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HOUSE DOCKET, NO. 1576         FILED ON: 1/17/2013

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 121

 

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Kay Khan

_______________

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 relative to the authority of the Disabled Persons Protection Commission.

_______________

PETITION OF:

 

Name:

District/Address:

Kay Khan

11th Middlesex

Marcos A. Devers

16th Essex

Paul R. Heroux

2nd Bristol

Brian A. Joyce

Norfolk, Bristol and Plymouth

John J. Lawn, Jr.

10th Middlesex


HOUSE DOCKET, NO. 1576        FILED ON: 1/17/2013

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 121

By Ms. Khan of Newton, a petition (accompanied by bill, House, No. 121) of Kay Khan and others relative to the authority of the Disabled Persons Protection Commission.  Children, Families and Persons with Disabilities. 

 

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 62 OF 2011-2012.]


The Commonwealth of Massachusetts
 

_______________

In the Year Two Thousand Thirteen

_______________

 

An Act relative to the authority of the Disabled Persons Protection Commission.
 

              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 1 of chapter 19C of the General Laws, as appearing in the 2008 Official Edition, is hereby amended as follows:-

              By striking out the first paragraph as so appearing on lines 1-2, and inserting in place thereof the following words: -

                           For the sole purposes of this chapter, the following words shall, unless the context requires otherwise, have the following meanings:-

              Said Section 1 is further amended by striking out the words “disabled person’s” in lines 9-10 and inserting in place thereof the words:-

                               person with a disability

              Said Section 1 is further amended by striking out the words “disabled person” on lines 11 and 15 and inserting in place thereof the words:-

                            person with a disability

              Said Section 1 is further amended by striking out the words “chapter one hundred and twenty-three” on lines 16-17, and inserting in place thereof the following:-

              Chapter 123B –

              Said Section 1 is further amended by striking out the definition of "General Counsel" or "counsel" on lines 20-21.

              Said Section 1 is further amended by striking out the words “disabled persons” on line 30 and inserting in place thereof the words:-

                              persons with a disability 

              And further, by striking out the words “disabled person” on line 31 and inserting in place thereof the words:-

                             persons with a disability

              Said Section 1 is further amended by striking out the words “disabled person or persons” on lines 37 and 39 and inserting in place thereof the words:-

                                person(s) with a disability 

              Said Section 1 is further amended by striking out the words "including un-consented to sexual activity" on line 42 and inserting in place thereof the following: -

              . . . , including but not limited to, un-assented to sexual activity

              Said Section 1 is further amended by striking out the words “disabled persons” as so appearing  on line 44 and inserting in place thereof the words:-

                              persons with a disability

              SECTION 2. Section 2 of chapter 19C of the General Laws, as appearing in the 2008 Official Edition, is hereby amended as follows:-

              By striking out the words “disabled persons” in said section and inserting in place thereof the words:-

              persons with disabilities

              SECTION 3. Section 3 of chapter 19C of the General Laws, as appearing in the 2008 Official Edition, is hereby amended as follows:-

              By amending subsection (c) of said section by deleting the words “disabled persons” before the words “to be known as” on line 18 and inserting in place thereof the words:-

              persons with disabilities

              And by amending subsection (d) of said section by deleting the word “other” after the word “designate” on line 20.

              Said Section 3 is further amended by amending subsection (f) by striking out the words “disabled persons” as so appearing on lines 26-27 and inserting in place thereof the words:-

              persons with disabilities

              Said Section 3 is further amended by striking out subsection (h) of said Section 3 on lines 31-35 and inserting in place thereof the following:-

                               (h) to develop, in consultation with the secretary of the executive office of health and human services, standards for referral of  investigations to the agencies within the executive office of health and human services pursuant to Section 4.

              SECTION 4. Section 4 of chapter 19C of the General Laws as appearing in the 2008 Official Edition, is hereby amended as follows:-

              By amending the first sentence by striking the words "disabled person," and inserting in place thereof the words:-

              person with a disability

              And further by inserting before the words "the commission shall" the following:-

                             . . . and subject to the commission's authority to conduct its own investigation

              Said Section 4 is further amended by amending subsection (b) of said section by striking out the first sentence on lines 10-16 and inserting in place thereof the following:-

                   . . . refer immediately any such reports, which allege the occurrence of abuse to a person with a disability whose caretaker is an agency of the commonwealth, a facility licensed by an agency of the commonwealth or a private agency which provides services or treatment to persons with disabilities pursuant to a contract or agreement with an agency of the commonwealth, to an investigator of the commission or to the department within the executive office of health and human services which has      jurisdiction over the disability manifested by the person with a disability.

              Said Section 4 is further amended by amending subsection (c) of said section 4 by striking out the first paragraph on lines 25-33 and inserting in place thereof the following:-

                   (c) refer immediately any such reports, which allege the occurrence of abuse of a person with a disability whose caretaker is other than an agency of the commonwealth, a facility licensed by an agency of the commonwealth or a private agency which provides services or treatment to persons with disabilities pursuant to a contract or agreement with an agency of the commonwealth to the commission; the Department of Mental Health in those cases where the disabled person is suffering from a mental illness, the Department of Developmental Services where the person with a disability is a person with developmental disabilities, or to the Massachusetts Rehabilitation Commission where the  person with a disability is otherwise physically disabled. Upon such referral, the commission or said Department shall immediately designate an investigator who shall investigate such allegation of abuse as provided in Section 5.

              Said Section 4 is further amended by adding immediately after subsection (c) the following:-

                   (d) In every case in which an investigation is conducted pursuant to section 4(b) or section 4(c) of chapter 19C and the alleged victim is at risk of harm, the appropriate protective service agency as designated by the commission shall make reasonable efforts to alleviate the risk of further harm by providing protective services not later than the initiation of said investigation to insure the safety of the person with a disability. In conducting such investigation, the designated investigator may seek and      utilize the assistance of municipal and state police officer.  If during said investigation, access to the disabled person is denied to the designated investigator, an appropriate municipal or state police officer shall, upon request, accompany the designated investigator to gain access to the person with a disability.

              Said Section 4 is further amended by striking out the last paragraph of subsection (c) lines 34-66 and inserting in place thereof the following:-

                   (e) Upon receipt of a written determination and evaluation prepared and forwarded to the commission pursuant to the provisions of section 5 or upon receipt of a report of abuse of a person with a disability where the commission, in accordance with written standards established by the commission, determines that the report may contain allegations of criminal conduct,  including but not limited to (1) a person with a disability has been sexually abused or raped, or assaulted or battered as set forth in chapter 265; (2) a person with a disability has suffered brain injury, loss or substantial impairment of a bodily function or organ, or substantial disfigurement; or (3) a person with a disability has suffered a serious bodily injury as a result of a pattern of repetitive actions or inactions by a caretaker; the commission, notwithstanding any provision of chapter 66A regarding personal data to the contrary, shall immediately refer such report to the special investigative unit, established pursuant to section 3(i) of chapter 19C, which shall conduct an initial evaluation and investigation of the alleged criminal conduct. Upon completion of such evaluation and investigation, said special investigative unit shall report the results of such evaluation and investigation to the Commissioners who, notwithstanding any provision of chapter 66A regarding personal data to the contrary, shall, if the special investigative unit has determined that there is reason to believe that a criminal offense has been committed, immediately refer such report, together with any relevant information obtained in such initial investigation, to the Attorney General or District Attorney for the county wherein the alleged criminal offense occurred. Upon receipt of such report, the Attorney General or District Attorney for the county wherein the alleged criminal offense occurred shall contact the commission in order to coordinate the investigation of the matters giving rise to the report. As part of such coordination, the Attorney General or the District Attorney may request that the commission delay or defer the investigation of the non-criminal matters giving rise to the report; provided, however, that such request shall be granted only where the commission determines that the health and the safety of the alleged victim of abuse shall not be adversely affected thereby and that the commission's or department's ability to conduct a later investigation shall not be unreasonably impaired by such delay or deferral. In all cases including, but not limited to, those in which the commission agrees to delay or defer the non-criminal investigation, the       Attorney General or District Attorney shall keep the commission informed of the status of the criminal investigation and the commission shall provide to the Attorney General or the District Attorney any and all information that may be relevant to the criminal investigation. In cases in which the commission agrees to delay or defer the non-criminal investigation, it shall monitor the progress of the criminal investigation and shall determine, after consultation with the appropriate law enforcement agencies, when or whether the non-criminal investigation should be initiated or resumed. No person providing notification or information to the commission, the commission’s special investigative unit, the district attorney, or attorney general or providing testimony in court in furtherance of the provisions of this section shall be liable in any civil or criminal action by reason of such action.

              SECTION 5. Section 5 of chapter 19C of the General Laws as appearing in the 2008 Official Edition, is hereby amended as follows:-

              The first sentence as so appearing on lines 1-4 shall be amended by deleting the words “disabled person” and inserting in place thereof the words:-

                   person with a disability

              And further, by deleting the words "the general counsel," and "executive office of human services" and inserting in place thereof the words:-

             

                   “Executive Office of Health and Human Services"

              Subsection (1) of said Section 5 is hereby amended by striking out on lines 7-8  the words "counsel or department of mental health or the department of public health" and inserting in place thereof the words: -

                     the Department of Mental Health, the Department of Developmental Services or the Massachusetts Rehabilitation Commission

              Subsection(1) of said Section 5 is hereby further amended by striking out the words “disabled person’s” on line 11 and inserting place thereof the words:-

                    person with a disability

              And further by striking out the words “disabled person” on line 12 and inserting in place thereof the words:-

                    person with a disability

              Said subsection (1) of said Section 5 is hereby further amended by striking out on lines 16-18 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 words:-

                    and to the Department of Mental Health, the Department of Developmental Services or the Massachusetts Rehabilitation Commission, as appropriate

              Subsection (3) of said Section 5 is hereby amended by striking out the words "the general counsel, the department of mental health and the department of public health" on lines 42-43 and inserting in place thereof the words:-

                    and the Department of Mental Health, the Department of Developmental Services or the Massachusetts Rehabilitation Commission, as appropriate

              Subsection (4) of said Section 5 is hereby amended by striking out the words “a disabled person”  on line 46 and inserting in place thereof the words:-

                    a person with a disability

              Subsection (5) of said Section 5 is hereby amended by deleting the second and third paragraphs  on lines 59-77.

              SECTION 6. Section 6 of Chapter 19C of the General Laws as appearing in the 2008 Official Edition, is hereby amended by striking out the first paragraph on lines 1-9 and inserting in place thereof the following:-

                    Acting through state agencies within the executive office of health and human services designated by the commission for the purpose of providing protective services as necessary to prevent further abuse in cases investigated pursuant to this chapter and subject to the oversight of the commission, the commission shall:

              Section 6 of Chapter 19C, subsection (1) and subsection (3) are hereby amended by striking out the words “a disabled person” and inserting in place thereof the words:-

                    a person with a disability

              SECTION 7. Section 7 of Chapter 19C of the General Laws as appearing in the 2008 Official Edition, is hereby amended as follows:-

              Subsection (a) of said Section 7 is hereby amended by striking out the words "the general counsel, department of mental health or the department of public health" on lines 1-2, and inserting in place thereof the words:-

                    the Department of Mental Health, the Department Developmental Services or the Massachusetts Rehabilitation Commission

              Subsection (a) of Section 7 is further amended by striking out the words “disabled person” on lines 3, 6, 11, 12, 15, 17, 19, 21,and 27 and inserting in place thereof the words:-

              person with a disability

              Subsection (a) of said Section 7 is hereby further amended by deleting the word "counsel" on lines 5 and 8.

              Subsection (b) of said Section 7 is hereby amended by deleting the words "counsel or" line 31 and on line 35.

              Subsection (b) of said Section 7 is hereby further amended by striking out the phrase ". . .the court may order the provision of protective services on an emergency basis. . ." on lines 46-47  and inserting in its stead the following words:-

                    and no other person who is authorized to consent is available or willing to consent, the court may order protective services on an emergency basis and the court in ordering the provision of protective services on an emergency basis may appoint a conservator, guardian or other person authorized to consent to the provision of protective services; provided however, that the court shall establish the least restrictive fiduciary representation that will satisfy addressing the emergency and needs of such person with a disability.

              Subsection (b) of said Section 7 is hereby further amended by striking out the words “Said order may be extended for an additional seventy-two hour period if the court finds that such extension is necessary to remove the emergency” on lines 51-53 and inserting in its stead the following:-

                   Said order may be extended for an additional period of time if the court finds that such extension is necessary to remove the emergency or to address the needs of such person with a disability

              Subsection (c) of said Section 7 is hereby amended by striking out the words “disabled person” on lines 56-57 and inserting in place thereof the words:-

              person with a disability

              Subsection (c) of said Section 7 is hereby amended by deleting on line 58 the word "counsel."

              Subsection (d) of said Section 7 is hereby amended by striking gout the words “disabled person” ion lines 62, 64 and 65 and inserting in place thereof the words:-

              person with a disability

              SECTION 8. Section 8 of chapter 19C of the General Laws as appearing in the 2008 Official Edition, is hereby amended by striking out the words "disabled person” on line 2 and inserting in place thereof the following:-

              person with a disability

              And further by striking out the words “disabled persons” on line 5 and inserting in place thereof the following:-

              persons with disabilities.

              Section 8 is further amended by striking out the words “...whose caretaker is a state agency" on lines 2 and 5-6, and inserting in place thereof the words:-

                   . . . whose caretaker is an agency of the commonwealth, a facility licensed by an agency of the commonwealth or a private agency which provides services or treatment to persons with disabilities pursuant to a contract or agreement with an agency of the commonwealth

              SECTION 9. Section 9 of chapter 19C, as appearing in the 2008 Official Edition, is hereby amended by striking out lines 1-2 and inserting in place thereof the words:-

                    Upon completion of any investigation conducted pursuant to this chapter, including but not limited to a formal investigation conducted pursuant to section 8, and notwithstanding any provision of chapter 66A regarding personal data to the contrary, the commission shall:

              Section 9 of said chapter 19C is hereby further amended by adding the following subsection after subsection (d):-

                     (e) refer any matters for which there is reason to believe that professional misconduct has occurred to the agency of the commonwealth having jurisdiction over such professional conduct for possible imposition of disciplinary measures in accordance with the requirements of any applicable law or regulation.

              SECTION 10. Section 10 of chapter 19C, as appearing in the 2008 Official Edition, is hereby amended by striking out the words “disabled person” on lines 6-7 and 12 and inserting in place thereof the following:-

              person with a disability

              SECTION 11. Section 11 of chapter 19C as appearing in the 2008 Official Edition, is hereby amended by striking out the words “general counsel” as appearing on lines 5-6.

              Section 11 of Chapter 19C is further amended by striking out the words “disabled person” on line 9 and inserting in place thereof the following:-

              person with a disability

              SECTION 12. Section 13 of chapter 19C as appearing in the 2008 Official Edition is hereby amended by striking out the words “disabled person” from the title and inserting in place thereof the words:-

              a person with a disability

              Section 13 is further hereby amended by striking out on lines 1-3 the following words “any disabled person whose caretaker was a state agency or an agency of any subdivision of the commonwealth or a private agency contracting with the commonwealth” and inserting in place thereof the following:-

              any person with a disability whose caretaker is an agency of the commonwealth, a subdivision of the commonwealth, a facility licensed by an agency of the commonwealth or a private agency which provides services or treatment to a person with disabilities pursuant to a contract or agreement with an agency or the commonwealth

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