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The 193rd General Court of the Commonwealth of Massachusetts

Section 17A: Residential care and services; housing facility providers; eviction; hearing; jurisdiction

Section 17A. (a) Section 18 of chapter 184, section 17 of this chapter and chapter 239 shall apply to a lawful housing occupant who is a client in a program of residential care and services licensed, funded or operated by the department of mental health and who: (1) pays the program for such residential care and services; (2) receives care and services from the program in a housing unit equipped with a kitchen and bathroom; and (3) occupies the unit either alone or with the occupant's family, as defined in the regulations of the department.

(b) Said section 18 of said chapter 184 and said section 17 of this chapter and said chapter 239 shall not apply to an occupant in a program of residential care and services which does not satisfy the conditions established in subsection (a) if, before eviction, the occupant received the procedural protections contained in subsection (c).

(c) (1) A provider of a program of residential care and services which does not satisfy the conditions established in subsection (a) shall post in each residence of the program a clearly visible notice which explains in plain and simple language the rights of occupants under this subsection.

(2) Any such provider who seeks the eviction of an occupant shall provide to the occupant and to the department written notice of the grounds of the proposed eviction, including reasons, relevant facts and the sources of those facts. The notice shall contain a reference to this section and shall advise the occupant that he has the right to a hearing, to be represented at such hearing by a lawyer or other person of his own choosing. At the request of the occupant, the provider shall afford the occupant, or his representative, reasonable access to review and copy his file before the hearing, including any document intended to be used against him at the hearing.

(3) Upon receipt of notice from the provider, the department shall immediately assign an impartial hearing officer to conduct a hearing on the propriety of the proposed eviction. The hearing officer shall select a hearing location convenient to the provider and occupant and shall conduct the hearing not less than 4 business days and not later than 14 business days after receipt of the proposed eviction notice, unless the provider and occupant jointly request an alternate date. The provider and the occupant may be represented by an attorney or other person and shall be afforded the opportunity to present evidence, to examine adverse evidence and to examine and cross examine witnesses.

(4) The provider shall have the burden of proving, by a preponderance of evidence, the propriety of the proposed eviction, but all such evidence shall be within the scope of the reasons for eviction set forth in the notice required by paragraph (2). An eviction under this section shall be deemed proper if the occupant has substantially violated an essential provision of a written agreement containing the conditions of occupancy or if the occupant is likely, in spite of reasonable accommodation, to impair the emotional or physical well being of other occupants, program staff or neighbors.

(5) Within 10 days after the conclusion of the hearing, the hearing officer shall prepare a written decision containing findings of fact and conclusions of law based on the evidence received at the hearing and shall submit copies of the decision, together with a notice of appeal rights, to the occupant and provider. The decision may be appealed to the superior court pursuant to section 14 of chapter 30A.

(6) Before the receipt of a written decision involving a client in a program funded or operated by the department, the provider may request that the department provide additional staffing or other assistance to protect the emotional or physical well being of other occupants, program staff or neighbors. Upon receipt of such request, the department shall provide timely assistance as it deems reasonable and appropriate.

(7) Upon receipt of a hearing officer's decision confirming the propriety of a proposed eviction of a client of the department who would otherwise become homeless, the department shall take steps to assist the client to secure alternative housing in the least restrictive setting that is appropriate and available.

(d) Nothing in this section shall: (1) restrict a provider from initiating an eviction proceeding under chapter 239 if the department fails to conduct a timely hearing pursuant to paragraph (3) of subsection (c); (2) apply to any facility for the care and treatment of mentally ill or mentally retarded persons or to restrict the temporary removal of an occupant under section 12 of chapter 123; (3) apply to a continuing care facility as defined in paragraph (u) of section 1 of chapter 40D or a facility as provided in section 71 of chapter 111; (4) diminish the rights of a lawful occupant of an assisted living facility; or (5) diminish or alter any other occupant rights or privileges not specifically set forth in this section.

(e) The superior court, housing court and district court departments shall have jurisdiction to enforce this section and the department may be made a party to an action brought pursuant to this section.