Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H201 Compare Versions

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

Old	New	Differences
1	1	1 of 1
2	2	HOUSE DOCKET, NO. 3278 FILED ON: 1/20/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 201
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Christopher M. Markey
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 supported decision making.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Christopher M. Markey9th Bristol1/20/2023Vanna Howard17th Middlesex2/2/2023Marc T. Lombardo22nd Middlesex2/23/2023 1 of 8
16	16	HOUSE DOCKET, NO. 3278 FILED ON: 1/20/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 201
18	18	By Representative Markey of Dartmouth, a petition (accompanied by bill, House, No. 201) of
19	19	Christopher M. Markey, Vanna Howard and Marc T. Lombardo relative to supported decision-
20	20	making agreements. Children, Families and Persons with Disabilities.
21	21	[SIMILAR MATTER FILED IN PREVIOUS SESSION
22	22	SEE HOUSE, NO. 272 OF 2021-2022.]
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act relative to supported decision making.
29	29	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
30	30	of the same, as follows:
31	31	1 SECTION 1. Chapter 190B is hereby amended, after section 5-507, by inserting the
32	32	2following new section:-
33	33	3 Section 5-508. Supported Decision-Making Agreements
34	34	4 (a) As used in this section, the following words shall have the following meanings unless
35	35	5the context clearly requires otherwise:-
36	36	6 "Adult" means an individual 18 years of age or older.
37	37	7 “Coercion” means use of force or threats to persuade someone to do something. 2 of 8
38	38	8 "Decision-maker" means an adult who seeks to execute, or has executed, a supported
39	39	9decision-making agreement with one or more supporters under this chapter.
40	40	10 "Supported decision-making" means the process of supporting and accommodating the
41	41	11decision-maker, without impeding the self-determination of the decision-maker, in making life
42	42	12decisions, including, but not limited to, decisions related to where the decision-maker wants to
43	43	13live; the services, supports, financial decisions, and medical care the decision-maker wants to
44	44	14receive; whom the decision-maker wants to live with; or where the decision-maker wants to
45	45	15work.
46	46	16 "Supported decision-making agreement" is an agreement a decision-maker enters into
47	47	17with one or more supporters under this section to use supported decision-making.
48	48	18 "Supporter" means an adult who has entered into a supported decision-making agreement
49	49	19with a decision-maker.
50	50	20 (b) A decision-maker may voluntarily, without undue influence or coercion, enter into a
51	51	21supported decision-making agreement with a supporter or supporters. The decision-maker may
52	52	22change or terminate a supported decision-making agreement at any time, per the procedure(s)
53	53	23outlines in section (e).
54	54	24 (c) Except as limited by a supported decision-making agreement, a supporter may
55	55	25provide to the decision-maker the following decision-making assistance with the decision-
56	56	26maker’s affairs with the consent of the individual with the disability:
57	57	27 (1) assisting with making decisions, communicating decisions, and understanding
58	58	28information about, options for, the responsibilities of, and the consequences of decisions; 3 of 8
59	59	29 (2) accessing, obtaining, and understanding information that is relevant to decisions
60	60	30necessary for the decision-maker to manage his or her affairs, including medical, psychological,
61	61	31financial, and educational information; and medical and other records;
62	62	32 (3) ascertaining the wishes and decisions of the decision-maker; assisting in
63	63	33communicating those wishes and decisions to other persons; and advocating to ensure their
64	64	34implementation; and
65	65	35 (4) accompanying the decision-maker and participating in discussions with other persons
66	66	36when the decision-maker is making decisions or attempting to obtain information for decisions.
67	67	37 (d) A supporter may exercise only the authority granted to the supporter in the supported
68	68	38decision-making agreement.
69	69	39 (e) The supported decision-making agreement shall remain in effect until it is revoked,
70	70	40suspended, or terminated in accordance with the provision of this section.
71	71	41 (1) If the agreement sets forth a termination date, the supported decision-making
72	72	42agreement shall not be effective after the termination date.
73	73	43 (2) The decision-maker may revoke a supported decision-making agreement by notifying
74	74	44the supporters orally or in writing or by any other act evidencing a specific intent to revoke the
75	75	45agreement.
76	76	46 (3) Supporter may terminate participation in the agreement by written or oral notice to the
77	77	47decision-maker and the remaining supporters. If the supported decision-making agreement
78	78	48includes more than one supporter, the supported decision-making agreement shall survive for 4 of 8
79	79	49supporters who have not terminated their participation unless it is otherwise terminated or
80	80	50revoked in a manner set forth by this section.
81	81	51 (4) The disabled persons protection commission, an elder protective services agency, the
82	82	52department of developmental services, the department of mental health, or an interested person
83	83	53may petition the probate and family court to terminate, revoke, or suspend the operation of a
84	84	54supported decision-making agreement. If, after notice to decision-maker and a hearing at which
85	85	55the decision-maker shall have the right to be present and to be heard, the Court finds by clear and
86	86	56convincing evidence that that the decision-maker has been abused, neglected, or exploited by a
87	87	57supporter or supporters, the court may revoke, terminate, or suspend for a time to be determined
88	88	58by the court, the supported decision-making agreement. The agreement may survive if one or
89	89	59more supporters who were not found to have abused, neglected, or exploited the adult with a
90	90	60disability continues to be willing to serve as a supporter and the decision-maker agrees. If the
91	91	61decision-maker is indigent, the court shall forthwith appoint counsel for the decision-maker upon
92	92	62the filing of any petition under this paragraph.
93	93	63 (f)(1) A supporter is only authorized to assist the decision-maker in accessing, collecting,
94	94	64or obtaining information that is relevant to a decision authorized under the supported decision-
95	95	65making agreement and to which the decision-maker agrees that the supporter should have access.
96	96	66 (2) If a supporter assists the decision-maker in accessing, collecting, or obtaining
97	97	67personal information, including protected health information under the Health Insurance
98	98	68Portability and Accountability Act of 1996 (Pub. L. No. 104-191) or educational records under
99	99	69the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. section 1232g), the supporter 5 of 8
100	100	70shall ensure the information is kept privileged and confidential, as applicable, and is subject to
101	101	71neither unauthorized access, nor use, nor disclosure.
102	102	72 (g) The existence of a supported decision-making agreement does not preclude a
103	103	73decision-maker from seeking personal information without the assistance of a supporter.
104	104	74 (h) A supported decision-making agreement must be signed voluntarily, without coercion
105	105	75or undue influence, by the decision-maker and the supporter or supporters in the presence of two
106	106	76or more witnesses who are at least 18 years of age, and unrelated to the decision-maker and who
107	107	77are not supporters of the decision-maker, or a notary public.
108	108	78 (i)(1) A supported decision-making agreement is intended to be personalized by the
109	109	79decision-maker to reflect his or her personal circumstances.
110	110	80 (2) A supported decision-making agreement shall be in writing and shall:
111	111	81 (i) identify the decision-maker and the supporters;
112	112	82 (ii) describe the kinds of decisions with which the decision-maker wants assistance from
113	113	83each respective supporter;
114	114	84 (iii) indicate that the supporters agree to assist the decision-maker to make decisions, to
115	115	85respect the decision-maker's decisions, and, if necessary, to assist the decision-maker to
116	116	86communicate decisions, and, further, agree not to make decisions for the decision-maker;
117	117	87 (iv) indicate that the decision-maker may change, amend, or revoke the supported
118	118	88decision-making agreement at any time for any reason subject to the requirements of section (g); 6 of 8
119	119	89 (v) include a statement that if any person suspects the decision-maker has been abused,
120	120	90neglected or exploited by a supporter or supporters, the person may report the suspicion to, as
121	121	91applicable, the disabled persons protection commission or an elder protective services agency
122	122	92and shall include the contact information for the disabled persons protection commission, the
123	123	93elder abuse hot line, and, the human rights officer of any program providing services to the
124	124	94decision-maker; and
125	125	95 (vi) be signed by the decision-maker and the supporters, the decision-maker’s signature
126	126	96to be attested to by a notary public or, in the alternative, by two witnesses who are unrelated to
127	127	97the decision-maker and who are not supporters of the decision-making.
128	128	98 (j)(A) A person who receives the original or a copy of a supported decision-making
129	129	99agreement shall rely on the agreement and recognize a decision or request made or
130	130	100communicated with the decision-making assistance of a supporter under this chapter as the
131	131	101decision or request of the decision-maker.
132	132	102 (B) A person who, in good faith, acts in reliance on an authorization in a supported
133	133	103decision-making agreement is not subject to civil or criminal liability or to discipline for
134	134	104unprofessional conduct for relying on a decision made in accordance with a supported decision-
135	135	105making agreement.
136	136	106 (k) Execution of a supported decision-making agreement may not be a condition of
137	137	107participation in any activity, service, or program.
138	138	108 (l) If a person who receives a copy of a supported decision-making agreement or is aware
139	139	109of the existence of a supported decision-making agreement has cause to believe that the decision-
140	140	110maker is being abused, neglected, or exploited by the supporter, the person may report the 7 of 8
141	141	111alleged abuse, neglect, or exploitation to the disabled persons protection commission in
142	142	112accordance with chapter 19D or the Elder Abuse Prevention Hotline in accordance with chapter
143	143	11319C.
144	144	114 (m) Nothing in this section shall be interpreted to limit or restrict any individual’s right to
145	145	115execute a health care proxy pursuant to chapter 201D or a power of attorney pursuant to sections
146	146	1165-501 through 5-507 of chapter 190B.
147	147	117 SECTION 2. Chapter 190B of the General Laws is hereby amended in section 5-303,
148	148	118paragraph (b)(10) by inserting at the end thereof the following:-
149	149	119 whether alternatives to guardianship and available supports and services to avoid
150	150	120guardianship, including a supported decision-making agreement, were considered; and why such
151	151	121alternatives to guardianship and supports and services are not feasible or would not avoid the
152	152	122need for guardianship.
153	153	123 SECTION 3. Chapter 6A of the General Laws is hereby amended by inserting after
154	154	124section 16F the following section:-
155	155	125 Section 16F ½. The executive office of health and human services shall establish a
156	156	126training program on supported decision-making. The training program shall include instruction
157	157	127by state agencies including the department of developmental services, the department of mental
158	158	128health, the executive office of elder affairs and a non-profit corporation or corporations.
159	159	129 The training program on supported decision-making shall be provided to a supporter or a
160	160	130decision-maker receiving decision-making assistance, and shall include the rights and obligations
161	161	131contained in section 5-508 of chapter 190B. The training shall be in any format accessible to the 8 of 8
162	162	132individuals receiving such training. Such training shall include trainers with disabilities and
163	163	133adults who receive or might receive supported decision-making assistance.
164	164	134 SECTION 4. Section 2 of chapter 71B of the General Laws is hereby amended by
165	165	135inserting at the thereof the following:-
166	166	136 The department of elementary and secondary education shall promulgate regulations
167	167	137requiring school districts and charter schools to be part of the transitional planning process to
168	168	138inform students and families of the availability of supported decision-making as an alternative to
169	169	139guardianship in such cases where adult guardianship is being contemplated.
170	170	140 SECTION 5. Section 3 of chapter 71B of the General Laws is hereby amended by
171	171	141inserting the following at the end thereof:-
172	172	142 For any student for whom adult guardianship is being considered at the Individual
173	173	143Educational Program (IEP) team meeting, the IEP team shall inform the student and family (or
174	174	144guardian if there is a guardian of the minor) at the earliest possible meeting of the availability of
175	175	145supported decision-making as an alternative to guardianship. The IEP team shall assist the child
176	176	146and his or her family or minor guardian in locating resources to assist in establishing a supported
177	177	147decision-making plan if the child and family are interested in supported decision-making. If a
178	178	148supported decision-making agreement is executed, the IEP team shall abide by decisions made
179	179	149by the student pursuant to the supported decision-making agreement.
180	180	150 SECTION 6. This act shall take effect six months from the date of its passage.