Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H3870 Compare Versions

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

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2	2	HOUSE DOCKET, NO. 4268 FILED ON: 4/10/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 3870
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Christine P. Barber
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 establishing a designation of a state protection and advocacy system.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Christine P. Barber34th Middlesex4/10/2023Samantha Montaño15th Suffolk4/10/2023 1 of 8
16	16	HOUSE DOCKET, NO. 4268 FILED ON: 4/10/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 3870
18	18	By Representative Barber of Somerville, a petition (subject to Joint Rule 12) of Christine P.
19	19	Barber and Samantha Montaño for legislation to establish a protection and advocacy system for
20	20	investigating abuse, neglect, and financial exploitation of persons with disabilities occurring and
21	21	advocating for the civil and human rights of such persons. Children, Families and Persons with
22	22	Disabilities.
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 establishing a designation of a state protection and advocacy system.
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 6 of the General Laws, as appearing in the 2020 Official Edition, is
32	32	2hereby amended by inserting after section 221 the following section:
33	33	3 Section 222. (a) There shall be a protection and advocacy system for the purpose of
34	34	4investigating abuse, neglect, and financial exploitation of persons with disabilities occurring in
35	35	5the Commonwealth and advocating for the civil and human rights of such persons. For the
36	36	6purposes of this chapter, the system shall be an independent private nonprofit corporation which
37	37	7has been designated as the protection and advocacy system for the Commonwealth under the
38	38	8Protection and Advocacy under the federal Developmental Disabilities Assistance and Bill of
39	39	9Rights Act of 2000, 42 U.S.C. 15041 et. seq., and the Protection and Advocacy for Individuals
40	40	10with Mental Illness Act. 42 U.S.C. 10801 et. seq. 2 of 8
41	41	11 (b) The protection and advocacy system shall meet all of the requirements of federal law
42	42	12applicable to such systems, including, but not limited to, the requirement that it establish a
43	43	13grievance procedure for clients or prospective clients of the system to ensure that people with
44	44	14disabilities have full access to services of the system. The protection and advocacy system may
45	45	15receive and expend funds to protect and advocate the rights of persons with developmental
46	46	16disabilities, emotional and mental health disabilities, and any other disabilities. In a manner
47	47	17consistent with other statutory responsibilities, the departments, officers, agencies, and
48	48	18institutions of the Commonwealth shall cooperate with the protection and advocacy system in
49	49	19carrying out its duties in order to further the purposes of this act. Notwithstanding any other
50	50	20provision of law, all departments, officers, agencies, and institutions of the Commonwealth may,
51	51	21on the behalf of a person with a developmental disability, emotional and mental health
52	52	22disabilities, or any other disability, request the system to provide protection and advocacy
53	53	23services. The governor may designate an appropriate state official to serve as liaison between
54	54	24the protection and advocacy system and the state departments and agencies that provide services
55	55	25to persons with developmental disabilities, emotional and mental health disabilities, or any other
56	56	26disabilities.
57	57	27 (c) The protection and advocacy system shall have the authority to:
58	58	28 (i) Investigate incidents of abuse and neglect of individuals with developmental
59	59	29disabilities, emotional and mental health disabilities, or any other disabilities if the incidents are
60	60	30reported to the system or if there is probable cause to believe that the incidents occurred; 3 of 8
61	61	31 (ii) Pursue legal, administrative, and other appropriate remedies to ensure the protection
62	62	32of the rights of persons with developmental disabilities, mental health conditions, or any other
63	63	33disabilities;
64	64	34 (iii) Provide information on and referral to programs and services addressing the needs of
65	65	35persons with developmental disabilities, emotional and mental health disabilities, or any other
66	66	36disabilities, including information and training regarding individual rights and the services
67	67	37available from the protection and advocacy system;
68	68	38 (iv) Have immediate access to any individual with a developmental disability, emotional
69	69	39and mental health disabilities, or any other disability, regardless of age, who has requested
70	70	40services or on whose behalf services have been requested from the protection and advocacy
71	71	41system or concerning whom the protection and advocacy system has reasonable cause to believe
72	72	42that abuse, neglect, financial exploitation, or a violation of rights of the individual has occurred;
73	73	43 (v) Have immediate access to any facility, school, jail, hospital, or any other location
74	74	44where any individual with a developmental disability, emotional and mental health disabilities,
75	75	45or any other disability is receiving or has received services, where the protection and advocacy
76	76	46system has received a complaint or where the system has reasonable cause to believe that abuse,
77	77	47neglect, financial exploitation, or a violation of rights of the individual has occurred, in order to:
78	78	48 (A) Monitor compliance with respect to the rights and safety of any person receiving
79	79	49services;
80	80	50 (B) Communicate privately by mail or orally, and where available, by electronic means,
81	81	51with any person receiving services; 4 of 8
82	82	52 (C) Interview any member of the staff of said facility or other location;
83	83	53 (D) Inspect all records relating to persons receiving services, provided that said person, or
84	84	54their guardian, gives written permission;
85	85	55 (E) Have access to policies, rules, and regulations affecting care, rights, or
86	86	56responsibilities of persons receiving services;
87	87	57 (F) Inspect, view, and photograph all areas of the facility or any other locations that are
88	88	58used by persons receiving services, or that are accessible to them, or which otherwise may affect
89	89	59their health and safety;
90	90	60 (G) Take whatever steps are appropriate, including posting notice, to see that persons are
91	91	61made aware of the services of the protection and advocacy system, its purpose, and how it can be
92	92	62contacted. Officials in charge of each facility shall cooperate with the protection and advocacy
93	93	63system in this respect;
94	94	64 (H) Provide information and training on, and referral to programs addressing the needs
95	95	65of, persons with disabilities, and information and training on individual rights and services
96	96	66available from the protection and advocacy system, including, but not limited to, the name,
97	97	67address, and telephone number of the protection and advocacy system;
98	98	68 (vi) Have reasonable unaccompanied access to public and private facilities, programs,
99	99	69and services, and recipients of services therein during normal working hours and visiting hours
100	100	70for other advocacy services. In the case of information and training services, access shall be at
101	101	71times mutually agreeable to the protection and advocacy system and facility management; 5 of 8
102	102	72 (vii) Upon request, and notwithstanding any other provision of law, the designated
103	103	73protection and advocacy system shall be entitled to inspect and copy any records or documents,
104	104	74files, books, charts, or other materials which may further the system's investigation of problems
105	105	75affecting persons with developmental disabilities, emotional and mental health disabilities, or
106	106	76any other disabilities. When required by both state and federal law, any personally identifiable
107	107	77information of said persons with disabilities shall be removed from the records.
108	108	78 (d) Any individual or entity having knowledge of or reasonable cause to suspect that a
109	109	79person with a developmental disability, emotional and mental health disabilities, or any other
110	110	80disabilities, is or has been abused, neglected, or exploited may report those circumstances to the
111	111	81protection and advocacy system.
112	112	82 (e) Records maintained by the protection and advocacy system are the property of the
113	113	83agency, which must protect said records from loss, damage, tampering, or use by unauthorized
114	114	84individuals. The system must:
115	115	85 (i) Except as provided elsewhere in this section, keep confidential all records and
116	116	86information, including information contained in any automated electronic database pertaining to:
117	117	87 (A) Clients, to the same extent as is required under Federal or State laws for a provider of
118	118	88services;
119	119	89 (B) Individuals who have been provided general information or technical assistance on a
120	120	90particular matter;
121	121	91 (C) Identities of individuals who report incidents of abuse or neglect or furnish
122	122	92information that forms the basis for a determination that probable cause exists; 6 of 8
123	123	93 (ii) Obtain written consent from the client, if competent, or from their legal
124	124	94representative, from individuals who have been provided general information or technical
125	125	95assistance on a particular matter, and from individuals who furnish reports or information that
126	126	96forms the basis for a determination of probable cause, before releasing information to individuals
127	127	97not otherwise authorized to receive it.
128	128	98 (f) On a quarterly basis, the Department of Developmental Disabilities, the Department of
129	129	99Mental Health, and the Department of Public Health shall provide the protection and advocacy
130	130	100system all death reports of persons with disabilities who were receiving services of such state
131	131	101agency after a determination of eligibility or were receiving services in a facility or setting run,
132	132	102licensed, or funded by such agency. State agencies shall provide access to death reports more
133	133	103regularly with a specific request by the protection and advocacy system.
134	134	104 (g) Subject to confidentiality and redisclosure provisions, upon request, the protection
135	135	105and advocacy system shall be entitled to receive from the Department of Mental Health lists of
136	136	106all individuals in state operated facilities serving persons with mental health conditions who are
137	137	107clinically determined to be discharge-ready yet remain being held in such facilities.
138	138	108 (h) Nothing in this subpart shall prevent the protection and advocacy system from:
139	139	109 (i) Issuing a public report of the results of an investigation which maintains the
140	140	110confidentiality of the individuals affected or;
141	141	111 (ii) Reporting the results of an investigation which maintains the confidentiality of
142	142	112individual service recipients to responsible investigative or enforcement agencies should an
143	143	113investigation reveal information concerning the facility, its staff, or employees warranting
144	144	114possible sanctions or corrective action. This information may be reported to agencies 7 of 8
145	145	115responsible for facility licensing or accreditation, employee discipline, employee licensing or
146	146	116certification, or criminal prosecution.
147	147	117 (i) No facility or any other location which provides or has provided services to persons
148	148	118with developmental disabilities, emotional and mental health disabilities, or any other
149	149	119disabilities shall retaliate or discriminate against any person submitting a complaint to the
150	150	120protection and advocacy system or cooperating with the system's monitoring, investigation, or
151	151	121advocacy activities.
152	152	122 (j) (i) Prior to instituting any legal action in a federal or state court on behalf of a person
153	153	123with a developmental disability, emotional and mental health disabilities, or any other
154	154	124disabilities, or on its own behalf, the protection and advocacy system shall exhaust in a timely
155	155	125manner all administrative remedies when appropriate. If, in pursuing administrative remedies,
156	156	126the protection and advocacy system determines that any matter with respect to such person will
157	157	127not be resolved within a reasonable time, it may pursue alternative remedies, including the
158	158	128initiation of legal action.
159	159	129 (ii) Subsection (j)(i) of this section shall not apply to any legal action instituted to prevent
160	160	130or eliminate imminent serious harm to a person with a developmental disability, emotional and
161	161	131mental health disabilities, or any other disabilities.
162	162	132 (k) The authority of the protection and advocacy system set forth in this section shall not
163	163	133diminish its authority under federal statutes pertaining to the authority of protection and
164	164	134advocacy systems, or under federal rules and regulations adopted in implementation of those
165	165	135statutes. 8 of 8
166	166	136 SECTION 2: Section 5 of Chapter 19C of the General Laws, as appearing in the 2020
167	167	137Official Edition, is hereby amended by removing subsection (4) and replacing it with the
168	168	138following language:
169	169	139 (4) If there is reasonable cause to believe that a disabled person has died as a result of
170	170	140abuse, immediately report said death to the commission, the general counsel, the attorney
171	171	141general, the district attorney for the county in which such death occurred, the state protection and
172	172	142advocacy system, and to the medical examiner as required by section six of chapter thirty-eight
173	173	143 SECTION 3: Section 72H of Chapter 111 of the General Laws, as appearing in the 2020
174	174	144Official Edition, is hereby amended by removing subsection (5) and replacing it with the
175	175	145following language:
176	176	146 (5) if it has reasonable cause to believe that a patient or resident has died as a result of
177	177	147abuse, mistreatment, or neglect, immediately report such death to the attorney general, the
178	178	148district attorney for the county in which such death occurred, the state protection and advocacy
179	179	149system, and the medical examiner as required by section 3 of chapter 38; and