Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H142 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	HOUSE DOCKET, NO. 2111 FILED ON: 1/19/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 142
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Josh S. Cutler
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to community living for older adults and people with disabilities.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Josh S. Cutler6th Plymouth1/19/2023Brian W. Murray10th Worcester1/25/2023Carol A. Doherty3rd Bristol2/2/2023Vanna Howard17th Middlesex2/27/2023 1 of 57
16	16	HOUSE DOCKET, NO. 2111 FILED ON: 1/19/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 142
18	18	By Representative Cutler of Pembroke, a petition (accompanied by bill, House, No. 142) of Josh
19	19	S. Cutler and others relative to community living for older adults and people with disabilities.
20	20	Children, Families and Persons with Disabilities.
21	21	The Commonwealth of Massachusetts
22	22	_______________
23	23	In the One Hundred and Ninety-Third General Court
24	24	(2023-2024)
25	25	_______________
26	26	An Act relative to community living for older adults and people with disabilities.
27	27	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
28	28	of the same, as follows:
29	29	1 SECTION 1. Chapter 30A of the General Laws, as appearing in the 2018 Official
30	30	2Edition, is hereby amended by striking out paragraph (d) of section 20.
31	31	3 SECTION 2. Chapter 30A of the General Laws, as appearing in the 2018 Official
32	32	4Edition, is hereby amended by inserting after section 20 the following section:-
33	33	5 Section 20A. (a) A public body may allow remote participation by any member for any
34	34	6meeting of the public body. For the purposes of this section, the term remote participation means
35	35	7participation by a member of a public body during a meeting of that public body where the
36	36	8member is not physically present at the meeting location.
37	37	9 (b) Members remotely participating in a meeting may vote, shall be considered present
38	38	10and in attendance for all purposes, including for purposes of determining a quorum and for the
39	39	11purposes of section 23D of chapter 39. 2 of 57
40	40	12 (c) All members of the public body participating either remotely or at a meeting location
41	41	13shall be clearly audible to one another.
42	42	14 (d) For any meeting conducted through remote participation, the public body shall make
43	43	15provisions to ensure public access to the deliberations of the public body for interested members
44	44	16of the public through adequate, alternative means. Adequate, alternative means of public access
45	45	17shall mean measures that provide transparency and permit timely and effective public access to
46	46	18the virtual meeting. Such means may include, without limitation, providing public access
47	47	19through telephone, Internet or satellite enabled audio or video conferencing or any other
48	48	20technology that enables the public to clearly follow the proceedings of the virtual meeting while
49	49	21those proceedings are occurring. Documents used for any such meeting should be made available
50	50	22to the public before or at the time of the meeting of the public body. Where allowance for active,
51	51	23real-time participation by members of the public is a specific requirement of a general or special
52	52	24law or regulation, or a charter, local ordinance or by-law, pursuant to which the proceeding is
53	53	25conducted, any alternative means of public access shall provide for such participation. A public
54	54	26body shall offer its selected alternative means of public access to virtual meetings without
55	55	27subscription, toll, or similar charge to the public.
56	56	28 (e) A public body that elects to conduct its proceedings remotely shall ensure that any
57	57	29party entitled or required to appear before it may do so through remote means, as if the party
58	58	30were a member of the public body participating remotely.
59	59	31 (f) The executive body of a municipality shall develop and adopt standards and
60	60	32guidelines for remote participation of public bodies that is sufficient for the municipality prior to
61	61	33any remote meeting held pursuant to this law. 3 of 57
62	62	34 SECTION 2. The first paragraph of section 13A of chapter 22 of the General Laws, as
63	63	35appearing in the 2018 Official Edition, is hereby amended by striking out the second and third
64	64	36sentences and inserting in place thereof the following 3 sentences:-
65	65	37 “Two of the appointive members shall be architects licensed to practice in the
66	66	38commonwealth. One of the appointive members shall be a licensed building inspector. Three of
67	67	39the appointive members shall be selected after consultation with advocacy groups on behalf of
68	68	40persons with disabilities”
69	69	41 SECTION 3. The first paragraph of section 13A of chapter 22 of the General Laws, as so
70	70	42appearing, is hereby further amended by striking out the fourth paragraph, in lines 38 through 63,
71	71	43and inserting in place thereof the following four paragraphs:-
72	72	44 The board shall make and from time to time alter, amend, and repeal, in accordance with
73	73	45the provisions of chapter thirty A, rules and regulations designed to make multiple dwellings,
74	74	46and public buildings and facilities, including but not limited to areas that are not generally in
75	75	47public use, accessible to, functional for and safe for use by persons with disabilities. The board
76	76	48shall also make rules and regulations requiring that any person who has lawful control of
77	77	49improved or enclosed private property used as off-street parking areas where the public has a
78	78	50right of access as invitees or licensees, shall reserve parking spaces in said off-street parking
79	79	51areas for vehicles authorized to display handicapped plates or placards under section 2 of chapter
80	80	5290; provided, that the parking requirements shall be consistent with the Americans with
81	81	53Disabilities Act Standards for Accessible Design. The parking spaces reserved for vehicles of
82	82	54such handicapped persons shall be clearly marked as such. 4 of 57
83	83	55 The rules and regulations of the board shall also establish standards and procedures
84	84	56designed to make adaptable for persons with physical disabilities for any building, regardless of
85	85	57the date of construction, (1) all dwelling units in multiple dwellings equipped with an elevator;
86	86	58(2) all ground floor dwelling units in multiple dwellings not equipped with an elevator; and (3)
87	87	59all public use and common use portions of such multiple dwellings, providing however, that in
88	88	60any building constructed before March thirteenth, nineteen hundred and ninety one, such
89	89	61standards and procedures for dwelling units shall apply only to such units within (1) any non-
90	90	62residential building undergoing a gut rehabilitation as part of a change in use into a multiple
91	91	63dwelling facility, or (2) any residential building which is vacant undergoing a gut rehabilitation.
92	92	64 The rules and regulations of the board shall establish standards and procedures designed
93	93	65to make accessible to, functional for and safe for use by persons with physical disabilities
94	94	66residential buildings whenever constructed and without the restrictions in the above paragraph.
95	95	67Unless otherwise specified, five percent of the units in lodging or residential facilities for hire,
96	96	68rent or lease, containing twenty or more units, shall meet this requirement; provided, however,
97	97	69that accessible units shall allow five feet of turning radius for a wheelchair in the kitchens and
98	98	70bathrooms. In the event that the board determines that the need, in certain areas of the
99	99	71commonwealth, for such units either exceeds or does not require said five percent, the board may
100	100	72require that, in said areas a percentage of units less than five percent or not greater than ten
101	101	73percent be accessible and safe for persons with disabilities; provided, however, that said
102	102	74accessible units shall allow five feet of turning radius for a wheelchair in the kitchens and
103	103	75bathrooms. The board may make such determination only if there is sufficient factual basis,
104	104	76using data from the central registry of the Massachusetts Rehabilitation Commission and other
105	105	77sources, to establish with a reasonable degree of certainty the present and future needs for said 5 of 57
106	106	78accessible units in certain areas of the commonwealth. A percentage of less than five percent
107	107	79shall not be established unless such accessible units, which are not needed by persons with
108	108	80disabilities cannot be readily hired, rented, or leased to other persons.
109	109	81 The rules and regulations of the board shall include, but not be limited to, detailed
110	110	82architectural standards further defining adaptable and accessible dwelling units, and such other
111	111	83provisions necessary to provide rights and remedies substantially equivalent to or greater than
112	112	84the rights and remedies provided by the Federal Fair Housing Act, the Department of Justice’s
113	113	85Americans with Disabilities Act Standards for Accessible Design and regulations thereunder as
114	114	86they pertain to such multiple dwellings.
115	115	87 SECTION 4. Said section 13A of said chapter 22, as so appearing, is hereby further
116	116	88amended by striking out, in lines 11 and 12, the words “in behalf of the physically handicapped”
117	117	89and inserting in place thereof the following words:-
118	118	90 “on behalf of persons with disabilities”.
119	119	91 SECTION 5. Said section 13A of said chapter 22, as so appearing, is hereby further
120	120	92amended by inserting after the word “buildings”, in line 67, the following words:-
121	121	93 “and facilities”.
122	122	94 SECTION 6. Said section 13A of said chapter 22, as so appearing, is hereby further
123	123	95amended by inserting after the word “buildings”, in line 75, the following words:-
124	124	96 “and facilities”. 6 of 57
125	125	97 SECTION 7. Said section 13A of said chapter 22, as so appearing, is hereby further
126	126	98amended by striking out, in lines 80 and 81, the words “handicapped persons,” and inserting in
127	127	99place thereof the following words:-
128	128	100 “persons with a disability”.
129	129	101 SECTION 8. Said section 13A of said chapter 22, as so appearing, is hereby further
130	130	102amended by striking out, in lines 88 and 89 the word “newspaper” and inserting in place thereof
131	131	103the following words:-
132	132	104 “forms of”.
133	133	105 SECTION 9. Said section 13A of said chapter 22, as so appearing, is hereby further
134	134	106amended by inserting after the word “building”, in line 93, the following words:-
135	135	107 “or facility, including Areas not generally in Public Use”
136	136	108 SECTION 10. Said section 13A of said chapter 22, as so appearing, is hereby further
137	137	109amended by inserting after the word “building”, in line 94, the following words:-
138	138	110 “or facility”.
139	139	111 SECTION 11. Said section 13A of said chapter 22, as so appearing, is hereby further
140	140	112amended by inserting after the word “changed to a”, in line 94, the following words:-
141	141	113 “residential use or a”.
142	142	114 SECTION 12. Said section 13A of said chapter 22, as so appearing, is hereby further
143	143	115amended by inserting, in line 94, after the words “which the building” the following words:- 7 of 57
144	144	116 “or facility.”
145	145	117 SECTION 13. Said section 13A of said chapter 22, as so appearing, is hereby further
146	146	118amended by inserting after the word “building”, in line 96, the following words:-
147	147	119 “or facility”.
148	148	120 SECTION 14. Said section 13A of said chapter 22, as so appearing, is hereby further
149	149	121amended by striking out, in lines 102 and 103, the words “physically handicapped persons” and
150	150	122inserting in place thereof the following words:-
151	151	123 “persons with a disability”.
152	152	124 SECTION 15. Said section 13A of said chapter 22, as so appearing, is hereby further
153	153	125amended by striking out the eighth paragraph, consisting of lines 107 through 127.
154	154	126 SECTION 16. Said section 13A of said chapter 22, as so appearing, is hereby further
155	155	127amended by striking out, in lines 131 and 132, the word “person” and inserting in place thereof
156	156	128the following words:-
157	157	129 “building, or portion thereof,”.
158	158	130 SECTION 17. Said section 13A of said chapter 22, as so appearing, is hereby further
159	159	131amended by inserting after the words “for a building”, in line 150, the following words:-
160	160	132 “or facility”.
161	161	133 SECTION 18. Said section 13A of said chapter 22, as so appearing, is hereby further
162	162	134amended by inserting after the word “building”, in line 166, the following word:- 8 of 57
163	163	135 “, facility”.
164	164	136 SECTION 19. Said section 13A of said chapter 32, as so appearing, is hereby further
165	165	137amended by striking out, in lines 177, 179 and 187 the words “physically handicapped persons”
166	166	138and inserting in place thereof, in each instance, the following words:-
167	167	139 “persons with a disability”.
168	168	140 SECTION 20. Said section 13A of said chapter 22, as so appearing, is hereby further
169	169	141amended by inserting after the definition of “Alteration”, the following definition:-
170	170	142 “Areas that are not generally in public use,” areas not intended for use by the public, as
171	171	143designated in the 1991 and 2010 Americans with Disabilities Act (ADA) Standards for
172	172	144Accessible Design, and employee work areas.
173	173	145 SECTION 21. Said section 13A of said chapter 22, as so appearing, is hereby further
174	174	146amended by inserting after the definition of “Construction” the following definitions:-
175	175	147 “Employee work area” all or any portion of a space used only by employees and used
176	176	148only for work. Corridors, toilet rooms, kitchenettes and break rooms are considered “employee
177	177	149work areas” and shall be made accessible in new construction, or where renovation work being
178	178	150performed is otherwise subject to the jurisdiction of the Board. Corridors, toilet rooms,
179	179	151kitchenettes and break rooms are not otherwise considered “employee work areas;” provided
180	180	152however, that where corridors, toilet rooms, kitchenettes and break rooms constitute the path of
181	181	153travel to or are essential to the use of employees for work, they shall be, when possible,
182	182	154adaptable. 9 of 57
183	183	155 “Facility”, all or any portion of a building, structure, site improvement, complex,
184	184	156equipment, road, walk, passageway, parking lot or other real or personal property, including the
185	185	157site where the building, property, structure or equipment is located.”
186	186	158 “Gut rehabilitation,” the general replacement of the interior of a building that may or
187	187	159may not include changes to structural elements such as flooring systems, columns or load
188	188	160bearing interior or exterior walls.
189	189	161 SECTION 22. Said section 13A of said chapter 22, as so appearing, is hereby further
190	190	162amended by striking out the definition of “Public building” and inserting in place thereof the
191	191	163following definition:-
192	192	164 “Public building", buildings constructed by the commonwealth or any political
193	193	165subdivision thereof with public funds and open to public use, including, but not limited to, those
194	194	166constructed by public housing authorities, the Massachusetts Port Authority, the Massachusetts
195	195	167Parking Authority, the Massachusetts Department of Transportation, the Massachusetts Bay
196	196	168Transportation Authority, or building authorities of any public educational institution, or their
197	197	169successors; and privately financed buildings that are open to and used by the public, including
198	198	170but not limited to places of public accommodation listed in section 92A of chapter 272 of the
199	199	171General Laws, and 42 U.S.C. section 12181(7).
200	200	172 SECTION 23. Said section 13A of said chapter 22, as so appearing, is hereby further
201	201	173amended by striking out, in line 200, the words “Physically handicapped person” and inserting in
202	202	174place thereof the following words:-
203	203	175 “Person with a disability”. 10 of 57
204	204	176 SECTION 24. Said section 13A of said chapter 22, as so appearing, is hereby further
205	205	177amended by striking out, in line 204, the words “Physically handicapped persons” and inserting
206	206	178in place thereof the following words:-
207	207	179 “A person with a disability.”
208	208	180 SECTION 25. Not later than ninety days after the effective date of this act, the
209	209	181Architectural Access Board shall promulgate regulations as necessary pursuant to this act’s
210	210	182amendments of Chapter 22, section 13A.
211	211	183 SECTION 26. Notwithstanding section 5K of chapter 59 of the General Laws or any
212	212	184other general or special law to the contrary, a city or town that has accepted said section 5K may
213	213	185reduce the real property tax obligations of persons over the age of 60 who would have otherwise
214	214	186qualified for such reduction pursuant to said section 5K but for an inability to complete the
215	215	187volunteer requirements due to a lack of volunteer opportunities resulting from restrictions
216	216	188imposed in response to the 2019 novel coronavirus pandemic, also known as COVID-19;
217	217	189provided, that no reduction of said real property tax bill shall exceed $1,500 in a given tax year.
218	218	190 SECTION 27. This act shall expire upon the termination of the governor’s March 10,
219	219	1912020 declaration of a state of emergency to respond to COVID-19.
220	220	192 SECTION 28. Chapter 23B of the General Laws is hereby amended by adding the
221	221	193following 7 sections:-
222	222	194 Section 29. As used in section 31 to 37, inclusive, the following words shall have the
223	223	195following meanings, unless the context clearly requires otherwise:- 11 of 57
224	224	196 “Accessibility features”, accessibility features that meet the specifications of an existing
225	225	197standard including: (i) accessibility ramp to a zero-step entrance from a driveway or public
226	226	198sidewalk; (ii) zero-step entrance; (iii) doors with at least 32 inches of clear width; (iv) hallways
227	227	199and passages with at least 36 inches of clear width; (v) accessible light switches, electrical outlets
228	228	200and environmental controls; (vi) accessible bathroom; (vii) accessible and useable kitchen
229	229	201facilities; (viii) retrofitting of an existing unit to include permanently installed lifts or elevators;
230	230	202(ix) purchase and permanent installation of a backup electric generator for life sustaining
231	231	203electric-powered medical equipment for devices such as respirators, oxygen concentrators or
232	232	204dialysis machines; and (x) installation of a permanent home monitoring system for residents with
233	233	205Alzheimer’s disease and other forms of dementia.
234	234	206 “Commission”, the Massachusetts rehabilitation commission established pursuant to
235	235	207section 74 of chapter 6.
236	236	208 “Disability”, a physical or mental impairment that substantially limits one or more major
237	237	209life activities of an individual.
238	238	210 “Dwelling unit”, any house or building, or portion thereof, that is occupied, designed to
239	239	211be occupied, or is rented, leased or hired out to be occupied, as a home or residence of 1 or more
240	240	212persons.
241	241	213 “Eligible individual”, an individual who has a disability or the caregiver who owns or
242	242	214rents the residency in which the individual who has a disability will reside.
243	243	215 “Existing standards”, adaptability features prescribed by the Massachusetts state building
244	244	216code, the specifications of the American National Standards Institute, the Uniform Federal 12 of 57
245	245	217Accessibility Standards pursuant to 24 CFR Part 40 or Fair Housing Accessibility Guidelines
246	246	218pursuant to 24 CFR Part 100.
247	247	219 “Post-retrofit documentation”, evidence that the project has been completed including,
248	248	220but not limited to: (i) before and after pictures of the area that is retrofitted; (ii) copies of
249	249	221purchase contracts; (iii) invoices; (iv) cancelled checks; and (v) construction contracts.
250	250	222 “Sensory modification”, alarms, appliances and controls designed to assist sensory
251	251	223disabled individuals that are installed as a permanent part of the structure to the dwelling unit;
252	252	224provided, however that sensory modifications shall not include appliances or alarms that can be
253	253	225removed and reinstalled in another dwelling unit.
254	254	226 Section 30. (a) Any eligible individual, who intends to retrofit or contract with an
255	255	227individual or company to retrofit an existing dwelling unit; provided, that such retrofitting meets
256	256	228the qualification criteria as established in section 33, and meets the eligibility requirements
257	257	229established by guidelines developed by the department in consultation with the commission,
258	258	230shall be eligible for a livable home modification grant equal to not more than 50 per cent of the
259	259	231total amount spent; provided, that said livable home modification grant shall not exceed $5,000.
260	260	232 (b) An eligible individual who has a disability, a caregiver or a guardian may apply for a
261	261	233livable home modification pursuant to section 34.
262	262	234 Section 31. (a) To qualify for a livable home modification grant, the proposed
263	263	235modification or retrofitting of an existing dwelling unit must include at least 1 accessibility
264	264	236feature or sensory modification and meet the requirements of an existing standard. 13 of 57
265	265	237 (b) The eligible individual's income in the prior year shall not exceed 120 per cent of the
266	266	238area median income, as determined by the United States Department of Housing and Urban
267	267	239Development. The calculation of an eligible individual’s income shall only include the earnings
268	268	240of the individual with a disability and caregiver, if applicable; provided, that this calculation shall
269	269	241not include household income.
270	270	242 (c) If the eligible individual who has a disability was not required to file a federal tax
271	271	243return in the prior year, the resident shall be automatically eligible for a livable home
272	272	244modification grant; provided, however, that the eligible individual does not qualify or is not
273	273	245eligible for accessibility modifications funded through other local, state or federal programs.
274	274	246 Section 32. (a) Eligible individuals shall apply for a livable home modification grant by
275	275	247making application to the department, which shall issue a certification for an approved
276	276	248application to the individual who has a disability, caregiver or guardian.
277	277	249 (b) The department, in consultation with the commission, shall develop application
278	278	250guidelines that include, but shall not be limited to: (i) assessment of the individual who has the
279	279	251disability and the need for the livable home modifications; and (ii) proof of the eligible resident's
280	280	252income and documentation of any disability related exemptions.
281	281	253 (c) All applications shall be submitted and received by the department prior to the
282	282	254commencement of construction to modify or retrofit an existing residence to install accessibility
283	283	255features or sensory modifications.
284	284	256 Section 33. (a) Livable home modification grants shall only be allowed for the retrofitting
285	285	257or modification of a residential rental property, provided that the owner agrees to maintain the
286	286	258accessibility features or sensory modifications for 10 years. 14 of 57
287	287	259 (b) Individuals and other entities shall not be eligible to receive a livable home
288	288	260modification grant if they are:
289	289	261 (i) eligible for federal or state disabled access tax credits;
290	290	262 (ii) a limited liability company or foreign limited liability company, as defined by section
291	291	2632 of chapter 156C;
292	292	264 (iii) an S Corporation established pursuant to Subchapter S of Chapter 1 of the Internal
293	293	265Revenue Code, 26 USC §§ 1361 et seq.;
294	294	266 (iv) a cooperative housing corporation, as defined by section 4 of chapter 157B; or
295	295	267 (v) a corporation or foreign corporation, subject to chapter 156.
296	296	268 (c) Accessibility modifications that are eligible to be funded through local, state or
297	297	269federal programs shall not be eligible for livable home modification grants.
298	298	270 (d) Livable home modification grants shall not be used for the purchase or construction of
299	299	271residential rental property.
300	300	272 (e) The department shall not issue more than 1 livable home modification grant to an
301	301	273eligible individual or in relation to the modification or retrofitting of a dwelling unit.
302	302	274 Section 34. Applicants shall submit post-retrofit documentation to the department
303	303	275following the completion of the modification or retrofitting of the dwelling unit.
304	304	276 Section 35. The department shall, not later than August 31, submit an annual report to the
305	305	277governor, speaker of the house, senate president, and chairs of the joint committee on ways and
306	306	278means for preceding fiscal year. The annual report shall include, but shall not be limited to: 15 of 57
307	307	279 (i) number of grants issued to qualifying individuals;
308	308	280 (ii) number of applications that did not qualify;
309	309	281 (iii) total dollar amount of grants issued;
310	310	282 (iv) average dollar amount of the grants issued;
311	311	283 (v) number of retrofits by accessibility features; and
312	312	284 (vi) prognosis and estimated expenses for the individual if the retrofit had not been made,
313	313	285including: (1) increased likelihood of falls and other related emergency room, hospital or
314	314	286rehabilitation expenses; (2) loss of independence; and (3) move into a long-term care facility.
315	315	287 SECTION 36. The director of the department of housing and community development
316	316	288shall promulgate regulations necessary to implement and administer this act.
317	317	289 SECTION 37 Section 25 of Chapter 118E of the General Laws, as appearing in the 2010
318	318	290Official Edition, is hereby amended in subsection (5) by striking the second paragraph and
319	319	291inserting in place thereof the following paragraph:-
320	320	292 In any case where the monthly income of an applicant or recipient is in excess of the
321	321	293exemptions allowed, the applicant or recipient, if otherwise eligible for Medicaid under this
322	322	294chapter, shall be liable to pay to the provider of medical care or service an amount which shall be
323	323	295equal to the excess income for a period of six consecutive months, which includes the period
324	324	296when such service was provided; provided, however that in such cases where the individual’s
325	325	297gross income is greater than 300% of the federal Supplemental Security Income level but less
326	326	298than the average monthly cost of nursing home care as calculated by the division and the
327	327	299individual is participating in a Home and Community Based Waiver, under 42 USC 16 of 57
328	328	3001396a(10)(a)(ii)(VI) or a PACE Program, under 42 USC 1396u-4 or 42 USC 1395eee, the
329	329	301division shall charge a premium, equal to the difference between the individual’s gross income
330	330	302and 300% of the federal Supplemental Security Income level, on a monthly basis. The division
331	331	303shall apply for any federal waivers necessary to implement this provision.
332	332	304 SECTION 38. The first paragraph of section 13A of chapter 22 of the General Laws, as
333	333	305appearing in the 2018 Official Edition, is hereby amended by striking out the second and third
334	334	306sentences and inserting in place thereof the following 3 sentences:-
335	335	307 "Two of the appointive members shall be architects licensed to practice in the
336	336	308Commonwealth. One of the appointive members shall be a licensed building inspector. Three of
337	337	309the appointive members shall be selected after consultation with advocacy groups on behalf of
338	338	310persons with disabilities."
339	339	311 SECTION 39. The first paragraph of section 13A of chapter 22 of the General Laws, as
340	340	312appearing in the 2018 Official Edition, is hereby further amended by striking out the fourth
341	341	313paragraph, consisting of lines 38 through 51, and inserting in place thereof the following
342	342	314paragraph:
343	343	315 The board shall make and from time to time alter, amend, and repeal, in accordance with
344	344	316the provisions of chapter thirty A, rules and regulations designed to make public buildings and
345	345	317facilities, including but not limited to areas that are not generally in public use, accessible to,
346	346	318functional for and safe for use by persons with disabilities. The board shall also make rules and
347	347	319regulations requiring that any person who has lawful control of improved or enclosed private
348	348	320property used as off-street parking areas where the public has a right of access as invitees or
349	349	321licensees, shall reserve parking spaces in said off-street parking areas for vehicles authorized to 17 of 57
350	350	322display handicapped plates or placards under section 2 of chapter 90; provided, that the parking
351	351	323requirements shall be consistent with the Americans with Disabilities Act Standards for
352	352	324Accessible Design. The parking spaces reserved for vehicles of such handicapped persons shall
353	353	325be clearly marked as such.
354	354	326 SECTION 40. Said section 13A of said chapter 22, as so appearing, is hereby further
355	355	327amended by striking out, in lines 11 and 12, the words “in behalf of the physically handicapped”
356	356	328and inserting in place thereof the following words:-
357	357	329 "on behalf of persons with disabilities".
358	358	330 SECTION 41. Said section 13A of said chapter 22, as so appearing, is hereby further
359	359	331amended by inserting after the word “buildings”, in line 67, the following words:-
360	360	332 "and facilities".
361	361	333 SECTION 42. Said section 13A of said chapter 22, as so appearing, is hereby further
362	362	334amended by inserting after the word “buildings”, in line 75, the following words:-
363	363	335 "and facilities".
364	364	336 SECTION436. Said section 13A of said chapter 22, as so appearing, is hereby further
365	365	337amended by striking out, in lines 80 and 81, the words “handicapped persons,” and inserting in
366	366	338place thereof the following words:-
367	367	339 "persons with a disability. 18 of 57
368	368	340 SECTION 44. Said section 13A of said chapter 22, as so appearing, is hereby further
369	369	341amended by striking out, in lines 88 and 89 the word “newspaper” and inserting in place thereof
370	370	342the following words:-
371	371	343 "forms of".
372	372	344 SECTION 45. Said section 13A of said chapter 22, as so appearing, is hereby further
373	373	345amended by inserting after the word “building”, in line 93, the following words:-
374	374	346 "or facility including Areas not generally in Public Use”
375	375	347 SECTION 46. Said section 13A of said chapter 22, as so appearing, is hereby further
376	376	348amended by inserting after the word “building”, in line 94, the following words:-
377	377	349 "or facility".
378	378	350 SECTION 47. Said section 13A of said chapter 22, as so appearing, is hereby further
379	379	351amended by inserting after the word “changed to a”, in line 94, the following words:-
380	380	352 "residential use or a".
381	381	353 SECTION 48. Said section 13A of said chapter 22, as so appearing, is hereby further
382	382	354amended by inserting, in line 94, after the words “which the building” the following words:-
383	383	355 "or facility."
384	384	356 SECTION 49. Said section 13A of said chapter 22, as so appearing, is hereby further
385	385	357amended by inserting after the word “building”, in line 96, the following words:-
386	386	358 "or facility". 19 of 57
387	387	359 SECTION 50. Said section 13A of said chapter 22, as so appearing, is hereby further
388	388	360amended by striking out, in lines 102 and 103, the words “physically handicapped persons” and
389	389	361inserting in place thereof the following words:-
390	390	362 "persons with a disability".
391	391	363 SECTION 51. Said section 13A of said chapter 22, as so appearing, is hereby further
392	392	364amended by striking out the eighth paragraph, consisting of lines 107 through 127.
393	393	365 SECTION 52. Said section 13A of said chapter 22, as so appearing, is hereby further
394	394	366amended by striking out, in lines 131 and 132, the word “person” and inserting in place thereof
395	395	367the following words:-
396	396	368 "building, or portion thereof,".
397	397	369 SECTION 53. Said section 13A of said chapter 22, as so appearing, is hereby further
398	398	370amended by inserting after the words “for a building”, in line 150, the following words:-
399	399	371 "or facility".
400	400	372 SECTION 54. Said section 13A of said chapter 22, as so appearing, is hereby further
401	401	373amended by inserting after the word “building”, in line 166, the following word:-
402	402	374 ", facility".
403	403	375 SECTION 55. Said section 13A of said chapter 32, as so appearing, is hereby further
404	404	376amended by striking out, in lines 177, 179 and 187 the words “physically handicapped persons”
405	405	377and inserting in place thereof, in each instance, the following words:-
406	406	378 "persons with a disability". 20 of 57
407	407	379 SECTION 56. Said section 13A of said chapter 22, as so appearing, is hereby further
408	408	380 amended by inserting after the definition of “Alteration”, the following definition:
409	409	381 “Areas that are not generally in public use,” areas not intended for use by the public, as
410	410	382designated in the 1991 and 2010 Americans with Disabilities Act (ADA) Standards for
411	411	383Accessible Design, and employee work areas.
412	412	384 SECTION 57. Said section 13A of said chapter 22, as so appearing, is hereby further
413	413	385amended by inserting after the definition of “Construction” the following definitions:-
414	414	386 “Employee work area”:-
415	415	387 "Employee work area," all or any portion of a space used only by employees and used
416	416	388only for work. Corridors, toilet rooms, kitchenettes and break rooms are considered “employee
417	417	389work areas” and shall be made accessible in new construction, or where renovation work being
418	418	390performed is otherwise subject to the jurisdiction of the Board. Corridors, toilet rooms,
419	419	391kitchenettes and break rooms are not otherwise considered “employee work areas;” provided
420	420	392however, that where corridors, toilet rooms, kitchenettes and break rooms constitute the path of
421	421	393travel to or are essential to the use of employees for work, they shall be, when possible,
422	422	394adaptable.
423	423	395 “Facility”, all or any portion of a building, structure, site improvement, complex,
424	424	396equipment, road, walk, passageway, parking lot or other real or personal property, including the
425	425	397site where the building, property, structure or equipment is located." 21 of 57
426	426	398 SECTION 58. Said section 13A of said chapter 22, as so appearing, is hereby further
427	427	399amended by striking out the definition of “Public building” and inserting in place thereof the
428	428	400following definition:-
429	429	401 “Public building'', buildings constructed by the commonwealth or any political
430	430	402subdivision thereof with public funds and open to public use, including, but not limited to, those
431	431	403constructed by public housing authorities, the Massachusetts Port Authority, the Massachusetts
432	432	404Parking Authority, the Massachusetts Department of Transportation, the Massachusetts Bay
433	433	405Transportation Authority, or building authorities of any public educational institution, or their
434	434	406successors; and privately financed buildings that are open to and used by the public, including
435	435	407but not limited to places of public accommodation listed in section 92A of chapter 272 of the
436	436	408General Laws, and 42 U.S.C. section 12181(7).
437	437	409 SECTION 59. Said section 13A of said chapter 22, as so appearing, is hereby further
438	438	410amended by striking out, in line 200, the words “Physically handicapped person” and inserting in
439	439	411place thereof the following words:-
440	440	412 "Person with a disability".
441	441	413 SECTION 60. Said section 13A of said chapter 22, as so appearing, is hereby further
442	442	414amended by striking out, in line 204, the words “Physically handicapped persons” and inserting
443	443	415in place thereof the following words:-
444	444	416 "A person with a disability."
445	445	417 SECTION 61. Chapter 118E of the General Laws is hereby amended by striking out
446	446	418section 31 and inserting in place thereof the following section:- 22 of 57
447	447	419 Section 31. (a) This subsection shall apply to estates of individuals dying prior to April 1,
448	448	4201995. There shall be no adjustment or recovery of medical assistance correctly paid except as
449	449	421follows:
450	450	422 (1) Recovery from the Permanently Institutionalized: From the estate of an individual,
451	451	423regardless of age, who was an inpatient in a nursing facility or other medical institution when the
452	452	424individual received such assistance. Recovery of the assistance shall be limited to assistance
453	453	425provided on or after March 22, 1991.
454	454	426 (2) Recovery from Persons Age 65 and Over: From the estate of an individual who was
455	455	42765 years of age or older when the individual received such assistance. Any recovery may be
456	456	428made only after the death of the surviving spouse, if any, and only at a time when the individual
457	457	429has no surviving child who is under age 21 or is blind or permanently and totally disabled. The
458	458	430division shall waive recovery where it would result in undue hardship, as defined by the division
459	459	431in its regulations.
460	460	432 (b) This subsection shall apply to estates of individuals dying on or after April 1, 1995 in
461	461	433which a petition for admission to probate of a decedent's will or for administration of a
462	462	434decedent's estate is filed prior to [the effective date of the amendment]. There shall be no
463	463	435adjustments or recovery of medical assistance correctly paid except as follows:
464	464	436 (1) Recovery from the Permanently Institutionalized: From the estate of an individual,
465	465	437regardless of age, who was an inpatient in a nursing facility or other medical institution when the
466	466	438individual received such assistance. Recovery of the assistance shall be limited to assistance
467	467	439provided on or after March 22, 1991. 23 of 57
468	468	440 (2) Recovery from Persons Age 65 and Over: From the estate of an individual who was
469	469	44165 years of age or older when the individual received the assistance.
470	470	442 (3) Recovery from Persons Age 55 and Over for Post–October 1, 1993 Medicaid: From
471	471	443the estate of an individual who was 55 years of age or older when the individual received such
472	472	444assistance, where the assistance was for services provided on or after October 1, 1993.
473	473	445 Any recovery under this subsection may be made only after the death of the surviving
474	474	446spouse, if any, and only at a time when the individual has no surviving child who is under age 21
475	475	447or is blind or permanently and totally disabled. The division shall waive recovery if recovery
476	476	448would work an undue hardship, as defined by the division in its regulations.
477	477	449 (c) This subsection shall apply to estates of individuals dying on or after April 1, 1995 in
478	478	450which a petition for admission to probate of a decedent's will or for administration of a
479	479	451decedent's estate is filed on or after [effective date of amendment]. There shall be no adjustments
480	480	452or recovery of medical assistance correctly paid except as follows:
481	481	453 (1) Recovery from the Permanently Institutionalized: From the estate of an individual,
482	482	454regardless of age, who was an inpatient in a nursing facility or other medical institution within
483	483	455the meaning of 42 USC 1396p(a)(1)(B)(i) when he or she received such assistance. Recovery of
484	484	456such assistance shall be limited to assistance provided on or after March 22, 1991.
485	485	457 (2) Recovery from Persons Age 55 and Over for Post–October 1, 1993 Medicaid: From
486	486	458the estate of an individual who was 55 years of age or older when the individual received such
487	487	459assistance, where such assistance was for services provided on or after October 1, 1993, but only
488	488	460for medical assistance consisting of nursing facility services, home and community-based 24 of 57
489	489	461services, and related hospital and prescription drug services for which estate recovery is
490	490	462mandated by 42 USC 1396p(b)(1)(B)(i) or other federal law.
491	491	463 Any recovery under this subsection may be made only after the death of the surviving
492	492	464spouse, if any, and only at a time when the individual has no surviving child who is under age 21
493	493	465or is blind or disabled. The division shall not recover for capitated payments made to managed
494	494	466care entities that exceed the actual cost of medical services received by the decedent.
495	495	467 The division shall waive recovery:
496	496	468 (i) if such recovery is not cost effective, including when the total gross assets of the
497	497	469estate, less any claims that have priority over MassHealth, or mortgages or liens on real property,
498	498	470in a probate estate are $25,000 or less; or
499	499	471 (ii) if such recovery would create an undue hardship. The division shall promulgate
500	500	472regulations defining undue hardship that shall include, but not be limited to, cases in which:
501	501	473 (A) a sale of real property would be required to satisfy a claim against the probate estate;
502	502	474and the property is occupied as the home of a surviving spouse, child under age 21, child of any
503	503	475age who is blind or disabled, surviving sibling with a legal interest in the property or a child to
504	504	476whom the decedent could have transferred the home during his or her lifetime with no transfer of
505	505	477asset penalty pursuant to 42 USC 1396p(c)(2)(A) or (B); or
506	506	478 (B) a sale of real property would be required to satisfy a claim against the probate estate,
507	507	479and the property is occupied as the home of an individual who has lived in it for at least 1 year
508	508	480prior to the death of the decedent provided that if at the time of death the decedent was a nursing
509	509	481facility resident, the individual must have lived in the home for at least 1 year prior to the 25 of 57
510	510	482decedent’s nursing facility admission, has inherited or received a legal or equitable interest in the
511	511	483property, is not being forced to sell by other devisees or heirs at law and whose income is 400
512	512	484per cent of the federal poverty level or less at the time of the decedent’s death; or
513	513	485 (C) a sale of real property would be required to satisfy a claim against the probate estate,
514	514	486at the time the notice of claim is filed the property is occupied as the home of an individual who
515	515	487has lived in it for at least 2 consecutive years prior to the decedent becoming institutionalized or
516	516	488before the decedent’s death, and during that time the individual provided a level of care that kept
517	517	489the decedent from needing to be admitted to a nursing home, and the individual has inherited or
518	518	490received a legal or equitable interest in the property, and is not being forced to sell by other
519	519	491devisees or heirs at law; or
520	520	492 (D) the gross income of a devisee or heir was 400 per cent of the federal poverty level or
521	521	493less during the 2 years prior to the date of presentment of the division’s claim, in which case, the
522	522	494division shall waive recovery in an amount equal to the value of the devisee’s or heir’s interest in
523	523	495the estate up to a maximum of $50,000 per qualifying individual; provided, if there are multiple
524	524	496individuals who qualify for this waiver, the maximum amount waived is $100,000 per estate; or
525	525	497 (E) the sale of a homestead of modest value, as defined by the division consistent with
526	526	498federal guidelines, would be required to satisfy the claim; or
527	527	499 (F) other compelling circumstances in which recovery would create a financial hardship
528	528	500for one or more devisees or heirs at law whose income is 400 percent of the federal poverty level
529	529	501or less.
530	530	502 (d) For purposes of this section, ''estate'' shall mean all real and personal property and
531	531	503other assets includible in the decedent's probate estate under the General Laws, provided that it 26 of 57
532	532	504shall not include certain property of American Indians that the Secretary has exempted from
533	533	505Medicaid estate recovery pursuant to 42 USC 1396p(b)(3)(B) or Government reparation
534	534	506payments to special populations that are exempt from Medicaid estate recovery pursuant to
535	535	507federal law.
536	536	508 (e) There shall be no adjustments or recovery of medical assistance correctly paid from
537	537	509the estate of an individual who was receiving such assistance pursuant to the CommonHealth
538	538	510program for disabled adults.
539	539	511 (f) For purposes of this section, medical assistance shall not include medical assistance
540	540	512for medicare cost-sharing or for benefits described in 42 USC 1396a(a)(10)(E) that are exempt
541	541	513from Medicaid estate recovery.
542	542	514 (g) The division is also authorized during an individual's lifetime to recover all assistance
543	543	515correctly provided on or after April 1, 1995, if property against which the division has a lien or
544	544	516encumbrance under section 34 is sold. No lien or encumbrance shall be valid against any bona
545	545	517fide purchaser for value or take priority against any subsequent mortgagee for value unless and
546	546	518until it is recorded in the registry of deeds where the property lies.
547	547	519 Repayment shall not be required under this subsection while any of the following
548	548	520relatives lawfully resides in the property: (1) a sibling who had been residing in the property for
549	549	521at least 1 year immediately prior to the individual being admitted to a nursing facility or other
550	550	522medical institution; or (2) a child who (i) had been residing in the property for at least two years
551	551	523immediately prior to the parent being admitted to a nursing facility or other medical institution;
552	552	524(ii) establishes to the satisfaction of the division that the child provided care which permitted the
553	553	525parent to reside at home during that 2-year period rather than in an institution; and (iii) has 27 of 57
554	554	526lawfully resided in the property on a continuous basis while the parent has been in the medical
555	555	527institution.
556	556	528 If repayment is not yet required because a relative specified above is still lawfully
557	557	529residing in the property and the individual wishes to sell the property, the purchaser shall take
558	558	530possession subject to the lien or the division shall release the lien if the individual agrees to (1)
559	559	531either set aside sufficient assets to satisfy the lien or give bond to the division with sufficient
560	560	532sureties and (2) repay the division as soon as the specified relative is no longer lawfully residing
561	561	533in the property. Notwithstanding the foregoing or any general or special law to the contrary, the
562	562	534division and the parties to the sale may by agreement enter into an alternative resolution of the
563	563	535division's lien. This subsection shall not limit the division's ability to recover from the
564	564	536individual's estate under subsection (a), (b), or (c) or as otherwise provided under any general or
565	565	537special law. The division shall provide a release of any lien where repayment shall not be
566	566	538required within 60 days of receiving notice of the change in circumstances resulting in
567	567	539repayments no longer being required.
568	568	540 SECTION 62. Said chapter 118E is further amended by striking out section 32 and
569	569	541inserting in place thereof the following section:-
570	570	542 Section 32. (a) Notwithstanding any provision of law to the contrary, a petition for
571	571	543admission to probate of a decedent's will or for administration of a decedent's estate shall include
572	572	544a sworn statement that copies of said petition and death certificate have been sent to the division
573	573	545by certified mail in accordance with sections 3–306(f) and 3–403(f) of chapter 190B. Within 30
574	574	546days of a request by the division, a personal representative shall complete and send to the
575	575	547division by certified mail a form prescribed by the division and provide such further information 28 of 57
576	576	548as the division may require. In the event a petitioner fails to send copies of the petition and death
577	577	549certificate to the division and the decedent received medical assistance for which the division is
578	578	550authorized to recover under section 31, any person receiving a distribution of assets from the
579	579	551decedent's estate shall be liable to the division to the extent of such distribution.
580	580	552 (b) The division may present claims against a decedent's estate as follows: (1) within 4
581	581	553months after approval of the official bond of the personal representative, file a written statement
582	582	554of the amount claimed with the registry of probate where the petition was filed and deliver or
583	583	555mail a copy thereof to the personal representative. The claim shall be deemed presented upon the
584	584	556filing of the claim in the registry of probate; or (2) within 1 year after date of death of the
585	585	557decedent, commence an action under the provisions of section 9 of chapter 197.
586	586	558 (c) When presenting its claim by written statement under subsection (b), the division shall
587	587	559also notify the personal representative of
588	588	560 (1) the circumstances and conditions which must exist for the division to be required to
589	589	561defer recovery under section 31;
590	590	562 (2) the circumstances and conditions which must exist for the division to waive recovery
591	591	563under its regulations for undue hardship;
592	592	564 (3) how to obtain a detailed accounting of the claim;
593	593	565 (4) limitations on estate recovery related to the decedent having a long term care policy;
594	594	566 (5) the limitation described in subsections (d), (e) and (f) of section 31; and
595	595	567 (6) the personal representative’s obligation to mail a copy of the division’s written
596	596	568statement to all individuals who may be entitled to deferral or waiver of estate recovery pursuant 29 of 57
597	597	569to section 31 and of the personal representative’s obligation to give the division notice of
598	598	570circumstances and conditions for deferral or waiver that he or she has reason to believe exist.
599	599	571The division shall also supply a form that may be used to notify the division of circumstances
600	600	572and conditions that require deferral or waiver of recovery.
601	601	573 (d) If the division presents a claim against the decedent’s estate pursuant to subsection (b)
602	602	574the personal representative shall forthwith send a copy of the written statement by certified mail
603	603	575of the amount claimed to individuals who may be entitled to deferral or waiver of estate recovery
604	604	576pursuant to section 31 and the personal representative shall give the division notice of
605	605	577circumstances and conditions for deferral or waiver that he or she has reason to believe exist.
606	606	578The personal representative shall have 60 days from the date of presentment or 30 days from the
607	607	579date the agency responds to a request for a detailed accounting, whichever is later, to mail notice
608	608	580to the division by certified mail of one or more of the following findings: (1) the claim is
609	609	581disallowed in whole or in part, or (2) circumstances and conditions where the division is required
610	610	582to defer recovery under section 31 exist, or (3) circumstances and conditions where the division
611	611	583will waive recovery for undue hardship under its regulations exist. A notice under clause (2) or
612	612	584(3) shall state the specific circumstances and conditions which exist. The division shall notify the
613	613	585personal representative what supporting documentation it requires to determine if the
614	614	586circumstances in clause (2) or (3) exist and shall cooperate with the personal representative in
615	615	587supplying information in the possession of the agency. The division shall send a written notice to
616	616	588the personal representative stating whether or not it is satisfied that circumstances and conditions
617	617	589under clause (2) or (3) exist. If the division denies that said circumstances exist, its notice shall
618	618	590explain with specificity the reason for the denial and the opportunity for either an administrative
619	619	591hearing before the MassHealth Board of Hearings or a hearing in an action commenced by the 30 of 57
620	620	592division pursuant to subsection (f) if no administrative hearing is requested. Any party aggrieved
621	621	593by a decision of the MassHealth board of hearings may seek a de novo review in any action
622	622	594commenced by the division pursuant to subsection (f). Failure to mail a notice under clauses (1),
623	623	595(2), or (3) within the time allowed from presentment shall be deemed an allowance of the claim
624	624	596for purposes of subsection (g).
625	625	597 (e) If the division at any time within the period for presenting claims under subsection (b)
626	626	598amends the amount due, the personal representative shall have an additional 60 days to mail
627	627	599notice to the division under clause 1 of subsection (d).
628	628	600 (f) If the division receives a disallowance under clause (1) of subsection (d), the division
629	629	601may commence an action to enforce its claim in a court of competent jurisdiction within 60 days
630	630	602after receipt of said notice of disallowance. If the division receives a notice under clause (2) or
631	631	603(3) of said subsection (d), with which it disagrees, the division may commence an action in a
632	632	604court of competent jurisdiction within 60 days after receipt of said notice or within 30 days of a
633	633	605final decision of the MassHealth board of hearings with which it disagrees, whichever is later. If
634	634	606the division commences an action to enforce its claim, any and all costs and fees incurred by the
635	635	607Personal Representative in defense of such claim shall be recognized as costs and expenses
636	636	608incurred in the administration of the estate and such expenses shall be given priority pursuant to
637	637	609clause (1) of subsection (a) of section 3-805 of chapter 190B. If the division fails to commence
638	638	610an action after receiving a notice under clause (2) of said subsection (d), the division shall defer
639	639	611recovery while the circumstances or conditions specified in said notice continue to exist. If the
640	640	612division fails to commence an action after receiving a notice under clause (3) of subsection (d),
641	641	613the division shall waive recovery for undue hardship. 31 of 57
642	642	614 (g) Unless otherwise provided in any judgment entered, claims allowed pursuant to this
643	643	615section shall bear interest at the rate provided under section 6I of chapter 231 commencing 4
644	644	616months plus 60 days after approval of the official bond of the personal representative.
645	645	617Notwithstanding the foregoing, if the division fails to commence an action after receipt of a
646	646	618notice under clause (2) of subsection (d), interest at the rate provided under section 6I of chapter
647	647	619231 shall not commence until the circumstances or conditions specified in the notice received by
648	648	620the division under said clause (2) cease to exist. The personal representative shall notify the
649	649	621division within 30 calendar days of any change in the circumstances or conditions asserted in
650	650	622said clause (2) notice, and upon request by the division, shall provide updated documentation
651	651	623verifying that the circumstances or conditions continue to exist. If the division's claim has been
652	652	624allowed as provided herein and no circumstances and conditions requiring that the division defer
653	653	625recovery under section 31 exist, it may petition the probate court for an order directing the
654	654	626personal representative to pay the claim to the extent that funds are available or for such further
655	655	627relief as may be required.
656	656	628 (h) Notice of a petition by a personal representative for a license to sell real estate shall
657	657	629be given to the division in any estate where: (1) the division has filed a written statement of
658	658	630claim with the registry of probate as provided in subsection (b); or (2) the division has filed with
659	659	631the registry of probate a notice, as prescribed under subsection (a) of section 9 of chapter 197,
660	660	632that an action has been commenced.
661	661	633 (i) In all cases where:—
662	662	634 (1) the division determines it may have a claim against a decedent's estate; 32 of 57
663	663	635 (2) a petition for administration of the decedent's estate or for admission to probate of the
664	664	636decedent's will has not been filed; and
665	665	637 (3) more than 1 year has passed from the decedent's date of death, the division is hereby
666	666	638authorized to designate a public administrator to be appointed and to serve pursuant to chapter
667	667	639194 subject to the time limitations under chapter 190B. Said designation by the division shall
668	668	640include a statement of the amount claimed. This provision shall apply to all estates in which no
669	669	641petition for administration of the decedent's estate or for admission to probate of the decedent's
670	670	642will has been filed as of the effective date of this section, regardless of the decedent's date of
671	671	643death. Said public administrator shall have the same rights and duties as the personal
672	672	644representative and the same 60-day opportunity to send notice to the division
673	673	645 (1) that the claim is disallowed in whole or in part; or
674	674	646 (2) circumstances and conditions where the division is required to defer recovery under
675	675	647section 31 exist; or
676	676	648 (3) circumstances and conditions where the division will waive recovery for undue
677	677	649hardship under its regulations exist.
678	678	650 (j) If the personal representative wishes to sell or transfer any real property against which
679	679	651the division has filed a lien or claim not yet enforceable because circumstances or conditions
680	680	652specified in section 31 continue to exist, the division shall release the lien or claim if the personal
681	681	653representative agrees to (1) either set aside sufficient assets to satisfy the lien or claim, or to give
682	682	654bond to the division with sufficient surety or sureties and (2) repay the division as soon as the
683	683	655circumstances or conditions which resulted in the lien or claim not yet being enforceable no
684	684	656longer exist. Notwithstanding the foregoing provision or any general or special law to the 33 of 57
685	685	657contrary, the division and the parties to the sale may by agreement enter into an alternative
686	686	658resolution of the division's lien or claim.
687	687	659 SECTION 63. Said chapter 118E is further amended by inserting after section 34 the
688	688	660following section:-
689	689	661 Section 34A. (a) The division shall give notice of the conditions in which it may seek
690	690	662estate recovery, including, but not limited to, an explanation of what constitutes an estate, what
691	691	663services and expenses are subject to recovery, what Medicaid spending or property is exempt
692	692	664from estate recovery, the relationship between a life-time lien and estate recovery and provisions
693	693	665for deferral or waiver of estate recovery. The notice shall be in clear and non-technical language
694	694	666with citation to the applicable law. The notice should also explain how an individual may obtain
695	695	667an accounting of the current amount of MassHealth spending potentially subject to recovery. The
696	696	668notice must be supplied to individuals potentially subject to estate recovery at the time of
697	697	669application, at least annually thereafter so long as said individuals are eligible for MassHealth,
698	698	670and at the time any lien is released.
699	699	671 (b) The division shall give an additional notice to any individual who is required to enroll
700	700	672or given the option to enroll in any Medicaid managed care organization, accountable care
701	701	673organization, senior care options plan, integrated care organization, prepaid health plan or any
702	702	674other delivery system in which Medicaid spending takes the form of a fixed monthly premium or
703	703	675other capitated amount who may be subject to estate recovery. Said additional notice shall be
704	704	676prior to enrollment in managed care, and shall explain how the amount of MassHealth spending
705	705	677subject to estate recovery is determined when MassHealth spending is a fixed monthly payment 34 of 57
706	706	678or capitated amount, and how the member may obtain the amount of said fixed payment or
707	707	679capitated amount subject to estate recovery.
708	708	680 SECTION 64. The executive office shall file a state plan amendment or waiver
709	709	681application, as may be required, to implement the provisions of this Act.
710	710	682 SECTION 65. Section 4 of chapter 19A of the general laws is hereby amended by adding
711	711	683in subsection (d) after the word “persons”, the following:-
712	712	684 “Including, but not limited to, providing information about the Program of All-Inclusive
713	713	685Care for the Elderly (PACE), pursuant to 42 CFR Part 460.60, Senior Care Options (SCO) and
714	714	686fee for service (CHOICES).”.”
715	715	687 SECTION 66. Section 4B of chapter 19A of the general laws is hereby amended by
716	716	688adding in the fourth paragraph after the words “referral services to elders” in subsection (1) the
717	717	689following:-
718	718	690 “provided, that said information and referral services shall include, but not be limited to,
719	719	691information about the Program of all-inclusive care for the elderly (PACE) pursuant to 42 CFR
720	720	692Part 460.60; Senior Care Options (SCO) and fee for service (CHOICES).
721	721	693 SECTION 67. Section 9 of chapter 118E of the general laws is hereby amended by
722	722	694striking paragraph four and adding in place there of the following:-
723	723	695 “A person seeking admission to a long-term care facility paid for by MassHealth shall
724	724	696receive pre-admission counseling for long-term care services, which shall include an assessment
725	725	697of community-based service options including but not limited to the Program of all-inclusive
726	726	698care for the elderly (PACE) pursuant to CFR Part 460.60 Senior Care Options (SCO) and fee for 35 of 57
727	727	699service (CHOICES). A person seeking care in a long-term care facility on a private pay basis
728	728	700shall be offered pre-admission counseling. For the purposes of this section, pre-admission
729	729	701counseling shall be conducted by the executive office of health and human services or the
730	730	702executive office of elder affairs or their subcontractors. The executive office of elder affairs
731	731	703shall, in consultation with the office of acute and ambulatory care in the executive office of
732	732	704health and human services, study the advisability and feasibility of using certain Medicaid
733	733	705providers to provide pre-admission counseling. The division shall report to the general court on
734	734	706an annual basis the number of individuals who received pre-admission counseling under this
735	735	707section and the number of diversions to the community generated by the pre-admission
736	736	708counseling program.”
737	737	709 SECTION 68. Section 3 of chapter 40A of the General Laws, as appearing in the 2014
738	738	710Official Edition, is hereby amended by inserting after the last paragraph the following 3
739	739	711paragraphs:-
740	740	712 No zoning ordinance or by-law shall prohibit or require a special permit for the use of
741	741	713land or structures for an accessory dwelling unit, or the rental thereof, in a single-family
742	742	714residential zoning district on a lot with 5,000 square feet or more or on a lot of sufficient area to
743	743	715meet the requirements of title 5 of the state environmental code established by section 13 of
744	744	716chapter 21A, if applicable; provided, however, that the single-family dwelling or the accessory
745	745	717dwelling unit is occupied by at least 1 person with disabilities or 1 person who is elderly.
746	746	718 As used in this section, “accessory dwelling unit” shall mean a self-contained housing
747	747	719unit, inclusive of sleeping, cooking and sanitary facilities, incorporated within the same structure
748	748	720as a single-family dwelling or in a detached accessory structure and that: (i) maintains a separate 36 of 57
749	749	721entrance, either directly from the outside or through an entry hall or corridor shared with the
750	750	722single dwelling; (ii) shall not be sold separately from the single family dwelling; (iii) is not
751	751	723smaller in floor area than 450 square feet; (iv) may include up to two bedrooms; and (v) is not
752	752	724larger in floor area than ½ the floor area of the single family dwelling or 900 square feet,
753	753	725whichever is smaller; “person with disabilities” shall mean a person who has been determined to
754	754	726be disabled (i) in accordance with criteria established by local by-law or ordinance, if any, or (ii)
755	755	727by the Social Security Administration or MassHealth, notwithstanding any local by-law or
756	756	728ordinance; and “elderly” shall mean a person sixty-five years of age or older.
757	757	729 The zoning ordinance or by-law may require that the single-family dwelling or the
758	758	730accessory dwelling unit be owner-occupied and may limit the total number of accessory dwelling
759	759	731units in the municipality to a percentage not lower than 5 percent of the total non-seasonal
760	760	732housing units in the municipality. The use of land or structures for an accessory dwelling unit
761	761	733may be subject to reasonable regulations concerning dimensional setbacks and the bulk and
762	762	734height of structures. Not more than 1 additional parking space shall be required for an accessory
763	763	735dwelling unit but, if parking is required for the single family dwelling, that parking shall either
764	764	736be retained or replaced. An accessory dwelling unit allowed under this section is considered
765	765	737owner-occupied upon transfer of title of the single-family dwelling in whole or in part to a trust
766	766	738in which at least 1 beneficiary is a person with disabilities or a person who is elderly; provided,
767	767	739however, that either the single-family dwelling or the accessory dwelling unit remains occupied
768	768	740by that beneficiary. Nothing in this paragraph shall authorize an accessory dwelling unit to
769	769	741violate the building, fire, health or sanitary codes, historic or wetlands laws, or ordinances or by-
770	770	742laws. 37 of 57
771	771	743 SECTION 69. The General Laws are hereby amended by inserting after Chapter 19D, the
772	772	744following new chapter: –
773	773	745 Chapter 19D1/2
774	774	746 Section 1: Purpose
775	775	747 (a) The purpose of this chapter is to enable a setting of care that is referred to as personal
776	776	748care homes. This chapter establishes licensing requirements to protect the health, safety and
777	777	749wellbeing of personal care home residents.
778	778	750 (b) Personal care homes are designed to provide safe, humane, comfortable and
779	779	751supportive residential settings for adults who require assistance or supervision with activities of
780	780	752daily living or instrumental activities of daily living, and qualify for the State Home Care
781	781	753Program. Residents who live in personal care homes that meet the requirements in this chapter
782	782	754will receive the encouragement and assistance they need to develop and maintain maximum
783	783	755independence and self-determination.
784	784	756 Section 2: Definitions
785	785	757 When used in this chapter, unless the context requires otherwise, the following terms
786	786	758shall have the following meanings:
787	787	759 ''Aging services access point'' or ''ASAP'', any agency designated by the executive office
788	788	760of elder affairs pursuant to section 4B of chapter 19A.
789	789	761 "Commissioner", the commissioner of the department of transitional assistance as
790	790	762established by section 3 of chapter 18, or her designee. 38 of 57
791	791	763 “License”, a certificate of compliance issued by the Secretary permitting the operation of
792	792	764a personal care home, at a given location, for a specific period of time, for a specified capacity.
793	793	765 ''MassHealth Senior Care Options" or “SCO program", a program of medical, health and
794	794	766support services covered under Title XIX or Title XVIII of the Social Security Act, provided
795	795	767through senior care organizations.
796	796	768 “Personal care home” or “home”, a premise in which food, shelter and personal
797	797	769assistance or supervision are provided for a period exceeding 24 hours, for no more than six
798	798	770adults who are not relatives of the sponsor, who do not require the services in or of a licensed
799	799	771long-term care facility, but who do require assistance or supervision in activities of daily living
800	800	772or instrumental activities of daily living. The term includes a premise that has held or presently
801	801	773holds itself out as a personal care home and provides food and shelter to no more than six adults
802	802	774who need personal care services, but who are not receiving the services.
803	803	775 “Personal care home administrator” or “administrator”, an individual who is charged with
804	804	776the general administration of a personal care home, whether the individual has an ownership
805	805	777interest in the personal care home, and whether functions and duties are shared with other
806	806	778individuals.
807	807	779 “Secretary”, the secretary of the department of elder affairs as established by section 1 of
808	808	780chapter 19A, or her designee.
809	809	781 “Sponsor”, a person, society, corporation, governing authority or partnership legally
810	810	782responsible for the administration and operation of a personal care home. 39 of 57
811	811	783 “State Home Care Program”, an array of programs enabled by section 4 of chapter 19A
812	812	784that create a continuum of long-term care supports that shall also include the MassHealth Senior
813	813	785Care Options program.
814	814	786 Section 3: Regulations
815	815	787 The secretary may promulgate regulations for the implementation, administration and
816	816	788enforcement of this chapter; provided that regulations pursuant to section four are separate and
817	817	789distinct from regulations pursuant to sections five and six.
818	818	790 Section 4: Licensing of personal care homes
819	819	791 The secretary shall issue for a term of two years, and shall renew for like terms, a license,
820	820	792subject to revocation by it for cause, to any sponsor whom it deems responsible and suitable to
821	821	793establish or maintain a personal care home, which meets the requirements that the secretary
822	822	794established in accordance with her rules and regulations; provided, however, that each personal
823	823	795care home shall be inspected at least once a year.
824	824	796 The secretary may delegate the duty of inspection to an ASAP, and the results of said
825	825	797inspection will inform the secretary’s determination on the issuance or renewal of a license.
826	826	798 For purposes of this section, the secretary’s determination of responsibility and suitability
827	827	799shall include the following factors:
828	828	800 (i) the criminal history of the prospective sponsor, or any officer, director, shareholder or
829	829	801general or limited partner thereof, to which the secretary has been granted access or certification
830	830	802or may be subsequently granted access or certification by the department of criminal justice
831	831	803information services; 40 of 57
832	832	804 (ii) the financial capacity of the prospective sponsor to operate the personal care home in
833	833	805accordance with applicable laws;
834	834	806 (iii) the history of the prospective sponsor in providing home and community based long
835	835	807term care services within the commonwealth measured by compliance with applicable statutes
836	836	808and regulations governing the operation of such services; and
837	837	809 (iv) the history of the prospective sponsor in providing home and community based long
838	838	810term care services in states other than the commonwealth, if any, measured by compliance with
839	839	811the applicable statutes and regulations governing the operation of such services in said states.
840	840	812 (v) any other factors deemed reasonable and necessary by the secretary and promulgated
841	841	813in regulations pursuant to this chapter.
842	842	814 The secretary may, when public necessity and convenience require, or to prevent undue
843	843	815hardship to a sponsor or potential sponsor, under such rules and regulations as it may adopt,
844	844	816grant a temporary provisional or probationary license under this section; provided, however, that
845	845	817no such license shall be for a term exceeding one year.
846	846	818 Section 4A: Exemptions
847	847	819 No person shall advertise, operate or maintain a personal care home without the license
848	848	820required by this chapter; provided, however, that the provisions of this chapter shall not apply to
849	849	821such entities for the original facilities and services for which said entities were originally
850	850	822licensed or organized to provide:
851	851	823 (1) assisted living residence as defined by section 1 of chapter 19D; 41 of 57
852	852	824 (2) convalescent homes, nursing homes, rest homes, charitable homes for the aged or
853	853	825intermediate care facilities for persons with an intellectual disability licensed pursuant to section
854	854	82671 of chapter 111;
855	855	827 (3) hospices licensed pursuant to the provisions of section 57D of chapter 111;
856	856	828 (4) facilities providing continuing care to residents as defined by section 76 of chapter 93;
857	857	829 (5) congregate housing authorized by section 39 of chapter 121B;
858	858	830 (6) group homes operating under contract with the department of mental health or the
859	859	831department of developmental services;
860	860	832 (7) housing operated for only those duly ordained priests, or for the members of the
861	861	833religious orders of the Roman Catholic church in their own locations, buildings, residences or
862	862	834headquarters to provide care, shelter, treatment and medical assistance for any of the said duly
863	863	835ordained priests or members of the said religious orders; or
864	864	836 (8) Premises where the owner of the real property of the premises has no ownership,
865	865	837control or affiliation with any provider of home-based and community-based personal assistance
866	866	838services at those premises.
867	867	839 Section 4B: Transfer of Ownership
868	868	840 In the case of the transfer of ownership of a personal care home, a prospective transferee,
869	869	841in the capacity of a prospective sponsor, shall submit a notice of intent to acquire such a home to
870	870	842the secretary at least ninety days prior to the transfer of ownership. The notice of intent shall be
871	871	843on a form supplied by the secretary and shall be deemed complete upon submission of all
872	872	844information that the department requires on the notice of intent form and is reasonably necessary 42 of 57
873	873	845to carry out the purposes of this section. Within ninety days of the submission of a completed
874	874	846notice of intent form, the secretary shall determine whether such prospective sponsor is
875	875	847responsible and suitable for licensure. Requests by the secretary for information other than the
876	876	848information required on the notice of intent form shall not extend the ninety day period.
877	877	849Notwithstanding the foregoing, the secretary with the consent of said prospective licensee may
878	878	850extend the ninety day determination period for one additional period not to exceed thirty days.
879	879	851 The prospective sponsor shall be deemed responsible and suitable upon the expiration of
880	880	852the ninety day period, or upon the expiration of said period as extended, if the secretary fails to
881	881	853notify said prospective sponsor in writing of its decision within the ninety day period or within
882	882	854the expiration of the extension period, whichever is applicable.
883	883	855 Upon determination by the secretary that the prospective sponsor is responsible and
884	884	856suitable for licensure, or upon the failure of the department to notify said prospective sponsor in
885	885	857writing of its decision within the required period, and upon a transfer of ownership, the
886	886	858prospective sponsor may file an application for a license that shall have the effect of a license
887	887	859until the secretary takes final action on the application.
888	888	860 If the secretary determines that the prospective sponsor is not suitable for licensure, the
889	889	861secretary's determination shall take effect on the date of the secretary's notice. In such cases, the
890	890	862prospective sponsor shall upon the filing of a written request with the secretary be afforded an
891	891	863adjudicatory hearing pursuant to chapter thirty A. During the pendency of such appeal, the
892	892	864prospective sponsor shall neither operate the facility as a sponsor, nor, without prior approval of
893	893	865the secretary, manage such personal care home. 43 of 57
894	894	866 No transfer of ownership of a personal care home shall occur unless the prospective
895	895	867sponsor has been deemed suitable for licensure in accordance with the provisions of this section.
896	896	868 Section 4C: Denial, suspension, or revocation of license
897	897	869 The secretary may deny, suspend or revoke a license in any case after finding a failure or
898	898	870refusal to comply with the requirements established under this chapter or the regulations
899	899	871promulgated thereunder. Notice of denial, revocation, suspension or modification and the
900	900	872sponsor's or prospective sponsor’s right to an adjudicatory proceeding shall be governed by the
901	901	873provisions of chapter 30A.
902	902	874 In no case shall the revocation of such a license take effect in less than thirty days after
903	903	875written notification by the Secretary to the personal care home.
904	904	876 Section 4D: Licensing Fee
905	905	877 The fee for the issue or renewal of each license shall be determined annually by the
906	906	878commissioner of administration under the provision of section 3B of chapter 7. The fee shall be
907	907	879sufficient to support the direct and indirect costs incurred by the department of elder affairs
908	908	880related to the duties established by section 4, including, but not limited to, costs incurred when
909	909	881the secretary delegates inspection to an ASAP.
910	910	882 Section 4E: Access
911	911	883 The Sponsor or Administrator shall provide, upon request, immediate access to the home,
912	912	884the residents and records to agents of the department of elder affairs, representatives of the
913	913	885ASAP and representatives of the long-term care ombudsman program.
914	914	886 Section 5: Delivery of long-term services and supports 44 of 57
915	915	887 Consistent with the powers enumerated in section 4 of chapter 19A, the secretary shall
916	916	888mobilize the human, physical and financial resources available to develop and implement
917	917	889innovative programs and service models to support residents of personal care homes. The
918	918	890secretary shall encourage the development and availability of personal care homes as a care
919	919	891setting option for individuals who require assistance or supervision with activities of daily living,
920	920	892instrumental activities of daily living or both.
921	921	893 All residents of personal care homes who meet the eligibility requirements of the state
922	922	894home care program as defined in section 2 shall have access to the services and supports
923	923	895provided by the program.
924	924	896 When a personal care home resident is enrolled in the state home care program, a sponsor
925	925	897must accept as full payment for cost of care services the amount of the combined service
926	926	898revenues resulting from the state home care program, and any other formal and informal
927	927	899resources being coordinated through the service plan as maintained by the ASAP. All residents
928	928	900of personal care homes shall have a person-centered care plan maintained and authorized by an
929	929	901ASAP.
930	930	902 Section 6: Resident Contract
931	931	903 The personal care home shall have a signed contract with each resident that specifies the
932	932	904terms of his or her agreement. The secretary shall establish the minimum requirements of the
933	933	905resident contract between the personal care home administrator and the personal care home
934	934	906resident.
935	935	907 The resident contract shall include, but not be limited to, the following: 45 of 57
936	936	908 (1) Information regarding services the resident will receive covered under the ASAP
937	937	909service plan. The ASAP service plan will account for both formal and informal services
938	938	910coordinated for the resident, and in consideration of the service schedules of the other residents
939	939	911within the particular personal care home;
940	940	912 (2) Arrangements for payment, including cost-sharing requirements of the ASAP service
941	941	913plan;
942	942	914 (3) A grievance procedure that requires the initial grievance to be presented to the
943	943	915personal care home administrator, and includes an escalation process for the grievance to be
944	944	916further reviewed first by the ASAP and then by the executive office of elder affairs;
945	945	917 (4) The conditions under which either party may terminate the resident contract; and
946	946	918 (5) Information and acknowledged disclosure regarding how the resident may contact the
947	947	919community care ombudsman.
948	948	920 The term of a resident contract shall not exceed one year and may be renewable for one
949	949	921year at the option of the personal care home resident. A condition of the option is for a person-
950	950	922centered care plan maintained and authorized by the ASAP and approved by the personal care
951	951	923home resident to be in place at the time of extension.
952	952	924 Section 6A: Discharge
953	953	925 The secretary shall establish the procedural requirements for an involuntary discharge,
954	954	926including the notice requirements and the related appeal process, in furtherance of this section.
955	955	927 If a personal care home resident does not meet the terms for occupancy as stated in the
956	956	928resident contract, the personal care home shall not commence involuntary discharge until the 46 of 57
957	957	929administrator has discussed the reasons for the involuntary discharge with the designated
958	958	930representative of the personal care home resident and the ASAP care manager responsible for the
959	959	931service plan. Documentation of the discussions shall be placed in the resident’s record.
960	960	932 A resident may be involuntarily discharged only if one or more of the following occurs:
961	961	933 (1) The resident poses an immediate threat to self or others;
962	962	934 (2) The resident needs mental health services to prevent harm to self or others;
963	963	935 (3) The resident has substantially breached the conditions of the residential contract;
964	964	936 (4) The personal care home sponsor has had its license terminated, suspended, not
965	965	937renewed, or voluntarily surrendered; or
966	966	938 (5) The personal care home can no longer meet the resident’s needs with available
967	967	939support services. Triggering this occurrence requires a signed affirmation by the ASAP
968	968	940responsible for maintaining the service plan. Furthermore, triggering this occurrence requires the
969	969	941clinical review of an ASAP from a contiguous service area with a signed statement confirming
970	970	942that the reviewing ASAP does not object to the involuntary discharge for the reason of no longer
971	971	943being able to meet the resident’s needs with available support services.
972	972	944 The secretary shall establish the procedural requirements for an involuntary discharge,
973	973	945including the notice requirements and the related appeal process.
974	974	946 The administrator shall prepare plans, in consultation with the ASAP, to ensure safe and
975	975	947orderly involuntary discharge while protecting resident health, safety and rights.
976	976	948 Section 7: Supports for Room and Board 47 of 57
977	977	949 The secretary shall coordinate with the commissioner to develop an optional state
978	978	950supplement for recipients of supplemental security income who reside in personal care homes.
979	979	951The optional state supplement shall be no less than the supplement for assisted living. The
980	980	952optional state supplement may exceed the assisted living supplement by no more than ten
981	981	953percent.
982	982	954 The secretary shall recommend, and the commissioner shall establish and routinely
983	983	955revise, a personal needs allowance for residents of personal care homes.
984	984	956 A personal care home shall accept as full payment for room and board the amount of the
985	985	957combined optional state supplement and the supplemental security income payment, minus the
986	986	958personal needs allowance.
987	987	959 Section 8: ASAP Performing as Sponsor
988	988	960 Consistent with section 4B of chapter 19A, an ASAP may, in its role of a nonprofit
989	989	961agency capable of marshaling resources from within the community it serves, serve as sponsor to
990	990	962a personal care home. In such an instance, for the purpose of paragraph six in section 4 of
991	991	963chapter 19A, an ASAP coordinating and receiving the supports for room and board payments
992	992	964related to section 7 of said chapter shall not be considered a direct service.
993	993	965 When performing as a personal care home sponsor, the ASAP shall submit a plan for the
994	994	966review and approval of the secretary that specifies the measures taken to ensure adherence to the
995	995	967requirements of paragraph six in section 4 of chapter 19A.
996	996	968 SECTION 70. Chapter 121B is hereby amended by adding the following section:- 48 of 57
997	997	969 Section 61. (a) For purposes of this section, unless the context clearly requires otherwise,
998	998	970the following words shall have the following meanings:
999	999	971 “Bullying”, the repeated use by one or more residents of employees of, or visitors to, a
1000	1000	972covered residential community of a written, verbal or electronic expression physical act or
1001	1001	973gesture or any combination thereof, directed at a victim that: (i) causes physical or emotional
1002	1002	974harm to the victim or damage to the victim's property; (ii) places the victim in reasonable fear of
1003	1003	975harm to himself or of damage to his property; (iii) creates a hostile environment for the victim;
1004	1004	976(iv) infringes on the rights of the victim at a covered residential community; or (v) materially and
1005	1005	977substantially disrupts the orderly operation of a covered residential community. For the purposes
1006	1006	978of this section, bullying shall include but not be limited to cyber-bullying, group or social
1007	1007	979bullying, and mobbing.
1008	1008	980 “Covered residential community”, a public or privately-owned, multifamily residential
1009	1009	981housing development subsidized in whole or in part by the U.S. Department of Housing and
1010	1010	982Urban Development or the Commonwealth of Massachusetts and intended for occupancy
1011	1011	983primarily or solely persons aged 55 or older and/or persons with disabilities.
1012	1012	984 “Cyber-bullying”, bullying through the use of technology or any electronic
1013	1013	985communication, which shall include, but shall not be limited to, any transfer of signs, signals,
1014	1014	986writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a
1015	1015	987wire, radio, electromagnetic, photo electronic or photo optical system, including, but not limited
1016	1016	988to, electronic mail, internet communications, instant messages, instant messages or facsimile
1017	1017	989communications. Cyber-bullying shall also include (i) the creation of a web page or blog in
1018	1018	990which the creator assumes the identity of another person or (ii) the knowing impersonation of 49 of 57
1019	1019	991another person as the author or posted content or messages, if the creation of impersonation
1020	1020	992creates any of the conditions enumerated in clauses (i) to (v), inclusive, of the definition of
1021	1021	993bullying. Cyber-bullying shall also include the distribution by electronic means of a
1022	1022	994communication to more than one person or the posting of material on an electronic medium that
1023	1023	995may be accessed by one or more persons, if the distribution or posting creates any of the
1024	1024	996conditions enumerated in clauses (i) to (v), inclusive or the definition of bullying.
1025	1025	997 “Group or social bullying” is the attempt by several persons acting together to engage in
1026	1026	998bullying conduct toward one or more victims by intentional, repeated, aggressive speech or
1027	1027	999action capable of causing harm.
1028	1028	1000 “Hostile environment”, a situation in which bullying causes the residential environment
1029	1029	1001to be permeated with intimidation, ridicule, or insult that is sufficiently severe or pervasive to
1030	1030	1002interfere with a resident’s peaceful enjoyment of her tenancy or rights as a tenant.
1031	1031	1003 “Mobbing”, is bullying that owner/management employees condone or take part in, with
1032	1032	1004the purpose of demeaning the victim and excluding them from the social life, quiet enjoyment of
1033	1033	1005occupancy, or occupancy status in a covered residential community.
1034	1034	1006 “Owner/managers”, the owner of a covered residential community and/or the property
1035	1035	1007manager or management agent responsible for managing a covered residential community.
1036	1036	1008 “Plan”, a bullying prevention and intervention plan established pursuant to subsection
1037	1037	1009(d). 50 of 57
1038	1038	1010 “Perpetrator”, a person who engages in bullying or retaliation, or an owner/management
1039	1039	1011company whose employees engage in, support or condone bullying, group or social bullying or
1040	1040	1012mobbing.
1041	1041	1013 “Residential property and grounds”, property on which a covered residential community
1042	1042	1014is located or property that is owned, leased, or used by an owner/manager or group of residents
1043	1043	1015for an activity, function, program, instruction or training related to the operation of the
1044	1044	1016residential community.
1045	1045	1017 “Victim”, a person against whom bullying, group or social bullying, mobbing, or
1046	1046	1018retaliation has been perpetrated.
1047	1047	1019 (b) Bullying shall be prohibited: (i) on residential property and ground, at an
1048	1048	1020owner/manager or resident sponsored activity, function or program whether on or off residential
1049	1049	1021grounds or through the use of technology or an electronic device owned, leased, or used by an
1050	1050	1022owner/manager; and (ii) at an owner/manager sponsored location, activity, or function or
1051	1051	1023program that is not located within the covered residential community, or through the use of
1052	1052	1024technology or an electronic device that is not owned, leased, or used by an owner/manager, if the
1053	1053	1025bullying creates a hostile environment in a covered residential community for the victim,
1054	1054	1026infringes on the rights of the victim at a covered residential community or materially and
1055	1055	1027substantially disrupts the orderly operation of a covered residential community. Nothing
1056	1056	1028contained herein shall require an owner/manager to staff any non-residence related activities,
1057	1057	1029functions, or programs. 51 of 57
1058	1058	1030 Retaliation against a person who reports bullying, provides information during an
1059	1059	1031investigation or bullying, or witnesses or has reliable information about bullying shall be
1060	1060	1032prohibited.
1061	1061	1033 (c) The public safety division of the Commonwealth’s attorney general’s office, after
1062	1062	1034consultation with the department of public health, the department of mental health, the executive
1063	1063	1035office of elder affairs, the office on disability, the department of housing and community
1064	1064	1036development, Mass Housing, the Massachusetts district attorneys association, representatives or
1065	1065	1037areawide tenant organizations representing residents of covered residential communities,
1066	1066	1038representatives or areawide associations or resident service coordinators and owner/managers,
1067	1067	1039and experts on bullying, group or social bullying, and mobbing shall, within one year of
1068	1068	1040enactment of this legislation: (i) publish a model plan and training curricula for owner/managers
1069	1069	1041to consider when creating their plans and curricula; and (ii) create and compile list of bullying
1070	1070	1042prevention and intervention resources, evidence-based curricula, best practices and academic-
1071	1071	1043based research that shall be made available to covered residential communities. The resources
1072	1072	1044may include, but shall not be limited to, print, audio, video or digital media; subscription based
1073	1073	1045online services; and on-site or technology-enabled professional development and training
1074	1074	1046sessions. The Division shall biennially update the model plan and the list of the resources,
1075	1075	1047curricula, best practices and research and shall post them on its website. The division shall
1076	1076	1048conduct a biennial confidential survey of residents and management staff to assess the
1077	1077	1049prevalence and extent of bullying and the effectiveness of remedial efforts, and publish the
1078	1078	1050findings while protecting the confidentiality of respondents. 52 of 57
1079	1079	1051 (d) Each owner/manager of a covered residential community shall provide appropriate
1080	1080	1052training on bullying prevention to all employees and residents of a covered residential
1081	1081	1053community. The curriculum shall be evidence-based.
1082	1082	1054 (e) (1) Each covered residential community shall develop, adhere to and update a plan to
1083	1083	1055address bullying prevention and intervention in consultation with residents, any legitimate
1084	1084	1056residents’ association as defined by 24 CFR Part 245, resident support organizations,
1085	1085	1057owner/manager service employees, on-site management staff, professional support personnel,
1086	1086	1058community representatives, local law enforcement agencies, and division staff. The consultation
1087	1087	1059shall include, but not be limited to, notice and a public comment period. The plan shall be
1088	1088	1060adopted and implemented within six months of preparation of a model plan by the division and
1089	1089	1061updated at least biennially.
1090	1090	1062 (2) Each plan shall include, but not be limited to: (i) descriptions of and statements
1091	1091	1063prohibiting bullying, group or social bullying, mobbing, cyber-bullying and retaliation; (ii) clear
1092	1092	1064procedures for residents, owner/manager employees, visitors, relatives, partners, guardians and
1093	1093	1065others to report bullying or retaliation; (iii) a provision that reports of bullying or retaliation may
1094	1094	1066be made anonymously; provided, however, that no disciplinary action shall be taken against a
1095	1095	1067resident or owner/manager employee solely on the basis of an anonymous report; (iv) clear
1096	1096	1068procedures for promptly responding to and investigating reports of bullying or retaliation; (v) the
1097	1097	1069range of remedial actions that may be taken against a perpetrator for bullying or retaliation,
1098	1098	1070including but not limited to employment sanctions or lease enforcement; provided,
1099	1099	1071however, that the remedial actions shall balance the need for accountability with the need to
1100	1100	1072teach appropriate behavior; (vi) clear procedures for restoring a sense of safety for a victim and
1101	1101	1073assessing that victim’s needs for protection; (vii) strategies for protecting from bullying or 53 of 57
1102	1102	1074retaliation a person who reports bullying, provides information during an investigation of
1103	1103	1075bullying or witnesses or has reliable information about an act of bullying; (viii) procedures
1104	1104	1076consistent with state and federal law for promptly notifying the relatives, partners, or guardians
1105	1105	1077of a victim and a perpetrator, if appropriate and authorized by the victim; provided, further, that
1106	1106	1078the relatives, partners and guardians of a victim shall also be notified of the action taken to
1107	1107	1079prevent any further acts of bullying or retaliation, if appropriate and authorized by the victim;
1108	1108	1080and provided, further, that the procedures shall provide for immediate notification pursuant to
1109	1109	1081regulations promulgated under this subsection by the division or person who holds a comparable
1110	1110	1082role to the local law enforcement agency when civil and/or criminal charges may be pursued
1111	1111	1083against the perpetrator; (ix) a provision that a person who knowingly makes a false accusation of
1112	1112	1084bullying or retaliation shall be subject to remedial action or sanction; and (x) a strategy for
1113	1113	1085providing, counseling or referring to appropriate services for perpetrators and victims and for
1114	1114	1086appropriate family members of said residents. The plan shall also reference existing regulatory
1115	1115	1087and lease protections applicable to the covered residential community, including but not limited
1116	1116	1088to grievance procedures and protections for public housing tenants; lease and 24 CFR Part 245,
1117	1117	1089protections for HUD multifamily tenants; and comparable protections for MassHousing tenants
1118	1118	1090in elderly/handicapped housing. Each plan shall also include procedures for victims to appeal
1119	1119	1091confidentially to the division in cases where the alleged perpetrator is the owner/manager or
1120	1120	1092employee of the covered residential community and the resident is concerned about retaliation.
1121	1121	1093 (3) Nothing in this section shall prevent an owner/manager from remediating any
1122	1122	1094discrimination or harassment based on a person’s membership in a legally protected category
1123	1123	1095under local, state or federal law. 54 of 57
1124	1124	1096 (4) The plan for a covered residential community shall include a provision for ongoing
1125	1125	1097professional development and training to build the skills of all employees, including, but not
1126	1126	1098limited to, on-site managers, social service or resident service coordinators, maintenance and
1127	1127	1099office clerical staff, to prevent, identify and respond to bullying. The content of such professional
1128	1128	1100development shall include, but not be limited to: (i) appropriate strategies to prevent bullying
1129	1129	1101incidents; (ii) appropriate strategies for immediate, effective interventions to stop bullying
1130	1130	1102incidents; (iii) information regarding the complex interaction and power differential that can take
1131	1131	1103place between and among one or more perpetrators, victims and witnesses to the bullying; (iv)
1132	1132	1104research findings on bullying, including information about specific categories of residents who
1133	1133	1105have been shown to be particularly at risk for bullying in the environment or covered residential
1134	1134	1106communities, and the role of mental illness, dementia, behavioral disorders, domestic violence
1135	1135	1107and substance abuse as they may affect both victims and perpetrators; (v) information on the
1136	1136	1108incidence and nature of cyber-bullying; and (vi) internet safety issues as they relate to cyber-
1137	1137	1109bullying. The division shall identify and offer information on alternative methods for fulfilling
1138	1138	1110the professional development requirements of this section, at least one of which shall be
1139	1139	1111available at no cost to owners/managers of covered residential communities.
1140	1140	1112 (5) The plan may include provisions for informing relatives, partners, and guardians
1141	1141	1113about the bullying prevention curriculum of the covered residential community and shall include,
1142	1142	1114but not be limited to: (i) how relatives, partners and guardians can reinforce the curriculum and
1143	1143	1115support the owner/manager or division plan; (ii) the dynamics of bullying; and (iii) online safety
1144	1144	1116and cyber-bullying.
1145	1145	1117 (6) The division shall promulgate rules and regulations on the requirements related to an
1146	1146	1118owner/agent’s duties under clause (viii) of the second paragraph of subsection (e). 55 of 57
1147	1147	1119 (f)(1) Each owner/manager shall provide to residents and/or their designees, in
1148	1148	1120appropriate languages or means of communication, annual written notice of the relevant resident-
1149	1149	1121related sections of the plan.
1150	1150	1122 (2) Each owner/manager shall provide to all employees of a covered residential
1151	1151	1123community annual written notice of the plan. The employees at each covered residential
1152	1152	1124community shall be trained biennially on the plan. The relevant section of the plan relating to the
1153	1153	1125duties of employees shall be included in an owner/agent employee handbook or policies.
1154	1154	1126 (3) The plan shall be posted on the website of each owner/manager or a covered
1155	1155	1127residential community, or otherwise made available to residents, staff and interested members of
1156	1156	1128the public.
1157	1157	1129 (g) Each owner/manager shall be responsible for the implementation and oversight of the
1158	1158	1130plan at her covered residential community.
1159	1159	1131 (h) Any employee of a covered residential community, including on-site management
1160	1160	1132staff, social service or resident service coordinator, maintenance or clerical staff, shall
1161	1161	1133immediately report any instance of bullying or retaliation the staff member has witnessed or
1162	1162	1134become aware of to the owner/manager official identified in the plan as responsible for receiving
1163	1163	1135such reports. Upon receipt of such a report, the owner/manager or a designee shall promptly
1164	1164	1136conduct an investigation. If the owner/manager or a designee determines that bullying or
1165	1165	1137retaliation has occurred, the owner/manager or designee shall (i) take appropriate remedial
1166	1166	1138action, in consultation with the victim; and (ii) assist the victim in notifying the local law
1167	1167	1139enforcement agency if the owner/manager or designee believes that civil, criminal or both civil
1168	1168	1140and criminal charges may be pursued against a perpetrator. 56 of 57
1169	1169	1141 (i) If an incident of bullying or retaliation occurs on the grounds of a covered residential
1170	1170	1142community and involves a former resident or employee who is no longer involved in a covered
1171	1171	1143residential community, the owner/manager informed of the bullying or retaliation shall contact
1172	1172	1144law enforcement consistent with the provisions of clause (viii) of the second paragraph of
1173	1173	1145subsection (e).
1174	1174	1146 (j) Nothing in this section shall supersede or replace existing rights or remedies under any
1175	1175	1147other general or special law.
1176	1176	1148 SECTION 71 (a) Notwithstanding any special or general law to the contrary, there shall
1177	1177	1149be a special commission established to study and report on alternatives to the arrest and
1178	1178	1150incarceration for individuals with developmental and intellectual disabilities. The report shall
1179	1179	1151include, but not be limited to, findings and recommendations on: (i) existing options for diverting
1180	1180	1152individuals with disabilities from incarceration; (ii) recommendations for improving the process
1181	1181	1153by which individuals with disabilities are placed; (iii) techniques to identify individuals at risk
1182	1182	1154due to developmental or intellectual disabilities or pervasive mental health conditions; (iv)
1183	1183	1155techniques, services, and other resources to prevent exacerbation of issues.
1184	1184	1156 (b) The commission shall consist of the following 21 members: the secretary of health
1185	1185	1157and human services or a designee, who shall serve as co-chair; the secretary of public safety and
1186	1186	1158security or a designee, who shall serve as co-chair; the commissioner of the department of
1187	1187	1159developmental services or a designee; the commissioner of the department of mental health or a
1188	1188	1160designee; the chairs of the joint committee on the judiciary; the chairs of the joint committee on
1189	1189	1161children, families and persons with disabilities; one member of the senate to be appointed by the
1190	1190	1162president of the senate; one member of the senate to be appointed by the minority leader; one 57 of 57
1191	1191	1163member of the house of representatives to be appointed by the speaker of the house of
1192	1192	1164representatives; one member of the house of representatives to be appointed by the house
1193	1193	1165minority leader of the house of representatives; the president of the Massachusetts Sheriffs’
1194	1194	1166Association or a designee; the president of the Massachusetts District Attorneys’ Association or
1195	1195	1167a designee; the president of the Massachusetts Chiefs of Police or a designee; the chief counsel
1196	1196	1168of the committee for public counsel services or a designee; a representative from the Arc of
1197	1197	1169Massachusetts; a representative from the Disability Law Center; a representative from the
1198	1198	1170Disability Policy Consortium; a representative from the Center for Public Representation; a
1199	1199	1171representative from Dignity Alliance Massachusetts; a representative from an organization
1200	1200	1172involved with persons who are autistic, to be appointed by the governor; and a clinician with
1201	1201	1173experience working with intellectually and developmentally disabled individuals in the criminal
1202	1202	1174justice system, to be appointed by the governor.
1203	1203	1175 (c) The commission shall file a report of its findings and recommendations, together with
1204	1204	1176drafts of legislation necessary to carry those recommendations into effect, with the clerks of the
1205	1205	1177house of representatives and the senate not later than July 31, 2024.