Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H622 Compare Versions

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

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2	2	HOUSE DOCKET, NO. 881 FILED ON: 1/17/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 622
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Josh S. Cutler and Kathleen R. LaNatra
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 to establish the Office of Elder Advocate.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Josh S. Cutler6th Plymouth1/17/2023Kathleen R. LaNatra12th Plymouth1/17/2023Smitty Pignatelli3rd Berkshire1/24/2023Lindsay N. Sabadosa1st Hampshire1/25/2023James C. Arena-DeRosa8th Middlesex1/28/2023Carmine Lawrence Gentile13th Middlesex1/28/2023Brian M. Ashe2nd Hampden2/1/2023Carol A. Doherty3rd Bristol2/2/2023Paul McMurtry11th Norfolk2/15/2023Mindy Domb3rd Hampshire2/22/2023Vanna Howard17th Middlesex2/27/2023 1 of 13
16	16	HOUSE DOCKET, NO. 881 FILED ON: 1/17/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 622
18	18	By Representatives Cutler of Pembroke and LaNatra of Kingston, a petition (accompanied by
19	19	bill, House, No. 622) of Josh S. Cutler, Kathleen R. LaNatra and others for legislation to
20	20	establish the office of elder advocate. Elder Affairs.
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 to establish the Office of Elder Advocate.
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. Definitions.
30	30	2 As used in this chapter, the following words shall have the following meanings unless the
31	31	3context clearly requires otherwise:
32	32	4 ''Advisory council'', the elder advocate advisory council established in section 4.
33	33	5 'Elder advocate'', the elder advocate appointed under section 3.
34	34	6 ''Critical incident'', (i) a fatality, near fatality or serious bodily or emotional injury of an
35	35	7older adult or person with disabilities who is in the custody of or receiving services from an
36	36	8executive agency or a constituent agency, or private party whose clients or residents in whole or
37	37	9in part of funded with public funds or (ii) circumstances which result in a reasonable belief that
38	38	10an executive agency or a constituent agency failed in its duty to protect an older adult or person 2 of 13
39	39	11with disabilities and, as a result, the older adult or person with disabilities was at imminent risk
40	40	12of, or suffered serious bodily or emotional injury or death.
41	41	13 ''Department'', the department of public health.
42	42	14 ''Executive agency'', a state agency within the office of the governor, including the
43	43	15executive office of elder affairs, the executive office of public safety and security, executive
44	44	16office of health and human services, the executive office of housing, the executive office of
45	45	17transportation and their constituent agencies, the Massachusetts interagency council on housing
46	46	18and homelessness.
47	47	19 ''Office'', the office of the elder advocate.
48	48	20 ''Serious bodily or emotional injury'', an injury which involves a substantial risk of death,
49	49	21extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of
50	50	22the function of a bodily member, organ or mental faculty or emotional distress.
51	51	23 SECTION 2. Office of the Elder Advocate; Duties
52	52	24 There shall be an office of the elder advocate which shall be independent of any
53	53	25supervision or control by any executive agency. The office shall:
54	54	26 (a) ensure that older adults and people with disabilities involved with an executive
55	55	27agency, in particular, adult served by the executive office of health and human services, or
56	56	28executive office of elder affairs, and agencies reporting to said executive offices or private
57	57	29entities that receive public funding, including Medicare and Medicaid reimbursements, receive
58	58	30timely, safe and effective services; 3 of 13
59	59	31 (b) ensure that older adults or people with disabilities placed in the care of the
60	60	32commonwealth or receiving services under the supervision or regulation of an executive agency
61	61	33in any public or private facility shall receive humane and dignified treatment at all times, with
62	62	34full respect for the person's personal dignity, right to privacy, and right to a free and appropriate
63	63	35education in accordance with state and federal law;
64	64	36 (c) examine, on a system-wide basis, the care and services that executive agencies
65	65	37provide older adults or people with disabilities;
66	66	38 (d) advise the public and those at the highest levels of state government about how the
67	67	39commonwealth may improve its services to and for older adults, people with disabilities,
68	68	40caregivers, and their families; and
69	69	41 (e) impose temporary cost share agreements, as necessary pursuant to section 16R of
70	70	42chapter 6A to ensure children's timely access to services.
71	71	43 The office shall act to investigate and ensure that the highest quality of services and
72	72	44supports are provided to safeguard the health, safety and well-being of all older adults and people
73	73	45with disabilities receiving services. The office shall examine systemic issues related to the
74	74	46provision of services to older adults or people with disabilities and provide recommendations to
75	75	47improve the quality of those services in order to give each person the opportunity to live a full
76	76	48and productive life.
77	77	49 SECTION 3. Elder Advocate: Appointment; vacancies, removal
78	78	50 The office of the elder advocate shall be under the direction of the elder advocate. The
79	79	51elder advocate shall be the administrative head of the office and shall devote full-time to the 4 of 13
80	80	52duties of the office. The elder advocate shall be appointed by a majority vote of the attorney
81	81	53general, the state auditor and the governor from a list of 3 nominees submitted by a nominating
82	82	54committee to recommend an elder advocate. The nominating committee shall consist of: the
83	83	55secretary of health and human services; the commissioner of children and families; the
84	84	56commissioner of ; the commissioner of mental health; the executive director of the elder abuse
85	85	57prevention board; a geriatrician experienced in treating victims of elder abuse who shall be
86	86	58designated by the Massachusetts chapter of the American Academy of Geriatrics; an adult
87	87	59psychiatrist who shall be designated by the Massachusetts Psychiatric Society, Inc.; a adult
88	88	60psychologist who shall be designated by The Massachusetts Psychological Association, Inc.; a
89	89	61representative from the Massachusetts Association for Mental Health, Inc.; a representative of an
90	90	62organization that advocates on behalf of older adults and people with disabilities recommended
91	91	63by Dignity Alliance Massachusetts Inc.; an attorney experienced in care and protection cases
92	92	64who shall be designated by the Massachusetts Bar Association; a social worker who shall be
93	93	65designated by the Massachusetts chapter of the National Association of Social Workers, Inc.; a
94	94	66person with experience in elder law system who shall be designated by the chief justice of the
95	95	67superior court department and a representative of organized labor who shall be designated by the
96	96	68president of a collective bargaining unit that represents nursing home or home care workers. The
97	97	69work of the nominating committee shall be coordinated by the executive office of health and
98	98	70human services.
99	99	71 Any person appointed to the position of elder advocate shall be selected without regard to
100	100	72political affiliation and on the basis of integrity and demonstrated ability in aging services, elder
101	101	73law, disability law, auditing, law, management analysis, public administration and investigation 5 of 13
102	102	74or criminal justice administration. The elder advocate may, subject to appropriation, appoint such
103	103	75other personnel as the elder advocate deems necessary for the efficient management of the office.
104	104	76 The elder advocate shall serve for a term of 5 years. In case of a vacancy in the position
105	105	77of the elder advocate, a successor shall be appointed in the same manner for the remainder of the
106	106	78unexpired term. No person shall be appointed as elder advocate for more than 2 full terms.
107	107	79 The elder advocate may be removed from office for cause by a majority vote of the
108	108	80attorney general, the state auditor and the governor. Such cause may include substantial neglect
109	109	81of duty, gross misconduct or conviction of a crime. The cause for removal of the elder advocate
110	110	82shall be stated in writing and shall be sent to the clerks of the senate and house of representatives
111	111	83and to the governor at the time of removal and shall be a public document.
112	112	84 SECTION 4 Elder Advocate Advisory Council; duties and salary
113	113	85 There shall be a 25–member elder advocate advisory council. The advisory council shall
114	114	86consist of the elder advocate, who shall serve as chair, the secretary of health and human
115	115	87services, the secretary of elder affairs, the secretary of public safety and security, the secretary of
116	116	88housing, the commissioner of mental health, the commissioner of developmental services, the
117	117	89commissioner of public health, the commissioner of the Massachusetts rehabilitation
118	118	90commission, the commissioner for the deaf and hard of hearing, the commissioner for the blind,
119	119	91the commissioner of transitional assistance,, the chief justice of the probate and family court
120	120	92department, the executive director of the elder abuse prevention board, and 3 persons appointed
121	121	93by the governor.
122	122	94 The elder advocate shall meet with the advisory council at least annually and shall
123	123	95present to the advisory council the annual goals of the office and its plans for monitoring the 6 of 13
124	124	96work, including the continuing quality improvement, of the elder and disability service agencies
125	125	97and the identification of any critical gaps and issues relating to interagency collaboration. The
126	126	98elder advocate may consult with or request the assistance of members of the advisory council
127	127	99with respect to the duties and responsibilities of the office; provided however, that any request
128	128	100for assistance shall not place requirements on any member of the council to fulfill the request.
129	129	101 The advisory council shall annually set the salary of the elder advocate; provided,
130	130	102however, that such salary shall not exceed 90 per cent of the salary of the chief justice of the
131	131	103supreme judicial court.
132	132	104 SECTION 5. Investigation of critical incidents; coordination with other agencies,
133	133	105complaints
134	134	106 (a) An executive agency shall inform the elder advocate as soon as practicable when a
135	135	107critical incident has occurred. The elder advocate may conduct an investigation of the critical
136	136	108incident or may review an executive agency's investigation of a critical incident. When the elder
137	137	109advocate conducts his own investigation, he shall determine: (1) the factual circumstances
138	138	110surrounding the critical incident; (2) whether an agency's activities or services provided to an
139	139	111older adult or person with disabilities and his family were adequate and appropriate and in
140	140	112accordance with agency polices and state and federal law; and (3) whether the agency's policies,
141	141	113regulations, training or delivery of services or state law can be improved.
142	142	114 (b) Before investigating any critical incident, the elder advocate shall determine whether
143	143	115an executive or law enforcement agency is already conducting an investigation. If a law
144	144	116enforcement agency is conducting an investigation, the elder advocate shall, when appropriate,
145	145	117defer to that agency or may conduct his own investigation. The elder advocate shall coordinate 7 of 13
146	146	118efforts to minimize the impact on the older adult or person with disabilities, family or employees
147	147	119of the agency involved, unless he determines such coordination would impede his investigation.
148	148	120If an executive agency is conducting an investigation, the elder advocate may defer to that
149	149	121investigation or may conduct his own investigation. The elder advocate may coordinate efforts to
150	150	122minimize the impact on the older adult or person with disabilities, family or employees of the
151	151	123agency involved. In every instance, the elder advocate shall notify the head of the relevant
152	152	124agency of his involvement before beginning any investigation.
153	153	125 (c) The elder advocate shall receive complaints relative to the provision of services to
154	154	126older adults or people with disabilities by an executive agency and shall review and monitor the
155	155	127complaints that reasonably cause him to believe that an older adult or person with disabilities
156	156	128may be in need of assistance and to ensure that the complaint is resolved. If the complaint is not
157	157	129resolved by the relevant executive agency within a reasonable period of time in light of the
158	158	130circumstances, if the resolution is determined to be unsatisfactory to the elder advocate, or if the
159	159	131complaint reasonably causes the elder advocate to believe that an older adult or person with
160	160	132disabilities may be in need of immediate assistance, the elder advocate may conduct an
161	161	133investigation and upon completion of the investigation, the elder advocate may provide relevant
162	162	134information in the form of a report to any relevant agencies and request a meeting, if necessary,
163	163	135to review the investigation and accompanying report.
164	164	136 (d) The elder advocate shall receive complaints from adults in the care or with support of
165	165	137the commonwealth and assist such adults in resolving problems and concerns associated with
166	166	138their placement, plans for life-long adult connections and independent living, and decisions
167	167	139regarding custody of persons aged 22 and above, including ensuring that relevant executive
168	168	140agencies have been alerted to the complaint and facilitating intra-agency cooperation, if 8 of 13
169	169	141appropriate. For the purposes of this section, the office shall develop procedures to ensure
170	170	142appropriate responses to the concerns of adults in foster care or guardianship.
171	171	143 (e) The elder advocate shall periodically review, report and make recommendations, as
172	172	144appropriate, with respect to system-wide improvements that may increase the effectiveness of the
173	173	145care and services provided to older adults, people with disabilities, and their families and
174	174	146suggested legislative and regulatory changes including, but not limited to, a review of the
175	175	147programs and procedures established by the department to provide and administer a
176	176	148comprehensive program of services and supports.
177	177	149 (f) The elder advocate shall perform oversight functions to ensure that agencies serving
178	178	150older adults and people with disabilities are fulfilling their obligations in the most effective and
179	179	151efficient manner.
180	180	152 (g) The elder advocate shall undertake activities designed to educate the public regarding
181	181	153the services of the office and of the mission of the executive agencies in providing services to
182	182	154older adults, people with disabilities and their families.
183	183	155 (h) The elder advocate shall be authorized to apply for, and accept on behalf of the
184	184	156commonwealth, federal, local or private grants, bequests, gifts or contributions for the purpose of
185	185	157carrying out the functions of the office.
186	186	158 SECTION 6. Access to Facilities and records, release of information
187	187	159 The elder advocate or his designee shall have access at any and all reasonable times to
188	188	160any facility, residence, program, or portion thereof, that is operated, licensed or funded by an
189	189	161executive agency, and shall have unrestricted access to all electronic information systems 9 of 13
190	190	162records, reports, materials and employees in order to better understand the needs of older adults
191	191	163and people with disabilities in the custody of the commonwealth or who are receiving services
192	192	164from an executive agency. The elder advocate shall have access to relevant records held by the
193	193	165clerk of the trial court and the clerk of the probate and family court, including the right to inspect
194	194	166and copy, without cost. The elder advocate shall be bound by any limitations on the use or
195	195	167release of information imposed by law upon the party furnishing such information, except as
196	196	168provided in subsection (e) of section 12.
197	197	169 SECTION 7. Witnesses, documents, subpoenas
198	198	170 The elder advocate may request the attendance and testimony of witnesses and the
199	199	171production of documents, papers, books, records, reports, reviews, recommendations,
200	200	172correspondence, data and other evidence that the elder advocate reasonably believes is relevant.
201	201	173If a request is denied, the elder advocate shall have the power to issue a subpoena for witnesses
202	202	174and the production of documents and any other data and evidence that the elder advocate
203	203	175reasonably believes is relevant.
204	204	176 If any person to whom a subpoena is issued fails to appear or, having appeared, refuses to
205	205	177give testimony or fails to produce the evidence required, the elder advocate may apply to the
206	206	178Suffolk county superior court to issue an order to compel the testimony and production of
207	207	179documents of any such witnesses. A failure to obey the order may be punished as contempt.
208	208	180 The district attorney may seek injunctive relief in Suffolk county superior court to defer a
209	209	181subpoena issued by the elder advocate.
210	210	182 SECTION 8. Discrimination or retaliation, penalties 10 of 13
211	211	183 No discriminatory or retaliatory action shall be taken against any person who
212	212	184communicates with or provides information to the office. Any person who knowingly or
213	213	185willfully discriminates or retaliates against such a person shall be liable to such person for treble
214	214	186damages, costs and attorney's fees.
215	215	187 SECTION 9. Procedures for performance of duties, rules and regulations
216	216	188 The elder advocate shall develop internal procedures appropriate for the effective
217	217	189performance of his duties.
218	218	190 The elder advocate may, subject to chapter 30A, adopt, amend or repeal such rules and
219	219	191regulations as are deemed necessary to carry out the functions of the office.
220	220	192 SECTION 10. Annual Report
221	221	193 The elder advocate shall report annually to the governor, the president of the senate, the
222	222	194speaker of the house, the senate and the house committees on ways and means, and the chairs of
223	223	195the joint committee on elder affairs, the chairs of the joint committee on children, families and
224	224	196persons with disabilities on the activities of the office, including an analysis of the delivery of
225	225	197service to children, activities undertaken to implement subsection (d) of section 5,
226	226	198recommendations for changes in agency procedures which would enable the commonwealth to
227	227	199better provide services to and for older adults, people with disabilities, and their families and
228	228	200priorities for implementation of those changes to services. The report shall be made public.
229	229	201 SECTION 11.: Examination of systemwide responses to elder abuse and neglect
230	230	202 Section 11. The elder advocate, in consultation with the advisory council, may from time
231	231	203to time, examine systemwide responses to elder abuse and neglect, including related mental 11 of 13
232	232	204health, substance use and domestic violence issues, and shall file a report on any such
233	233	205examination with the governor, the clerks of the senate and house of representatives, the senate
234	234	206and house committees on ways and means, the joint committee on elder affairs, and the joint
235	235	207committee on children, families and persons with disabilities. The elder advocate's examination
236	236	208may include, without limitation, racial disproportionality and disparity, elopements, mandated
237	237	209reporting, screening of elder or handicapped abuse and neglect reports, social worker
238	238	210qualifications and caseloads, law enforcement involvement, health service needs, including
239	239	211behavioral health needs, of older adults and people with disabilities at risk, criminal offender
240	240	212record information reviews, administrative and cost requirements, federal funding for aging and
241	241	213disability purposes and the effectiveness of elder or disability abuse or bullying laws. The elder
242	242	214advocate may seek advice broadly from individuals with expertise in aging or disability welfare
243	243	215in preparing a report under this section.
244	244	216 Section 12: Information and records; confidentiality; subpoena and discovery; public
245	245	217disclosure; investigation of critical incidents
246	246	218 Section 12. The following provisions apply to information and records obtained,
247	247	219reviewed or maintained by the elder advocate:
248	248	220 (a) Notwithstanding the provisions of any general or special law to the contrary, the
249	249	221disclosure of information to the office of the elder advocate pursuant to this chapter shall not be
250	250	222prohibited. Any information considered to be confidential shall be submitted for the elder
251	251	223advocate's review upon the determination of the elder advocate that the review of said
252	252	224information is necessary. The elder advocate shall ensure that no information submitted for his
253	253	225review is disseminated to parties outside the office, except when disclosure may be necessary to 12 of 13
254	254	226enable the elder advocate to perform the elder advocate's duties. Under no circumstances shall
255	255	227the elder advocate or any employee of the office violate the confidentiality provisions set forth in
256	256	228the aforementioned statutes, except as authorized under subsection (e).
257	257	229 (b) Any and all information and records acquired by the elder advocate in the exercise of
258	258	230the office's purpose and duties under this chapter shall be confidential and exempt from
259	259	231disclosure under chapter 66 and clause Twenty-sixth of section 7 of chapter 4.
260	260	232 (c) Information, documents and records of the elder advocate and his office shall not be
261	261	233subject to subpoena, discovery or introduction into evidence in any civil or criminal proceeding;
262	262	234provided, however, that information, documents and records otherwise available from any other
263	263	235source shall not be immune from subpoena, discovery or introduction into evidence through
264	264	236these sources solely because they were presented during the elder advocate's investigation or
265	265	237maintained by the office of the elder advocate.
266	266	238 (d) Statistical compilations of data which do not contain any information that would
267	267	239permit the identification of any person may be disclosed to the public.
268	268	240 (e) The restrictions of this section shall not preclude the elder advocate from sharing with
269	269	241the governor, the attorney general, a district attorney, a secretary, an agency commissioner or
270	270	242other agency personnel, or the chairs of the joint committee on elder affairs or the chairs of the
271	271	243joint committee on children, families and persons with disabilities, the report of, or the results of,
272	272	244a critical incident investigation involving that agency. Any executive or legislative branch
273	273	245employees who receive or read such a document shall be bound by the confidentiality
274	274	246requirements of this section.
275	275	247 Section 13: Personal liability for civil damages 13 of 13
276	276	248 Section 13. No person employed by or contracted by or volunteering for the office shall
277	277	249be subject to suit directly, derivatively or by way of contribution or indemnification for any civil
278	278	250damages under the laws of the commonwealth resulting from any act or omission performed
279	279	251during or in connection with the discharge of his duties within the scope of his employment or
280	280	252appointment, unless such act or failure to act was committed with gross negligence, maliciously,
281	281	253or in bad faith.