Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S2434 Compare Versions

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

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2	2	SENATE DOCKET, NO. 2563 FILED ON: 4/10/2023
3	3	SENATE . . . . . . . . . . . . . . No. 2434
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	James B. Eldridge
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 :James B. EldridgeMiddlesex and Worcester 1 of 8
16	16	SENATE DOCKET, NO. 2563 FILED ON: 4/10/2023
17	17	SENATE . . . . . . . . . . . . . . No. 2434
18	18	By Mr. Eldridge, a petition (accompanied by bill, Senate, No. 2434) (subject to Joint Rule 12) of
19	19	James B. Eldridge for legislation to establish a designation of a state protection and advocacy
20	20	system. 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 establishing a designation of a state protection and advocacy system.
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 6 of the General Laws, as appearing in the 2020 Official Edition, is
30	30	2hereby amended by inserting after section 221 the following section:
31	31	3 Section 222. (a) There shall be a protection and advocacy system for the purpose of
32	32	4investigating abuse, neglect, and financial exploitation of persons with disabilities occurring in
33	33	5the Commonwealth and advocating for the civil and human rights of such persons. For the
34	34	6purposes of this chapter, the system shall be an independent private nonprofit corporation which
35	35	7has been designated as the protection and advocacy system for the commonwealth under the
36	36	8Protection and Advocacy under the federal Developmental Disabilities Assistance and Bill of
37	37	9Rights Act of 2000, 42 U.S.C. 15041 et. seq., and the Protection and Advocacy for Individuals
38	38	10with Mental Illness Act. 42 U.S.C. 10801 et. seq.
39	39	11 (b) The protection and advocacy system shall meet all of the requirements of federal law
40	40	12applicable to such systems, including, but not limited to, the requirement that it establish a 2 of 8
41	41	13grievance procedure for clients or prospective clients of the system to ensure that people with
42	42	14disabilities have full access to services of the system. The protection and advocacy system may
43	43	15receive and expend funds to protect and advocate the rights of persons with developmental
44	44	16disabilities, emotional and mental health disabilities, and any other disabilities. In a manner
45	45	17consistent with other statutory responsibilities, the departments, officers, agencies, and
46	46	18institutions of the Commonwealth shall cooperate with the protection and advocacy system in
47	47	19carrying out its duties in order to further the purposes of this act. Notwithstanding any other
48	48	20provision of law, all departments, officers, agencies, and institutions of the Commonwealth may,
49	49	21on the behalf of a person with a developmental disability, emotional and mental health
50	50	22disabilities, or any other disability, request the system to provide protection and advocacy
51	51	23services. The governor may designate an appropriate state official to serve as liaison between the
52	52	24protection and advocacy system and the state departments and agencies that provide services to
53	53	25persons with developmental disabilities, emotional and mental health disabilities, or any other
54	54	26disabilities.
55	55	27 (c) The protection and advocacy system shall have the authority to:
56	56	28 (i) Investigate incidents of abuse and neglect of individuals with developmental
57	57	29disabilities, emotional and mental health disabilities, or any other disabilities if the incidents are
58	58	30reported to the system or if there is probable cause to believe that the incidents occurred;
59	59	31 (ii) Pursue legal, administrative, and other appropriate remedies to ensure the protection
60	60	32of the rights of persons with developmental disabilities, mental health conditions, or any other
61	61	33disabilities; 3 of 8
62	62	34 (iii) Provide information on and referral to programs and services addressing the needs of
63	63	35persons with developmental disabilities, emotional and mental health disabilities, or any other
64	64	36disabilities, including information and training regarding individual rights and the services
65	65	37available from the protection and advocacy system;
66	66	38 (iv) Have immediate access to any individual with a developmental disability, emotional
67	67	39and mental health disabilities, or any other disability, regardless of age, who has requested
68	68	40services or on whose behalf services have been requested from the protection and advocacy
69	69	41system or concerning whom the protection and advocacy system has reasonable cause to believe
70	70	42that abuse, neglect, financial exploitation, or a violation of rights of the individual has occurred;
71	71	43 (v) Have immediate access to any facility, school, jail, hospital, or any other location
72	72	44where any individual with a developmental disability, emotional and mental health disabilities,
73	73	45or any other disability is receiving or has received services, where the protection and advocacy
74	74	46system has received a complaint or where the system has reasonable cause to believe that abuse,
75	75	47neglect, financial exploitation, or a violation of rights of the individual has occurred, in order to:
76	76	48 (A) Monitor compliance with respect to the rights and safety of any person receiving
77	77	49services;
78	78	50 (B) Communicate privately by mail or orally, and where available, by electronic means,
79	79	51with any person receiving services;
80	80	52 (C) Interview any member of the staff of said facility or other location;
81	81	53 (D) Inspect all records relating to persons receiving services, provided that said person, or
82	82	54their guardian, gives written permission; 4 of 8
83	83	55 (E) Have access to policies, rules, and regulations affecting care, rights, or
84	84	56responsibilities of persons receiving services;
85	85	57 (F) Inspect, view, and photograph all areas of the facility or any other locations that are
86	86	58used by persons receiving services, or that are accessible to them, or which otherwise may affect
87	87	59their health and safety;
88	88	60 (G) Take whatever steps are appropriate, including posting notice, to see that persons are
89	89	61made aware of the services of the protection and advocacy system, its purpose, and how it can be
90	90	62contacted. Officials in charge of each facility shall cooperate with the protection and advocacy
91	91	63system in this respect;
92	92	64 (H) Provide information and training on, and referral to programs addressing the needs
93	93	65of, persons with disabilities, and information and training on individual rights and services
94	94	66available from the protection and advocacy system, including, but not limited to, the name,
95	95	67address, and telephone number of the protection and advocacy system;
96	96	68 (I) Have reasonable unaccompanied access to public and private facilities, programs, and
97	97	69services, and recipients of services therein during normal working hours and visiting hours for
98	98	70other advocacy services. In the case of information and training services, access shall be at times
99	99	71mutually agreeable to the protection and advocacy system and facility management;
100	100	72 (J) Upon request, and notwithstanding any other provision of law, the designated
101	101	73protection and advocacy system shall be entitled to inspect and copy any records or documents,
102	102	74files, books, charts, or other materials which may further the system's investigation of problems
103	103	75affecting persons with developmental disabilities, emotional and mental health disabilities, or 5 of 8
104	104	76any other disabilities. When required by both state and federal law, any personally identifiable
105	105	77information of said persons with disabilities shall be removed from the records.
106	106	78 (d) Any individual or entity having knowledge of or reasonable cause to suspect that a
107	107	79person with a developmental disability, emotional and mental health disabilities, or any other
108	108	80disabilities, is or has been abused, neglected, or exploited may report those circumstances to the
109	109	81protection and advocacy system.
110	110	82 (e) Records maintained by the protection and advocacy system are the property of the
111	111	83agency, which must protect said records from loss, damage, tampering, or use by unauthorized
112	112	84individuals. The system must:
113	113	85 (i) Except as provided elsewhere in this section, keep confidential all records and
114	114	86information, including information contained in any automated electronic database pertaining to:
115	115	87 (A) Clients, to the same extent as is required under Federal or State laws for a provider of
116	116	88services;
117	117	89 (B) Individuals who have been provided general information or technical assistance on a
118	118	90particular matter;
119	119	91 (C) Identities of individuals who report incidents of abuse or neglect or furnish
120	120	92information that forms the basis for a determination that probable cause exists;
121	121	93 (ii) Obtain written consent from the client, if competent, or from their legal
122	122	94representative, from individuals who have been provided general information or technical
123	123	95assistance on a particular matter, and from individuals who furnish reports or information that 6 of 8
124	124	96forms the basis for a determination of probable cause, before releasing information to individuals
125	125	97not otherwise authorized to receive it.
126	126	98 (f) On a quarterly basis, the Department of Developmental Disabilities, the Department of
127	127	99Mental Health, and the Department of Public Health shall provide the protection and advocacy
128	128	100system all death reports of persons with disabilities who were receiving services of such state
129	129	101agency after a determination of eligibility or were receiving services in a facility or setting run,
130	130	102licensed, or funded by such agency. State agencies shall provide access to death reports more
131	131	103regularly with a specific request by the protection and advocacy system.
132	132	104 (g) Subject to confidentiality and redisclosure provisions, upon request, the protection
133	133	105and advocacy system shall be entitled to receive from the Department of Mental Health lists of
134	134	106all individuals in state operated facilities serving persons with mental health conditions who are
135	135	107clinically determined to be discharge-ready yet remain being held in such facilities.
136	136	108 (h) Nothing in this subpart shall prevent the protection and advocacy system from:
137	137	109 (i) Issuing a public report of the results of an investigation which maintains the
138	138	110confidentiality of the individuals affected or;
139	139	111 (ii) Reporting the results of an investigation which maintains the confidentiality of
140	140	112individual service recipients to responsible investigative or enforcement agencies should an
141	141	113investigation reveal information concerning the facility, its staff, or employees warranting
142	142	114possible sanctions or corrective action. This information may be reported to agencies responsible
143	143	115for facility licensing or accreditation, employee discipline, employee licensing or certification, or
144	144	116criminal prosecution. 7 of 8
145	145	117 (i) No facility or any other location which provides or has provided services to persons
146	146	118with developmental disabilities, emotional and mental health disabilities, or any other disabilities
147	147	119shall retaliate or discriminate against any person submitting a complaint to the protection and
148	148	120advocacy system or cooperating with the system's monitoring, investigation, or advocacy
149	149	121activities.
150	150	122 (j) (i) Prior to instituting any legal action in a federal or state court on behalf of a person
151	151	123with a developmental disability, emotional and mental health disabilities, or any other
152	152	124disabilities, or on its own behalf, the protection and advocacy system shall exhaust in a timely
153	153	125manner all administrative remedies when appropriate. If, in pursuing administrative remedies,
154	154	126the protection and advocacy system determines that any matter with respect to such person will
155	155	127not be resolved within a reasonable time, it may pursue alternative remedies, including the
156	156	128initiation of legal action.
157	157	129 (ii) Subsection (j)(i) of this section shall not apply to any legal action instituted to prevent
158	158	130or eliminate imminent serious harm to a person with a developmental disability, emotional and
159	159	131mental health disabilities, or any other disabilities.
160	160	132 (k) The authority of the protection and advocacy system set forth in this section shall not
161	161	133diminish its authority under federal statutes pertaining to the authority of protection and
162	162	134advocacy systems, or under federal rules and regulations adopted in implementation of those
163	163	135statutes.
164	164	136 SECTION 2. Section 5 of Chapter 19C of the General Laws, as appearing in the 2020
165	165	137Official Edition, is hereby amended by removing subsection (4) and replacing it with the
166	166	138following language: 8 of 8
167	167	139 (4) If there is reasonable cause to believe that a disabled person has died as a result of
168	168	140abuse, immediately report said death to the commission, the general counsel, the attorney
169	169	141general, the district attorney for the county in which such death occurred, the state protection and
170	170	142advocacy system, and to the medical examiner as required by section six of chapter thirty-eight
171	171	143 SECTION 3. Section 72H of Chapter 111 of the General Laws, as appearing in the 2020
172	172	144Official Edition, is hereby amended by removing subsection (5) and replacing it with the
173	173	145following language:
174	174	146 (5) if it has reasonable cause to believe that a patient or resident has died as a result of
175	175	147abuse, mistreatment, or neglect, immediately report such death to the attorney general, the
176	176	148district attorney for the county in which such death occurred, the state protection and advocacy
177	177	149system, and the medical examiner as required by section 3 of chapter 38; and