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HOUSE DOCKET, NO. 881 FILED ON: 1/17/2023
HOUSE . . . . . . . . . . . . . . . No. 622
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Josh S. Cutler and Kathleen R. LaNatra
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act to establish the Office of Elder Advocate.
_______________
PETITION OF:
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
HOUSE DOCKET, NO. 881 FILED ON: 1/17/2023
HOUSE . . . . . . . . . . . . . . . No. 622
By Representatives Cutler of Pembroke and LaNatra of Kingston, a petition (accompanied by
bill, House, No. 622) of Josh S. Cutler, Kathleen R. LaNatra and others for legislation to
establish the office of elder advocate. Elder Affairs.
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
An Act to establish the Office of Elder Advocate.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. Definitions.
2 As used in this chapter, the following words shall have the following meanings unless the
3context clearly requires otherwise:
4 ''Advisory council'', the elder advocate advisory council established in section 4.
5 'Elder advocate'', the elder advocate appointed under section 3.
6 ''Critical incident'', (i) a fatality, near fatality or serious bodily or emotional injury of an
7older adult or person with disabilities who is in the custody of or receiving services from an
8executive agency or a constituent agency, or private party whose clients or residents in whole or
9in part of funded with public funds or (ii) circumstances which result in a reasonable belief that
10an executive agency or a constituent agency failed in its duty to protect an older adult or person 2 of 13
11with disabilities and, as a result, the older adult or person with disabilities was at imminent risk
12of, or suffered serious bodily or emotional injury or death.
13 ''Department'', the department of public health.
14 ''Executive agency'', a state agency within the office of the governor, including the
15executive office of elder affairs, the executive office of public safety and security, executive
16office of health and human services, the executive office of housing, the executive office of
17transportation and their constituent agencies, the Massachusetts interagency council on housing
18and homelessness.
19 ''Office'', the office of the elder advocate.
20 ''Serious bodily or emotional injury'', an injury which involves a substantial risk of death,
21extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of
22the function of a bodily member, organ or mental faculty or emotional distress.
23 SECTION 2. Office of the Elder Advocate; Duties
24 There shall be an office of the elder advocate which shall be independent of any
25supervision or control by any executive agency. The office shall:
26 (a) ensure that older adults and people with disabilities involved with an executive
27agency, in particular, adult served by the executive office of health and human services, or
28executive office of elder affairs, and agencies reporting to said executive offices or private
29entities that receive public funding, including Medicare and Medicaid reimbursements, receive
30timely, safe and effective services; 3 of 13
31 (b) ensure that older adults or people with disabilities placed in the care of the
32commonwealth or receiving services under the supervision or regulation of an executive agency
33in any public or private facility shall receive humane and dignified treatment at all times, with
34full respect for the person's personal dignity, right to privacy, and right to a free and appropriate
35education in accordance with state and federal law;
36 (c) examine, on a system-wide basis, the care and services that executive agencies
37provide older adults or people with disabilities;
38 (d) advise the public and those at the highest levels of state government about how the
39commonwealth may improve its services to and for older adults, people with disabilities,
40caregivers, and their families; and
41 (e) impose temporary cost share agreements, as necessary pursuant to section 16R of
42chapter 6A to ensure children's timely access to services.
43 The office shall act to investigate and ensure that the highest quality of services and
44supports are provided to safeguard the health, safety and well-being of all older adults and people
45with disabilities receiving services. The office shall examine systemic issues related to the
46provision of services to older adults or people with disabilities and provide recommendations to
47improve the quality of those services in order to give each person the opportunity to live a full
48and productive life.
49 SECTION 3. Elder Advocate: Appointment; vacancies, removal
50 The office of the elder advocate shall be under the direction of the elder advocate. The
51elder advocate shall be the administrative head of the office and shall devote full-time to the 4 of 13
52duties of the office. The elder advocate shall be appointed by a majority vote of the attorney
53general, the state auditor and the governor from a list of 3 nominees submitted by a nominating
54committee to recommend an elder advocate. The nominating committee shall consist of: the
55secretary of health and human services; the commissioner of children and families; the
56commissioner of ; the commissioner of mental health; the executive director of the elder abuse
57prevention board; a geriatrician experienced in treating victims of elder abuse who shall be
58designated by the Massachusetts chapter of the American Academy of Geriatrics; an adult
59psychiatrist who shall be designated by the Massachusetts Psychiatric Society, Inc.; a adult
60psychologist who shall be designated by The Massachusetts Psychological Association, Inc.; a
61representative from the Massachusetts Association for Mental Health, Inc.; a representative of an
62organization that advocates on behalf of older adults and people with disabilities recommended
63by Dignity Alliance Massachusetts Inc.; an attorney experienced in care and protection cases
64who shall be designated by the Massachusetts Bar Association; a social worker who shall be
65designated by the Massachusetts chapter of the National Association of Social Workers, Inc.; a
66person with experience in elder law system who shall be designated by the chief justice of the
67superior court department and a representative of organized labor who shall be designated by the
68president of a collective bargaining unit that represents nursing home or home care workers. The
69work of the nominating committee shall be coordinated by the executive office of health and
70human services.
71 Any person appointed to the position of elder advocate shall be selected without regard to
72political affiliation and on the basis of integrity and demonstrated ability in aging services, elder
73law, disability law, auditing, law, management analysis, public administration and investigation 5 of 13
74or criminal justice administration. The elder advocate may, subject to appropriation, appoint such
75other personnel as the elder advocate deems necessary for the efficient management of the office.
76 The elder advocate shall serve for a term of 5 years. In case of a vacancy in the position
77of the elder advocate, a successor shall be appointed in the same manner for the remainder of the
78unexpired term. No person shall be appointed as elder advocate for more than 2 full terms.
79 The elder advocate may be removed from office for cause by a majority vote of the
80attorney general, the state auditor and the governor. Such cause may include substantial neglect
81of duty, gross misconduct or conviction of a crime. The cause for removal of the elder advocate
82shall be stated in writing and shall be sent to the clerks of the senate and house of representatives
83and to the governor at the time of removal and shall be a public document.
84 SECTION 4 Elder Advocate Advisory Council; duties and salary
85 There shall be a 25–member elder advocate advisory council. The advisory council shall
86consist of the elder advocate, who shall serve as chair, the secretary of health and human
87services, the secretary of elder affairs, the secretary of public safety and security, the secretary of
88housing, the commissioner of mental health, the commissioner of developmental services, the
89commissioner of public health, the commissioner of the Massachusetts rehabilitation
90commission, the commissioner for the deaf and hard of hearing, the commissioner for the blind,
91the commissioner of transitional assistance,, the chief justice of the probate and family court
92department, the executive director of the elder abuse prevention board, and 3 persons appointed
93by the governor.
94 The elder advocate shall meet with the advisory council at least annually and shall
95present to the advisory council the annual goals of the office and its plans for monitoring the 6 of 13
96work, including the continuing quality improvement, of the elder and disability service agencies
97and the identification of any critical gaps and issues relating to interagency collaboration. The
98elder advocate may consult with or request the assistance of members of the advisory council
99with respect to the duties and responsibilities of the office; provided however, that any request
100for assistance shall not place requirements on any member of the council to fulfill the request.
101 The advisory council shall annually set the salary of the elder advocate; provided,
102however, that such salary shall not exceed 90 per cent of the salary of the chief justice of the
103supreme judicial court.
104 SECTION 5. Investigation of critical incidents; coordination with other agencies,
105complaints
106 (a) An executive agency shall inform the elder advocate as soon as practicable when a
107critical incident has occurred. The elder advocate may conduct an investigation of the critical
108incident or may review an executive agency's investigation of a critical incident. When the elder
109advocate conducts his own investigation, he shall determine: (1) the factual circumstances
110surrounding the critical incident; (2) whether an agency's activities or services provided to an
111older adult or person with disabilities and his family were adequate and appropriate and in
112accordance with agency polices and state and federal law; and (3) whether the agency's policies,
113regulations, training or delivery of services or state law can be improved.
114 (b) Before investigating any critical incident, the elder advocate shall determine whether
115an executive or law enforcement agency is already conducting an investigation. If a law
116enforcement agency is conducting an investigation, the elder advocate shall, when appropriate,
117defer to that agency or may conduct his own investigation. The elder advocate shall coordinate 7 of 13
118efforts to minimize the impact on the older adult or person with disabilities, family or employees
119of the agency involved, unless he determines such coordination would impede his investigation.
120If an executive agency is conducting an investigation, the elder advocate may defer to that
121investigation or may conduct his own investigation. The elder advocate may coordinate efforts to
122minimize the impact on the older adult or person with disabilities, family or employees of the
123agency involved. In every instance, the elder advocate shall notify the head of the relevant
124agency of his involvement before beginning any investigation.
125 (c) The elder advocate shall receive complaints relative to the provision of services to
126older adults or people with disabilities by an executive agency and shall review and monitor the
127complaints that reasonably cause him to believe that an older adult or person with disabilities
128may be in need of assistance and to ensure that the complaint is resolved. If the complaint is not
129resolved by the relevant executive agency within a reasonable period of time in light of the
130circumstances, if the resolution is determined to be unsatisfactory to the elder advocate, or if the
131complaint reasonably causes the elder advocate to believe that an older adult or person with
132disabilities may be in need of immediate assistance, the elder advocate may conduct an
133investigation and upon completion of the investigation, the elder advocate may provide relevant
134information in the form of a report to any relevant agencies and request a meeting, if necessary,
135to review the investigation and accompanying report.
136 (d) The elder advocate shall receive complaints from adults in the care or with support of
137the commonwealth and assist such adults in resolving problems and concerns associated with
138their placement, plans for life-long adult connections and independent living, and decisions
139regarding custody of persons aged 22 and above, including ensuring that relevant executive
140agencies have been alerted to the complaint and facilitating intra-agency cooperation, if 8 of 13
141appropriate. For the purposes of this section, the office shall develop procedures to ensure
142appropriate responses to the concerns of adults in foster care or guardianship.
143 (e) The elder advocate shall periodically review, report and make recommendations, as
144appropriate, with respect to system-wide improvements that may increase the effectiveness of the
145care and services provided to older adults, people with disabilities, and their families and
146suggested legislative and regulatory changes including, but not limited to, a review of the
147programs and procedures established by the department to provide and administer a
148comprehensive program of services and supports.
149 (f) The elder advocate shall perform oversight functions to ensure that agencies serving
150older adults and people with disabilities are fulfilling their obligations in the most effective and
151efficient manner.
152 (g) The elder advocate shall undertake activities designed to educate the public regarding
153the services of the office and of the mission of the executive agencies in providing services to
154older adults, people with disabilities and their families.
155 (h) The elder advocate shall be authorized to apply for, and accept on behalf of the
156commonwealth, federal, local or private grants, bequests, gifts or contributions for the purpose of
157carrying out the functions of the office.
158 SECTION 6. Access to Facilities and records, release of information
159 The elder advocate or his designee shall have access at any and all reasonable times to
160any facility, residence, program, or portion thereof, that is operated, licensed or funded by an
161executive agency, and shall have unrestricted access to all electronic information systems 9 of 13
162records, reports, materials and employees in order to better understand the needs of older adults
163and people with disabilities in the custody of the commonwealth or who are receiving services
164from an executive agency. The elder advocate shall have access to relevant records held by the
165clerk of the trial court and the clerk of the probate and family court, including the right to inspect
166and copy, without cost. The elder advocate shall be bound by any limitations on the use or
167release of information imposed by law upon the party furnishing such information, except as
168provided in subsection (e) of section 12.
169 SECTION 7. Witnesses, documents, subpoenas
170 The elder advocate may request the attendance and testimony of witnesses and the
171production of documents, papers, books, records, reports, reviews, recommendations,
172correspondence, data and other evidence that the elder advocate reasonably believes is relevant.
173If a request is denied, the elder advocate shall have the power to issue a subpoena for witnesses
174and the production of documents and any other data and evidence that the elder advocate
175reasonably believes is relevant.
176 If any person to whom a subpoena is issued fails to appear or, having appeared, refuses to
177give testimony or fails to produce the evidence required, the elder advocate may apply to the
178Suffolk county superior court to issue an order to compel the testimony and production of
179documents of any such witnesses. A failure to obey the order may be punished as contempt.
180 The district attorney may seek injunctive relief in Suffolk county superior court to defer a
181subpoena issued by the elder advocate.
182 SECTION 8. Discrimination or retaliation, penalties 10 of 13
183 No discriminatory or retaliatory action shall be taken against any person who
184communicates with or provides information to the office. Any person who knowingly or
185willfully discriminates or retaliates against such a person shall be liable to such person for treble
186damages, costs and attorney's fees.
187 SECTION 9. Procedures for performance of duties, rules and regulations
188 The elder advocate shall develop internal procedures appropriate for the effective
189performance of his duties.
190 The elder advocate may, subject to chapter 30A, adopt, amend or repeal such rules and
191regulations as are deemed necessary to carry out the functions of the office.
192 SECTION 10. Annual Report
193 The elder advocate shall report annually to the governor, the president of the senate, the
194speaker of the house, the senate and the house committees on ways and means, and the chairs of
195the joint committee on elder affairs, the chairs of the joint committee on children, families and
196persons with disabilities on the activities of the office, including an analysis of the delivery of
197service to children, activities undertaken to implement subsection (d) of section 5,
198recommendations for changes in agency procedures which would enable the commonwealth to
199better provide services to and for older adults, people with disabilities, and their families and
200priorities for implementation of those changes to services. The report shall be made public.
201 SECTION 11.: Examination of systemwide responses to elder abuse and neglect
202 Section 11. The elder advocate, in consultation with the advisory council, may from time
203to time, examine systemwide responses to elder abuse and neglect, including related mental 11 of 13
204health, substance use and domestic violence issues, and shall file a report on any such
205examination with the governor, the clerks of the senate and house of representatives, the senate
206and house committees on ways and means, the joint committee on elder affairs, and the joint
207committee on children, families and persons with disabilities. The elder advocate's examination
208may include, without limitation, racial disproportionality and disparity, elopements, mandated
209reporting, screening of elder or handicapped abuse and neglect reports, social worker
210qualifications and caseloads, law enforcement involvement, health service needs, including
211behavioral health needs, of older adults and people with disabilities at risk, criminal offender
212record information reviews, administrative and cost requirements, federal funding for aging and
213disability purposes and the effectiveness of elder or disability abuse or bullying laws. The elder
214advocate may seek advice broadly from individuals with expertise in aging or disability welfare
215in preparing a report under this section.
216 Section 12: Information and records; confidentiality; subpoena and discovery; public
217disclosure; investigation of critical incidents
218 Section 12. The following provisions apply to information and records obtained,
219reviewed or maintained by the elder advocate:
220 (a) Notwithstanding the provisions of any general or special law to the contrary, the
221disclosure of information to the office of the elder advocate pursuant to this chapter shall not be
222prohibited. Any information considered to be confidential shall be submitted for the elder
223advocate's review upon the determination of the elder advocate that the review of said
224information is necessary. The elder advocate shall ensure that no information submitted for his
225review is disseminated to parties outside the office, except when disclosure may be necessary to 12 of 13
226enable the elder advocate to perform the elder advocate's duties. Under no circumstances shall
227the elder advocate or any employee of the office violate the confidentiality provisions set forth in
228the aforementioned statutes, except as authorized under subsection (e).
229 (b) Any and all information and records acquired by the elder advocate in the exercise of
230the office's purpose and duties under this chapter shall be confidential and exempt from
231disclosure under chapter 66 and clause Twenty-sixth of section 7 of chapter 4.
232 (c) Information, documents and records of the elder advocate and his office shall not be
233subject to subpoena, discovery or introduction into evidence in any civil or criminal proceeding;
234provided, however, that information, documents and records otherwise available from any other
235source shall not be immune from subpoena, discovery or introduction into evidence through
236these sources solely because they were presented during the elder advocate's investigation or
237maintained by the office of the elder advocate.
238 (d) Statistical compilations of data which do not contain any information that would
239permit the identification of any person may be disclosed to the public.
240 (e) The restrictions of this section shall not preclude the elder advocate from sharing with
241the governor, the attorney general, a district attorney, a secretary, an agency commissioner or
242other agency personnel, or the chairs of the joint committee on elder affairs or the chairs of the
243joint committee on children, families and persons with disabilities, the report of, or the results of,
244a critical incident investigation involving that agency. Any executive or legislative branch
245employees who receive or read such a document shall be bound by the confidentiality
246requirements of this section.
247 Section 13: Personal liability for civil damages 13 of 13
248 Section 13. No person employed by or contracted by or volunteering for the office shall
249be subject to suit directly, derivatively or by way of contribution or indemnification for any civil
250damages under the laws of the commonwealth resulting from any act or omission performed
251during or in connection with the discharge of his duties within the scope of his employment or
252appointment, unless such act or failure to act was committed with gross negligence, maliciously,
253or in bad faith.