Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S366 Compare Versions

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

Old	New	Differences
1	1	1 of 1
2	2	SENATE DOCKET, NO. 133 FILED ON: 1/11/2023
3	3	SENATE . . . . . . . . . . . . . . No. 366
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 protecting vulnerable elders from abuse.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :James B. EldridgeMiddlesex and Worcester 1 of 14
16	16	SENATE DOCKET, NO. 133 FILED ON: 1/11/2023
17	17	SENATE . . . . . . . . . . . . . . No. 366
18	18	By Mr. Eldridge, a petition (accompanied by bill, Senate, No. 366) of James B. Eldridge for
19	19	legislation to protect vulnerable elders from abuse. Elder Affairs.
20	20	The Commonwealth of Massachusetts
21	21	_______________
22	22	In the One Hundred and Ninety-Third General Court
23	23	(2023-2024)
24	24	_______________
25	25	An Act protecting vulnerable elders from abuse.
26	26	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
27	27	of the same, as follows:
28	28	1 SECTION 1. Section 4 of chapter 19A of the General Laws, as appearing in the 2020
29	29	2Official Edition, is hereby amended by striking out the first paragraph and inserting in place
30	30	3thereof the following paragraph:-
31	31	4 The department shall be the principal agency of the commonwealth to mobilize the
32	32	5human, physical, and financial resources available to plan, develop, and implement innovative
33	33	6programs to insure the dignity and independence of all elderly persons in the commonwealth,
34	34	7including the planning, development, and implementation of a home care program for the elderly
35	35	8in the communities of the commonwealth.
36	36	9 SECTION 2. Section 14 of said chapter 19A, as so appearing, is hereby amended by
37	37	10striking out the second paragraph, and inserting in place thereof the following paragraphs:-
38	38	11 “Abuse”, (a) an act or omission which results in serious physical or emotional injury to
39	39	12an elderly person or financial exploitation of an elderly person; (b) the failure, inability or 2 of 14
40	40	13resistance of a caretaker to provide for the elderly person one or more of the necessities essential
41	41	14for physical and emotional well-being without which the elderly person’s safety would be
42	42	15compromised; or (c) the failure, inability, or resistance of an elderly person to provide for
43	43	16themself one or more of the necessities essential for physical and emotional well-being without
44	44	17which the elderly person’s safety would be compromised. No person shall be considered to be
45	45	18abused or neglected for the sole reason that such person is being furnished or relies upon
46	46	19treatment in accordance with the tenets and teachings of a church or religious denomination by a
47	47	20duly accredited practitioner thereof. No elderly person residing in a prison or house of correction
48	48	21shall be considered to be abused or neglected for the sole reason that a staff member, contractor,
49	49	22or volunteer uses physical contact with the person which harms that person, if: (a) the physical
50	50	23contact with the elderly person occurs in the course of carrying out the staff member, contractor,
51	51	24or volunteer’s official duties performed in accordance with the regulations contained at 103
52	52	25C.M.R.; and (c) both the type of physical contact involved and the amount of force used are
53	53	26necessary in order to carry out the staff member, contractor, or volunteer’s official duties.
54	54	27 Physical contact with an elderly person residing in a prison or house of correction which
55	55	28harms that elderly person, and which occurs for the purpose of retaliating against that elderly
56	56	29person, shall constitute abuse.
57	57	30 SECTION 3. Said section 14 of said chapter 19A, as so appearing, is hereby further
58	58	31amended by striking out the third paragraph, and inserting in place thereof the following
59	59	32paragraph:-
60	60	33 “Caretaker”, the person or agency responsible for the care of an elderly person, which
61	61	34responsibility may arise: (a) as the result of a family relationship; (b) by a voluntary or 3 of 14
62	62	35contractual duty undertaken on behalf of an elderly person, or (b) by a fiduciary duty imposed by
63	63	36law. Caretakers shall include any person or agency responsible for an elderly person’s health or
64	64	37welfare in any custodial or residential facility unless that facility is licensed under sections 51,
65	65	3857D or 71 of chapter 111. A person or agency responsible for the health or welfare of an elderly
66	66	39person who has been involuntarily committed under chapter 123 shall be a caretaker, even if the
67	67	40facility in which the elder resides is licensed under sections 51, 57D, or 71 of chapter 111.
68	68	41 SECTION 4. Said section 14 of said chapter 19A, as so appearing, is hereby further
69	69	42amended by adding the following paragraph:-
70	70	43 “State agency”, any agency of the commonwealth, including town, city, county, and other
71	71	44municipal government agencies, that provides services or treatment to elderly persons, including
72	72	45private agencies providing such services or treatment pursuant to a contract or agreement with an
73	73	46agency of the commonwealth.
74	74	47 SECTION 5. Section 15 of said chapter 19A, as so appearing, is hereby amended by
75	75	48striking out subsections (d), (e), and (f) and inserting in the place thereof the following
76	76	49subsections:-
77	77	50 (d) No person required to report pursuant to the provisions of subsection (a) shall be
78	78	51liable in any civil or criminal action by reason of such report; provided, however, that such
79	79	52person did not perpetrate, inflict or cause said abuse. No other person making such a report
80	80	53pursuant to the provisions of subsection (b) or (c) shall be liable in any civil or criminal action by
81	81	54reason of such report if it was made in good faith; provided, however, that such person did not
82	82	55perpetrate, inflict or cause said abuse. Any person making a report under subsection (a), (b) or 4 of 14
83	83	56(c) who, in the determination of the department or the district attorney may have perpetrated,
84	84	57inflicted or caused said abuse may be liable in a civil or criminal action by reason of such report.
85	85	58 (e) No person, employer, or agency may discharge, demote, transfer, reduce pay, benefits
86	86	59or work privileges, prepare a negative work performance evaluation, or in any manner
87	87	60discriminate against or thereafter take any other retaliatory action against any employee, client or
88	88	61other person for filing a report with the department, testifying in any department proceeding or
89	89	62providing information to the department or their designee in the course of an investigation of
90	90	63alleged abuse of an elderly person. Any person who takes such prohibited action against an
91	91	64employee, client or other person may be liable to that employee, client or other person for treble
92	92	65damages, costs and attorney's fees. If the party alleged to have retaliated under this section was a
93	93	66state agency, sovereign immunity shall not be a defense to the action. A violation of an
94	94	67employee's rights under this section shall constitute a prohibited retaliatory action under
95	95	68subsection (b) of section 185 of chapter 149 if the employee is an employee for purposes of said
96	96	69section 185. A person who willfully files a false report of abuse with the department or willfully
97	97	70testifies falsely or willfully provides the department or any designated investigating agency with
98	98	71false information in the course of an investigation or any other department proceeding shall not
99	99	72be afforded the protections of this subsection.
100	100	73 (f) Reports made pursuant to subsections (a) and (b) shall contain the name, address
101	101	74where the elderly person may be contacted, and approximate age of the elderly person who is the
102	102	75subject of the report, information regarding the nature and extent of the abuse, the name of the
103	103	76person's caretaker, if known, any medical treatment being received or immediately required, if
104	104	77known, any other information the reporter believes to be relevant to the investigation, and the
105	105	78name and address of the reporter and where said reporter may be contacted, if the reporter wishes 5 of 14
106	106	79to provide said information. The department shall publicize the provisions of this section and the
107	107	80process by which reports of abuse shall be made.
108	108	81 SECTION 6. Said section 15 of said chapter 19A, as so appearing, is hereby amended by
109	109	82adding the following subsection:-
110	110	83 (g) Any privilege established by sections one hundred and thirty-five A and one hundred
111	111	84and thirty-five B of chapter one hundred and twelve or section twenty B of chapter two hundred
112	112	85and thirty-three relating to the exclusion of confidential communications shall not prohibit the
113	113	86filing of a report pursuant to the provisions of subsection (a), (b) or (c).
114	114	87 SECTION 7. Section 16 of said chapter 19A, as so appearing, is hereby amended by
115	115	88striking out subsection (a) and asserting in place thereof the following subsection:-
116	116	89 (a) Subject to appropriation, the department shall develop a coordinated system of
117	117	90protective services for all elderly persons in the commonwealth, except those residing in
118	118	91facilities licensed under sections 51, 57D, or 71 of chapter 111, who are determined to be abused.
119	119	92The protective services system shall also extend to any elderly persons who have been
120	120	93involuntarily committed pursuant to chapter 123, even if they reside in a facility licensed under
121	121	94sections 51, 57D, or 71 of chapter 111. In planning this system, the department shall require
122	122	95input from other protective service agencies and other agencies currently involved in the
123	123	96provision of social, health, legal, nutritional and other services to the elderly, as well as elderly
124	124	97advocacy organizations.
125	125	98 SECTION 8. Section 16 of said chapter 19A, as so appearing, is hereby amended by
126	126	99adding the following subsections:- 6 of 14
127	127	100 (g) If the department receives a report which alleges the abuse of an elderly person whose
128	128	101caretaker is a state agency, the department shall notify the general counsel of the office of the
129	129	102secretary of health and human services, or his designee, within such office, and the state agency
130	130	103which provides services to the elderly person. The department shall investigate the abuse and
131	131	104arrange for protective services, as provided in section 18. The department shall take reasonable
132	132	105steps to avoid unnecessary, unwarranted or counterproductive duplication between any internal
133	133	106investigation or inquiry by the state agency and the department’s investigation. The state agency
134	134	107may, at its discretion, utilize the department’s investigation in lieu of an internal investigation
135	135	108conducted by said state agency.
136	136	109 (h) The department is authorized to gain immediate access to facilities controlled by state
137	137	110agencies upon receiving a report of elder abuse in such facilities, and to request the disclosure of
138	138	111documents pertaining to allegations of abuse occurring within such facilities.
139	139	112 (i) If the department receives a report which alleges the abuse of an elderly person whose
140	140	113caretaker is not a state agency, and who: (1) resides in a facility not licensed under sections 51,
141	141	11457D or 71 of chapter 111; or (2) is involuntarily committed pursuant to chapter 123, the
142	142	115department shall investigate the abuse and arrange for protective services, as provided in section
143	143	11618.
144	144	117 (j) If the department receives a report which alleges the abuse of an elderly person who
145	145	118resides in a facility licensed under sections 51, 57D, or 71 of chapter 111, who is not
146	146	119involuntarily committed pursuant to chapter 123, the department shall refer immediately such
147	147	120report to the department of public health. 7 of 14
148	148	121 (k) The department shall provide training to all employees conducting investigations or
149	149	122furnishing protective services to elderly persons in the care of state agencies that is specifically
150	150	123focused on best practices when responding to claims of abuse in prisons, jails, commitment
151	151	124centers, and other custodial settings.
152	152	125 (l) The department shall issue and implement regulations to ensure that elders in prisons,
153	153	126jails, civil commitment centers, houses of correction, and similar facilities are notified of the
154	154	127department’s protective services program and how to report abuse under this chapter.
155	155	128 SECTION 9. Said chapter 19A is hereby further amended by striking out section 18, as
156	156	129so appearing, and inserting in place thereof the following section:-
157	157	130 (a) The department or its designated agency shall assess and evaluate the information
158	158	131reported pursuant to the provisions of section fifteen.
159	159	132 Such assessment shall include a visit to the residence of the elderly person who is the
160	160	133subject of the report, or the facility in which they are living, and may include consultations with
161	161	134appropriate service agencies and individuals who have knowledge of the elderly person's
162	162	135situation including the person filing the report. The elderly person who is the subject of the
163	163	136report shall receive written notice that an assessment is being conducted and shall have the right
164	164	137to review the file and report developed as a result of the assessment.
165	165	138 (b) If the elderly person resides in a facility, the assessment shall include a visit to the
166	166	139facility, an evaluation of the environment of the facility, and a written determination of the risk
167	167	140of physical or emotional injury to any other residents or elderly persons in the same facility. 8 of 14
168	168	141 (c) If the assessment results in a determination that the elderly person is suffering from
169	169	142abuse, the department or the designated agency shall evaluate the elderly person's functional
170	170	143capacity, situation, and resources and shall develop a service plan for the provision of protective
171	171	144services. Said plan shall be appropriate to the needs of the elderly person and shall utilize the
172	172	145least restrictive alternatives.
173	173	146 The department shall adopt rules and regulations establishing time limits for the
174	174	147completion of assessments and evaluations and for the implementation of service plans;
175	175	148provided, however, that if an emergency exists, assessments shall be completed within twenty-
176	176	149four hours of the receipt of the report.
177	177	150 If an assessment results in a determination that the elderly person has suffered serious
178	178	151abuse, the department or designated agency shall report such determination to the district
179	179	152attorney of the county where the abuse occurred within forty-eight hours. The district attorney
180	180	153may investigate and decide whether to initiate criminal proceedings.
181	181	154 (d) If the elderly person’s caretaker is a state agency, upon the completion of the
182	182	155assessment, the department may forward a copy of the report developed as a result of the
183	183	156assessment to the state agency and any other agency of the Commonwealth who has jurisdiction
184	184	157over the alleged victim, the matter under investigation, or associated professional misconduct,
185	185	158including, but not limited to, the attorney general or appropriate district attorney, for possible
186	186	159prosecution or the imposition of remedial or disciplinary measures in accordance with the
187	187	160requirements of any applicable law or regulation.
188	188	161 The report shall contain the information acquired during the assessment and all other
189	189	162information deemed appropriate by the department, including appropriate recommendations to 9 of 14
190	190	163remedy any substantiated abuse and improve the safety of elderly persons cared for by the state
191	191	164agency.
192	192	165 In addition, regardless of whether abuse is substantiated or not, the designated
193	193	166investigator may make a determination that a violation of other state statutes and/or regulations
194	194	167may exist and whether such a violation poses a risk of harm to elderly persons. If such a
195	195	168violation is suspected the investigator may make recommendations regarding actions needed to
196	196	169remedy the suspected violation, including, but not limited to, referral of the matter to the
197	197	170appropriate agency of the commonwealth that has jurisdiction over the violation.
198	198	171 (e) The department or the designated agency shall provide or arrange for protective
199	199	172services in accordance with the service plan developed pursuant to the provisions of subsection
200	200	173(c). Protective services shall include, but not be limited to, the following: the capacity to respond
201	201	174to an emergency; protective services case work; the capacity to provide or arrange for a
202	202	175homemaker, home-health aide, transportation, legal assistance, counseling, nutrition services,
203	203	176guardianship and conservatorship, protective order through the court, emergency shelter, foster
204	204	177care, adult day care services, assistance in applying for medical parole, as described in section
205	205	178119A of chapter 127, and assistance in applying for a reasonable accommodation.
206	206	179 (g) The department or the designated agency is authorized to arrange for additional
207	207	180services necessary to assist and protect elderly persons who have been abused, including, but not
208	208	181limited to, the following: medical care, mental health care and emergency financial assistance.
209	209	182 SECTION 10. Section 22 of said chapter 19A, as so appearing, is hereby amended by
210	210	183adding the following paragraph:- 10 of 14
211	211	184 No elderly person residing in a prison, jail, civil commitment center, house of correction,
212	212	185or similar facility shall be charged for the provision of protective services.
213	213	186 SECTION 11. Said chapter 19A is hereby further amended by striking out section 24, as
214	214	187so appearing, and inserting in place thereof the following section:-
215	215	188 (a) Within 120 days following the end of each fiscal year, the department shall submit a
216	216	189report to the governor, the general court and the public which shall include a description of the
217	217	190activities of the department and all designated agencies pursuant to sections fourteen to 26,
218	218	191inclusive, during the preceding fiscal year. Said report shall contain:
219	219	192 (1) statistical information about the number and types of reports received under section
220	220	193fifteen;
221	221	194 (2) the results of the assessments and evaluations conducted and the amount, type and
222	222	195costs of services provided under section eighteen;
223	223	196 (3) information on the quality of services provided and the results of such services in
224	224	197terms of alleviating abuse;
225	225	198 (4) the number of reports of abuse of elderly persons in the care of a state agency;
226	226	199 (5) the number of reports of abuse of elderly persons in the care of a state agency that
227	227	200resulted in a substantiated finding of abuse;
228	228	201 (6) the number of cases referred by the department to a prosecutor;
229	229	202 (7) the number of cases referred to a prosecutor in which the elderly person who was
230	230	203abused was in the care of a state agency; 11 of 14
231	231	204 (8) any recommendations issued by the department to a state agency for the purpose of
232	232	205preventing and remediating elder abuse;
233	233	206 (9) the number of reports of abuse of elderly persons in covered facilities, who are not in
234	234	207the care of a state agency; and
235	235	208 (10) the number of reports of abuse of elderly persons in covered facilities, who are not in
236	236	209the care of a state agency, which resulted in a substantiated finding of abuse.
237	237	210 (b) Said report shall identify problems that may arise in the implementation of this
238	238	211chapter and shall contain the recommendations of the department for action on the part of the
239	239	212legislature.
240	240	213 (c) Within 120 days following the end of each fiscal year, each state agency responsible
241	241	214for the care or custody of elderly persons shall submit a report to the governor, the general court
242	242	215and the public, describing the state agency’s actions taken during the preceding three fiscal years
243	243	216in response to recommendations issued to the state agency by Elder Affairs, if any
244	244	217recommendations were made during the preceding three fiscal years. Said report shall also
245	245	218include the number and type of employment actions taken as a result of substantiated findings of
246	246	219abuse of elderly persons within the agency’s care.
247	247	220 SECTION 12. Section 25 of said chapter 19A, as so appearing, is hereby amended by
248	248	221striking out the word “twenty-four,” and inserting in place thereof the word “twenty-six.”
249	249	222 SECTION 13. Said chapter 19A is hereby further amended by striking out section 26, as
250	250	223so appearing, and inserting in place thereof the following section:-
251	251	224 Section 26. 12 of 14
252	252	225 (a) Nothing in this chapter shall be construed to be a limitation of the powers and
253	253	226responsibilities assigned by law to other departments or agencies, nor shall this chapter be
254	254	227construed to relieve any such department or agency of its obligations to investigate and respond
255	255	228appropriately to alleged incidents of abuse.
256	256	229 (b) If the department determines that an investigation under this section or section 18
257	257	230would duplicate or interfere with an ongoing investigation by law enforcement officials
258	258	231concerning possible criminal conduct arising out of the same conduct, it may, in consultation
259	259	232with the secretary of health and human services, delay or defer such investigation, if the
260	260	233department determines that the health and the safety of elderly persons shall not be adversely
261	261	234affected thereby and that the department's ability to conduct a later investigation shall not be
262	262	235unreasonably impaired by such delay or deferral. In all cases including, but not limited to, those
263	263	236in which the department agrees to delay or defer its investigation, the attorney general or district
264	264	237attorney shall keep the department informed of the status of the criminal investigation and the
265	265	238department shall provide to the attorney general or the district attorney any and all information
266	266	239that may be relevant to the criminal investigation. In cases in which the department agrees to
267	267	240delay or defer its investigation, it shall monitor the progress of the criminal investigation and
268	268	241shall determine, after consultation with such law enforcement agencies, when or whether the
269	269	242department’s investigation should be initiated or resumed.
270	270	243 (c) If the department or a protective services agency receives a report of abuse of an
271	271	244elderly person who is in the care or custody of a state agency, the state agency shall immediately
272	272	245allow the department or the protective services agency to enter and inspect facilities of the state
273	273	246agency. The state agency shall furnish a space in which an investigator or investigators may meet
274	274	247confidentially with the elderly person and any necessary witnesses for any length of time deemed 13 of 14
275	275	248necessary by the protective services agency. The state agency shall allow the investigator to meet
276	276	249with the elderly person and any necessary witnesses. If the elderly person is in need of medical
277	277	250care, the investigator shall collaborate with the state agency to ensure that the elderly person
278	278	251receives appropriate medical care.
279	279	252 (d) The department shall have full access to any facility run by a state agency which is
280	280	253responsible for the care of elderly persons, in consultation with the leaders of the state agency.
281	281	254The state agency shall provide the department access to any relevant records pertaining to a
282	282	255report of abuse and the alleged victim.
283	283	256 (e) If, upon completion of investigation of a report of abuse of an elderly person whose
284	284	257caretaker is a state agency there is reasonable cause to conclude that such abuse did occur, or
285	285	258whenever, upon its own motion, the department determines that a formal hearing is necessary to
286	286	259ascertain the scope and remedy of such abuse of elderly persons whose caretaker is a state
287	287	260agency, the department may initiate a formal investigation, including a hearing, to determine the
288	288	261nature and the extent of such abuse and what recommendations, if any, should be made with
289	289	262respect to such occurrence. Testimony in department proceedings may, in the discretion of the
290	290	263department, be recorded and taken under oath. The department may, in its discretion, permit any
291	291	264party to testify, to call and examine witnesses, to introduce evidence or to cross-examine
292	292	265witnesses. Before testifying, all witnesses shall be given a copy of the regulations governing the
293	293	266department proceedings. Each witness shall be entitled to be represented by counsel and may
294	294	267refuse to submit evidence or give testimony if such evidence or testimony could tend to
295	295	268incriminate him. All proceedings of the department shall be public unless the department, in
296	296	269consultation with the secretary of health and human services, votes to go into executive session.
297	297	270Any person whose name is mentioned during a proceeding under this section and who may be 14 of 14
298	298	271adversely affected by any action of the department as a result of the proceedings shall have the
299	299	272right to appear personally, to be represented by counsel in connection with the proceedings, to
300	300	273call and examine witnesses, to introduce evidence or to cross-examine witnesses.
301	301	274 (f) Upon the completion of any formal investigation, the department shall: (1) issue a
302	302	275written report and refer the same to the appropriate state agency. Such report shall contain
303	303	276findings of fact concerning the alleged occurrence of abuse that was the subject of the
304	304	277investigation, together with a finding as to whether or not such abuse did occur and, if so, what
305	305	278actions are necessary to remedy the causes of such abuse or to prevent its reoccurrence; (2) refer
306	306	279any matters for which there is reason to believe that a crime has been committed to the attorney
307	307	280general, the United States attorney or a district attorney for the county wherein such crime was
308	308	281committed; (3) refer any matters for which there is reason to believe that employee misconduct
309	309	282has occurred to the state agency employing such person for imposition of disciplinary measures
310	310	283in accordance with the requirements of any applicable law, regulation or collective bargaining
311	311	284agreement; or (4) refer any matters for which there is reason to believe that misconduct has
312	312	285occurred by a contractor with a state agency or by such contractor's agent, to the state agency
313	313	286contracting with such party for termination of such contract or for such other action as may be
314	314	287deemed appropriate by such state agency.