each covered residential community shall be trained biennially on the plan. The relevant section of the plan relating to the duties of employees shall be included in an owner/agent employee handbook or policies.

(3) The plan shall be posted on the website of each owner/manager or a covered residential community, or otherwise made available to residents, staff and interested members of the public.

(g) Each owner/manager shall be responsible for the implementation and oversight of the plan at her covered residential community.

(h) Any employee of a covered residential community, including on-site management staff, social service or resident service coordinator, maintenance or clerical staff, shall immediately report any instance of bullying or retaliation the staff member has witnessed or become aware of to the owner/manager official identified in the plan as responsible for receiving such reports. Upon receipt of such a report, the owner/manager or a designee shall promptly conduct an investigation. If the owner/manager or a designee determines that bullying or retaliation has occurred, the owner/manager or designee shall (i) take appropriate remedial action, in consultation with the victim; and (ii) assist the victim in notifying the local law enforcement agency if the owner/manager or designee believes that civil, criminal or both civil and criminal charges may be pursued against a perpetrator.

(i) If an incident of bullying or retaliation occurs on the grounds of a covered residential community and involves a former resident or employee who is no longer involved in a covered residential community, the owner/manager informed of the bullying or retaliation shall contact law enforcement consistent with the provisions of clause (viii) of the second paragraph of subsection (e).

(j) Nothing in this section shall supersede or replace existing rights or remedies under any other general or special law.

SECTION 71 (a) Notwithstanding any special or general law to the contrary, there shall be a special commission established to study and report on alternatives to the arrest and incarceration for individuals with developmental and intellectual disabilities. The report shall include, but not be limited to, findings and recommendations on: (i) existing options for diverting individuals with disabilities from incarceration; (ii) recommendations for improving the process by which individuals with disabilities are placed; (iii) techniques to identify individuals at risk due to developmental or intellectual disabilities or pervasive mental health conditions; (iv) techniques, services, and other resources to prevent exacerbation of issues.

(b) The commission shall consist of the following 21 members: the secretary of health and human services or a designee, who shall serve as co-chair; the secretary of public safety and security or a designee, who shall serve as co-chair; the commissioner of the department of developmental services or a designee; the commissioner of the department of mental health or a designee; the chairs of the joint committee on the judiciary; the chairs of the joint committee on children, families and persons with disabilities; one member of the senate to be appointed by the president of the senate; one member of the senate to be appointed by the minority leader; one member of the house of representatives to be appointed by the speaker of the house of representatives; one member of the house of representatives to be appointed by the house minority leader of the house of representatives; the president of the Massachusetts Sheriffs’ Association or a designee; the president of the Massachusetts District Attorneys’ Association or a designee; the president of the Massachusetts Chiefs of Police or a designee; the chief counsel of the committee for public counsel services or a designee; a representative from the Arc of Massachusetts; a representative from the Disability Law Center; a representative from the Disability Policy Consortium; a representative from the Center for Public Representation; a representative from Dignity Alliance Massachusetts; a representative from an organization involved with persons who are autistic, to be appointed by the governor; and a clinician with experience working with intellectually and developmentally disabled individuals in the criminal justice system, to be appointed by the governor.

(c) The commission shall file a report of its findings and recommendations, together with drafts of legislation necessary to carry those recommendations into effect, with the clerks of the house of representatives and the senate not later than July 31, 2024.

Name:	District/Address:	Date Added:
Josh S. Cutler	6th Plymouth	1/19/2023
Brian W. Murray	10th Worcester	1/25/2023
Carol A. Doherty	3rd Bristol	2/2/2023
Vanna Howard	17th Middlesex	2/27/2023
James B. Eldridge	Middlesex and Worcester	4/4/2023