HOUSE DOCKET, NO. 2744        FILED ON: 1/19/2023

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 174

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Sean Garballey

_________________

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

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

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

_______________

PETITION OF:

HOUSE DOCKET, NO. 2744        FILED ON: 1/19/2023

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 174

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 218 OF 2021-2022.]

The Commonwealth of Massachusetts

_______________

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

_______________

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

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

SECTION 1. Section 4H of chapter 7 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by striking out, in lines 84, 87 and 88, each time they appear, the words “disabled persons protection commission” and inserting in place thereof, in each instance, the following words:-commission for the protection of persons with disabilities.

SECTION 2. Section 19 of chapter 19B is hereby amended by striking out, in lines 126, 139, 280 and 281, 305, 384, 390 and 391, each time they appear, and 394 and 395, the words “disabled persons protection commission” and inserting in place thereof, in each instance, the following words:- commission for the protection of persons with disabilities.

SECTION 3. Chapter 19C is hereby amended by striking out the title, as so appearing, and inserting in place thereof the following title:- COMMISSION FOR THE PROTECTION OF PERSONS WITH DISABILITIES.

SECTION 4. Said chapter 19C is hereby further amended by striking out section 1, and inserting in place thereof the following section:-

Section 1. As used in this chapter, the following words shall have the following meanings unless the context requires otherwise:-

“Abuse”, an act or omission of a caretaker that results in serious physical or serious emotional injury to a person with a disability; provided, however, that no person shall be considered to be abused for the sole reason that such person is being furnished or relies upon treatment in accordance with the tenets and teachings of a church or religious denomination by a duly accredited practitioner of the church or religious denomination.  As used in this chapter, the term abuse includes abuse per se.

“Abuse per se”, an act or omission of a caretaker that, based upon its circumstances, is determined by the commission to be in and of itself abusive, regardless of the manifestation of a serious physical or serious emotional injury to a person with a disability.

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

“Commission”, the commission for the protection of persons with disabilities established under section 2.

“Mandated reporter”, any physician, medical intern, hospital personnel engaged in the examination, care or treatment of persons, medical examiner, dentist, psychologist, nurse, chiropractor, podiatrist, osteopath, public or private school teacher, educational administrator, guidance or family counselor, day care worker, probation officer, social worker, foster parent, police officer, firefighter, paramedic, emergency medical technician,  animal control officer, person employed by a state agency or person employed to provide assistance with a daily living need for a person with a disability who, in their professional capacity, shall have reasonable cause to believe that a person with a disability is suffering from a reportable condition.

“Person with a disability”, a person between the ages of 18 to 59, inclusive, who is a person with an intellectual disability or a person with a developmental disability as defined under section 1 of chapter 123B or who is otherwise mentally or physically disabled and, as a result of that mental or physical disability, is wholly or partially dependent on another to meet that person’s daily living needs.

“Recommendation”, a statement contained in an investigation report prepared pursuant to this chapter that sets forth specific action intended by the investigator to protect a particular person with a disability or similarly situated persons with disabilities from further abuse or risk of abuse and that responds to the specific protective needs of the person with a disability or persons with disabilities.

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

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

SECTION 5. Section 2 of said chapter 19C is hereby amended by striking out the title, and inserting in place thereof the following title: Establishment of the commission for the protection of persons with disabilities; membership; terms; compensation; annual report.

SECTION 6: Section 2 of said chapter 19C is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- There shall be a commission for the protection of persons with disabilities.

SECTION 7. Said section 2 of said chapter 19C is hereby further amended by striking out, in line 5, the words “disabled persons” and inserting in place thereof the following words:- persons with disabilities.

SECTION 8. Said section 2 of said chapter 19C is hereby further amended by striking out the third, fourth, and fifth sentences and inserting in place thereof the following sentences:- The commission shall consist of 3 members to be appointed by the governor, 1 of whom the governor shall designate as chair. Members of the commission shall serve for a term of 5 years.

SECTION 9. Said section 2 of chapter 19C is hereby further amended by striking out the ninth sentence, and inserting in place thereof the following sentence:- A person appointed to fill a vacancy occurring other than by the expiration of a term of office shall be appointed for the unexpired term of the member succeeded.

SECTION 10. The first paragraph of section 3 of said chapter 19C is hereby amended by striking out clause (a) and inserting in place thereof the following clause:-

(a) to employ, subject to appropriation, the staff necessary to carry out its duties pursuant to this chapter; provided, however, that the commission shall establish written standards for the position of investigator and shall hire investigators whose education and training qualifies them for the position pursuant to the standards established by the commission; provided further, that the commission shall take the steps necessary to ensure that the conduct of each investigator meets or exceeds the standards; and provided further, that the staff shall serve at the pleasure of the commission and shall not be subject to chapter 31.

SECTION 11. Said section 3 of said chapter 19C is hereby further amended by striking out, in lines 20 and 21, the words “disabled persons” and inserting in place thereof the following words:- persons with disabilities.

SECTION 12. Said section 3 of said chapter 19C is hereby further amended by striking out, in line 22, the words “other state”.

SECTION 13. Said section 3 of said chapter 19C is hereby further amended by striking out, in line 27, the word “nine” and inserting in place thereof the following words:- 5 or section 9.

SECTION 14. Said section 3 of said chapter 19C is hereby further amended by striking out, in lines 28 and 29, the words “disabled persons” and inserting in place thereof the following words:- persons with disabilities.

SECTION 15. Said section 3 of said chapter 19C is hereby further amended by striking out, in lines 31 and 32, the words “the provisions of chapters sixty-six and sixty-six A” and inserting in place thereof the following words:- chapters 66 and 66A; provided, however, that, except as otherwise provided in this chapter, information that is created, collected, used, maintained or disseminated pursuant to this chapter and that is confidential or personally identifiable information pursuant to state or federal law shall not be a public record pursuant to clause Twenty-six of section 7 of chapter 4 or chapter 66.

SECTION 16. The first paragraph of said section 3 of said chapter 19C is hereby amended by striking clauses (h) and (i) and inserting in place thereof the following 2 clauses:-

(h) to establish within the commission a special investigative unit that shall have sole responsibility for the initial evaluation or investigation of all reports of abuse received by the commission in connection with which there is an allegation of criminal conduct; provided, however, that the colonel of state police shall assign not less than 5 state police officers to the special investigative unit; and

(i) to promulgate rules and regulations establishing procedures to exclude personally identifiable information regarding the subjects of investigations and to carry out the responsibilities of this chapter in such a way as to disclose as little personally identifiable information as possible.

SECTION 17. Section 4 of said chapter 19C is hereby amended by striking out, in line 1, the words “disabled person” and inserting in place thereof the following words:- person with a disability, and subject to the commission’s authority to conduct its own investigation.

SECTION 18. The first paragraph of said section 4 of said chapter 19C is hereby amended by striking out clauses (b) and (c) and inserting in place thereof the following 3 clauses:-

(b) refer immediately any such report that alleges the occurrence of abuse of a person with a disability whose caretaker is a state agency to the state agency within the executive office of health and human services that is the primary service providing agency for the disability manifested by the person with a disability; provided, however, that as assigned by the commission, the commission or the referral agency subject to the oversight of the commission shall investigate the abuse as provided in section 5; and provided further, that, if a commission investigation is being conducted, the referral agency shall take reasonable steps to avoid unnecessary, unwarranted or counterproductive duplication of the commission’s investigation through an internal investigation or inquiry by the referral agency and shall, when there is duplication, utilize the commission’s investigation in lieu of an internal investigation or inquiry.

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

(d) in accordance with subsections (b) and (c), refer immediately reports that the commission determines present imminent risk of substantial harm to a person with a disability, regardless of whether any serious injury is alleged, for the provision of protective services; provided, however, that the commission may oversee the provision of protective services until such time that the commission determines the risk has been adequately addressed.

SECTION 19. Said section 4 of said chapter 19C is hereby further amended by striking out, in lines 35 and 36, the words “disabled person where the screener” and inserting in place thereof the following words:- person with a disability where the commission staff.

SECTION 20. Said section 4 of said chapter 19C is hereby further amended by striking out, in line 38, the word “screener” and inserting in place thereof the following words:- commission staff.

SECTION 21. Said section 4 of said chapter 19C is hereby further amended by striking out, in line 40, the first time it appears, the word “and” and inserting in place thereof the following word:- or.

SECTION 22. Said section 4 of said chapter 19C is hereby further amended by striking out, in lines 40 to 42, inclusive, the words “and, upon completion of such evaluation and investigation, shall report the results of such evaluation and investigation to the commissioners who” and inserting in place thereof the following word: . Upon completion of such evaluation or investigation, the special investigative unit shall report the results of such evaluation or investigation to the commission that.

SECTION 23. Said section 4 of said chapter 19C is hereby further amended by inserting after the word “initial,” in line 46, the following words:- evaluation or.

SECTION 24. Said section 4 of said chapter 19C is hereby further amended by striking out, in lines 56 and 57, the words “clients of state agencies or of contract providers” and inserting in place thereof the following words:- persons with disabilities.

SECTION 25. Said section 4 of said chapter 19C is hereby further amended by striking out, in line 58, the words “commission’s or department’s”.

SECTION 26. Said section 4 of said chapter 19C is hereby further amended by inserting after the word “investigation”, in lines 58 and 59, the following words:- by the commission or referral agency.

SECTION 27. Section 5 of said chapter 19C is hereby amended by striking out, in lines 1, 13, 50, 63, 73 and 75, the words “disabled person” and inserting in place thereof, in each instance, the following words:- person with a disability.

SECTION 28. Said section 5 of said chapter 19C is hereby further amended by inserting after the word “designated”, in line 2, the following words:- and assigned.

SECTION 29. Said section 5 of said chapter 19C is hereby further amended by striking out, in lines 2 to 4, inclusive, the words “, the general counsel, or a department within the executive office of health and human services”.

SECTION 30. Said section 5 of said chapter 19C is hereby further amended by striking out, in lines 7 and 8, the words “counsel or department of mental health or department of public health” and inserting in place thereof the following words:- department of developmental services, department of mental health or  Massachusetts rehabilitation commission.

SECTION 31. Said section 5 of said chapter 19C is hereby further amended by striking out, in line 9, the words “disabled person’s health or safety” and inserting in place thereof the following words:- health or safety of a person with a disability.

SECTION 32. Said section 5 of said chapter 19C is hereby further amended by striking out, in line 12, the words “the disabled person’s residence and day program, if any” and inserting in place thereof the following words:- any sites relevant to the alleged abuse, which may include, but shall not be limited to, the residence and day program of the person with a disability.

SECTION 33. Said section 5 of chapter 19C is hereby further amended by inserting, in line 14, after the word “injuries” the following words:- or abuse per se.

SECTION 34. Said section 5 of said chapter 19C is hereby further amended by striking out, in lines 17 to 19, inclusive, the words “, to the general counsel and to the department of mental health and the department of public health” and inserting in place thereof the following words:- and to the department of developmental services, the department of mental health or the Massachusetts rehabilitation commission, as appropriate.

SECTION 35. Said section 5 of said chapter 19C is hereby further amended by striking out, in line 22, the word “ten” and inserting in place thereof the following words:- 10, or the employer of the mandated reporter.

SECTION 36. Said section 5 of said chapter 19C is hereby further amended by inserting after the word “the”, in line 24, the first time it appears, the following word:- assigned referral.

SECTION 37. Said section 5 of said chapter 19C is hereby further amended by striking out, in line 30, the word “neither” and inserting in place thereof the following word:- not.

SECTION 38. Said section 5 of said chapter 19C is hereby further amended by striking out, in lines 31 to 33, inclusive, the words, “nor prevent the admission of such documents in any civil or disciplinary proceeding arising out of the alleged abuse or neglect of the disabled person”.

SECTION 39. Said section 5 of said chapter 19C, as so appearing, is hereby further amended by striking out, in lines 43 and 44, the words “the facility named in the report, if any,” and inserting in place thereof the following words:- any sites relevant to the report.

SECTION 40. Said section 5 of said chapter 19C is hereby further amended by striking out, in line 45, the words “residents or clients in the same facility” and inserting in place thereof the following words:- persons with disabilities.

SECTION 41. Said section 5 of said chapter 19C is hereby further amended by striking out, in lines 46 and 47, the words “, the general counsel, the department of mental health and the department of public health within” and inserting in place thereof the following words:- and to the department of developmental services, the department of mental health or the Massachusetts rehabilitation commission, as appropriate, within.

SECTION 42. Said section 5 of said chapter 19C is hereby further amended by striking out, in line 52, the words “, the general counsel, the attorney general”.

SECTION 43. Said section 5 of said chapter 19C is hereby further amended by striking out, in line 54, the words “six of chapter thirty-eight” and inserting in place thereof the following words:- 3 of chapter 38.

SECTION 44. Said section 5 of said chapter 19C is hereby further amended by striking out, in line 55, the word “ten” and inserting in place thereof the following words:- 10 business.

SECTION 45. Said section 5 of said chapter 19C is hereby further amended by striking out, in lines 56, 58 and 61, the word “misconduct” and inserting in place thereof, in each instance, the following word:- abuse.

SECTION 46. Said section 5 of said chapter 19C is hereby further amended by striking out, in lines 59 and 60, the words “ respond in writing prior to the issuance of said report” and inserting in place thereof the following words:- petition for review.

SECTION 47. Said section 5 of said chapter 19C is hereby further amended by striking out, in line 67, the word “shall” and inserting in place thereof the following words:- may refer any matters for which there is reason to believe that a violation of any statute, regulation or rule has occurred to the agency of the commonwealth that has jurisdiction over the alleged violation. In addition, the commission, notwithstanding any provisions of chapter 66A regarding personal data to the contrary, shall.

SECTION 48. Said section 5 of said chapter 19C is hereby further amended by striking out, in lines 77 to 79, inclusive, the words “or (c) a disabled person has suffered serious bodily injury as a result of a pattern of repetitive actions or inactions by a caretaker” and inserting in place thereof the following words:- (c) a person with a disability has suffered serious bodily injury as a result of a pattern of repetitive acts or omissions by a caretaker; or (d) any other criminal offense has occurred that has caused harm to a person with a disability.

SECTION 49. Said chapter 19C is hereby further amended by striking out section 6 and inserting in place thereof the following section:-

Section 6. The commission, acting through agencies within the executive office of health and human services designated by the commission to provide protective services and as necessary to prevent further abuse in cases investigated pursuant to this chapter and subject to the oversight of the commission, shall:

(i) furnish protective services to a person with a disability with the consent of the person or the person’s guardian;

(ii) petition the court for appointment of a conservator or guardian or for issuance of an emergency order for protective services as provided in section 7; or

(iii) furnish protective services to a person with a disability on an emergency basis as provided in said section 7.

SECTION 50. Section 7 of said chapter 19C is hereby amended by striking out, in lines 1 and 2, the words “the general counsel, the department of mental health or the department of public health,” and inserting in place thereof the following words:- the department of developmental services, the department of mental health or the Massachusetts rehabilitation commission.

SECTION 51. Said section 7 of said chapter 19C is hereby further amended by striking out, in lines 4, 6 and 7, 12, 13, 16, 17 and 18, each time they appear, 20 and 21, 22, 29, 35, 39 and 40, 46, 47 and 48, 59, each time they appear, 61, 65, 67 and 68, the words “disabled person” and inserting in place thereof, in each instance, the following words:- person with a disability.

SECTION 52. Said section 7 of said chapter 19C is hereby further amended by striking out, in lines 5 and 6, 9, 33 and 34, 37 and 62, the words “, counsel or department” and inserting in place thereof, in each instance, the following words:- or agency.

SECTION 53.  Section 8 of chapter 19C is hereby amended by striking out, in the section title, the words “disabled persons” and inserting in place thereof the following words: - persons with disabilities.

SECTION 54. Said section 8 of said chapter 19C is hereby further amended by striking out, in line 2, the words “disabled person” and inserting in place thereof the following words:- person with a disability.

SECTION 55. Said section 8 of said chapter 19C is hereby further amended by striking out, in line 6, the words “disabled persons” and inserting in place thereof the following words:- a person with a disability.

SECTION 56. Section 9 of said chapter 19C is hereby amended by striking out clause (d), as so appearing, and inserting in place thereof the following clause:-

(d) refer any matters for which there is reason to believe that abuse has occurred by a state agency or its employee to the agency of the commonwealth funding, contracting or under agreement with, or licensing such party for termination of the funding, agreement, contract, or license or for such other action that the agency of the commonwealth deems appropriate.

SECTION 57. Section 10 of said chapter 19C is hereby amended by striking out, in line 3, the word “orally”.

SECTION 58. Section 10 of said chapter 19C is hereby further amended by striking out, in lines 4 and 5, the words “and shall report in writing within forty-eight hours after such oral report”.

SECTION 59. Said section 10 of said chapter 19C is hereby further amended by striking out, in lines 7, 13, 19 and 29, the words “disabled person” and inserting in place thereof the following words:- person with a disability.

SECTION 60. Said section 10 of said chapter 19C is hereby further amended by striking out, in lines 10 and 11, the words “six of chapter thirty-eight” and inserting in place thereof the following words:- 3 of chapter 38.

SECTION 61. Said section 10 of said chapter 19C is hereby further amended by inserting after the word “file”, in line 12, the following word:- a.

SECTION 62. Said section 10 of said chapter 19C is hereby further amended by striking out, in lines 27 and 28, the words “in any civil action arising out of a report made pursuant to this chapter” and inserting in place thereof the following words:- participation in an investigation, hearing, or other proceeding conducted pursuant to this chapter.

SECTION 63. Said section 10 of said chapter 19C is hereby further amended by striking out, in lines 32 and 33, the words “oral and written reports, who fails to do so,” and inserting in place thereof the following words:- a report and who fails to do so.

SECTION 64. Section 11 of said chapter 19C is hereby amended by striking out, in line 6, the words “the general counsel or”.

SECTION 65. Said section 11 of said chapter 19C is hereby further amended by striking out, in line 9, the words “disabled person” and inserting in place thereof the following words:- person with a disability.

SECTION 66. The third paragraph of said section 11 of said chapter 19C, as so appearing, is hereby amended by inserting after the first sentence the following sentence:- The commission may investigate any allegation under this section pursuant to section 5 or 9.

SECTION 67. Section 12 of said chapter 19C is hereby amended by striking out, in lines 10 and 11, the words “, in consultation with the secretary of health and human services,”.

SECTION 68. Said section 12 of said chapter 19C is hereby further amended by striking out, in line 11, the word “formal”.

SECTION 69. Said section 12 of said chapter 19C is hereby further amended by striking out, in lines 12 and 13, the words “, in consultation with the secretary of health and human services,”.

SECTION 70. Said section 12 of said chapter 19C is hereby further amended by striking out, in line 13, the words “a formal” and inserting in place thereof the following word:- an.

SECTION 71. Section 13 of said chapter 19C is hereby amended by striking the title, inserting in place thereof the following title:- Notification by caretaker agency of the death of a person with a disability.

SECTION 72. Section 13 of said chapter 19C is hereby further amended by striking out, in lines 1 and 8, the words “disabled person” and inserting in place thereof, in each instance, the following words:- person with a disability.

SECTION 73. Said section 13 of said chapter 19C is hereby further amended by striking out, in line 6, the word “a” and inserting in place thereof the following word:- any.

SECTION 74. Said section 13 of said chapter 19C is hereby further amended by striking out, in line 4, the word “orally”.

SECTION 75. Said section 13 of said chapter 19C is hereby further amended by striking out, in lines 5, 6 and 7, the following words “, and shall forward to the commission and local law enforcement officials a written report of such death”.

SECTION 76. Section 14 of said chapter 19C is hereby amended by striking out, in lines 2, 3, and 4, the words “the general counsel, or a department within the executive office of health and human services” and inserting in place thereof the following words:- department of developmental services, department of mental health, or the Massachusetts rehabilitation commission,.

SECTION 77. Section 15 of said chapter 19C is hereby amended by inserting, in line 17, after the term “or” as first appearing, the following word:- serious.

SECTION 78. Section 15 of said chapter 19C is hereby further amended, by striking, in line 28, the word “respond”, and inserting in place thereof the following words:- petition for review.

SECTION 79. Section 15 of said chapter 19C is hereby further amended, by striking, in line 31, the word “include”, and inserting in place thereof the following word:- enter.

SECTION 80. Section 15 of said chapter 19C is hereby further amended, by striking, in line 32, the words “name and date of birth” and inserting in place thereof the following words:- name, date of birth, and any other personally identifying information as determined necessary by the commission to confirm the identity of the care provider.

SECTION 81. Section 15 of said chapter 19C is hereby further amended by inserting, in lines 37, 40, 50, 124, 125, 127, 129, 131, and 132, after the word “name”, in each instance, the following words:- and personally identifying information.

SECTION 82. Section 15 of said chapter 19C is hereby further amended by striking out, in lines 65 and 66, 68, and 74 the words “date of birth” and inserting in place thereof, in each instance, the following words:- personally identifying information.

SECTION 83. Section 15 of said chapter 19C is hereby further amended, by striking out, in lines 84 and 85, the words “including the records of its proceedings” and inserting in place thereof the following words:- including the records of the registrable abuse investigation and records of any hearing or other proceeding at the division or judicial appeal, including the personally identifying information of all parties and witnesses.

SECTION 84: Section 15 of said Chapter 19C is hereby further amended by inserting after the word “shall”, in line 85, the following words:- be confidential and shall.

SECTION 85: Section 15 of said Chapter 19C is hereby further amended, by inserting after the word “registry”, in lines 88 and 94, in each instance, the following words:-and any registrable abuse investigation or proceeding at the division or judicial appeal.

SECTION 86. Section 15 of said Chapter 19C is hereby further amended, by striking, in lines 89 and 90, the word “anyone” and inserting in place thereof the following:- any person or entity.

SECTION 87. Section 15 of said Chapter 19C is hereby further amended, by inserting, after the word “registrable”, in line 109, the following words:- in the last fiscal year.

SECTION 88. Section 15 of said Chapter 19C is hereby further amended, by inserting, after the word “registry”, in line 109, the following words:- as of the last day of the last fiscal year.

SECTION 89. Section 220 of chapter 111 is hereby amended by striking out, in lines 20 and 21, the words “disabled persons protection commission” and inserting in place thereof the following words:- commission for the protection of persons with disabilities.