Bill Summary – FastDemocracy

HOUSE . . . . . . . . No. 4924
        The Commonwealth of Massachusetts
                    ________________________________________
                       HOUSE OF REPRESENTATIVES, July 29, 2024.
   The committee on Children, Families and Persons with Disabilities, to
whom were referred the petition (accompanied by bill, Senate, No. 109) of
Joan B. Lovely, Sean Garballey, Angelo J. Puppolo, Jr., John F. Keenan
and other members of the General Court for legislation relative to
supported decision-making agreements for certain adults with disabilities
and the petition (accompanied by bill, House, No. 201) of Christopher M.
Markey, Vanna Howard and Marc T. Lombardo relative to supported
decision-making agreements, reports recommending that the
accompanying bill (House, No. 4924) ought to pass.
                            For the committee,
                                                      JAY D. LIVINGSTONE.
                                                      FILED ON: 7/26/2024
      HOUSE . . . . . . . . . . . . . . . No. 4924
                                The Commonwealth of Massachusetts
                                                      _______________
                                    In the One Hundred and Ninety-Third General Court
                                                       (2023-2024)
                                                      _______________
     An Act relative to supported decision making.
              Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
     of the same, as follows:
          SECTION 1. Chapter 6A of the General Laws is hereby amended by inserting after
  section 16F the following section:-
          Section 16F½. The executive office of health and human services shall establish a
  training program on supported decision-making. The training program shall include instruction
 by state agencies including, but not limited to, the department of developmental services, the
 department of mental health and the executive office of elder affairs. The training program shall
 be provided to any supporter or decision-maker pursuant to section 5-601 of chapter 190B and
 shall include instruction on the rights and obligations contained in section 5-602 of chapter 190B
 and dispute resolution. The executive office of health and human services shall consult with the
 executive office of elder affairs, the department of developmental services, the department of
 mental health, the department of public health, the Disability Law Center, the Massachusetts
 Health and Hospital Association, the Massachusetts Medical Society, the Massachusetts Bankers
 Association and adults who receive supported decision-making assistance and supporters who
 assist in decision-making pursuant to a supported-decision making agreement in the development
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 of the training. The training shall be in a format accessible to the individuals receiving the
 training.
         SECTION 2. Section 2 of chapter 71B of the General Laws, as appearing in the 2022
 Official Edition, is hereby amended by inserting, in line 86, after the word “sec.” the following
 paragraph:- The department of elementary and secondary education shall promulgate regulations
 in consultation with the department of higher education requiring school districts, as part of their
 transitional planning process for students with disabilities, to inform students and their families
 of the availability of supported decision-making as an alternative to adult guardianship for
 students with disabilities that are receiving services at age sixteen. The department shall provide
 supported decision-making agreement training to schools and post all training materials on the
 department’s website including a sample form for a decision-maker to request the release of
 educational records.
         SECTION 3. Section 3 of said chapter 71B of the General Laws, as so appearing, is
 hereby amended by inserting, in line 301 after the word “program.” the following paragraph:- At
 the first IEP meeting after a student has turned age sixteen or older, the IEP team shall inform the
 student and their family or guardian, of the availability of supported decision-making agreements
 as an alternative to guardianship. The IEP team shall assist the child and their family or guardian
 in locating resources to assist in establishing a supported decision-making plan if the child and
 their family or guardian are interested in supported decision-making.
         SECTION 4. Section 5-303 of said chapter 190B, as appearing in the 2022 Official
 Edition, is hereby amended by inserting, in line 50, after the word “guardianship”, the following
 words:- or a supported decision-making agreement.
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         SECTION 5. Subsection (b) of section 5-303 of said chapter 190B, as so appearing, is
 hereby amended, by inserting after paragraph (9) the following paragraph:-
         (9½) a copy of any supported decision-making agreement executed by the person alleged
 to be incapacitated, if available:-
         SECTION 6. Chapter 190B of the General Laws is hereby amended by inserting after
 section 5-507 the following sections:-
         Section 5-601. Definitions:
         As used in this section, the following words shall have the following meaning unless the
 context clearly requires otherwise:
         “Adult”, an individual 18 years of age or older.
         “Coercion”, the use of force or threats to persuade someone to do something.
         “Decision-maker”, an adult who seeks to execute, or has executed, a supported decision-
 making agreement with 1 or more supporters under this chapter.
         “Executed”, a supported decision-making agreement that is signed by both the decision
 maker and all supporters in accordance with requirements set forth in this chapter.
         “Supported decision-making”, the process of supporting and accommodating the
 decision-maker, without impeding the self-determination of the decision-maker, in making life
 decisions, including, but not limited to: (i) decisions related to where the decision-maker wants
 to live; (ii) the services, supports, financial decisions and medical care the decision-maker wants
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 to receive; (iii) whom the decision-maker wants to live with; and (iv) where the decision-maker
 wants to work.
         “Supported decision-making agreement”, a voluntary, written agreement, written in plain
 language that is accessible and understood by the decision-maker and entered into by the
 decision-maker with one or more supporters pursuant to section 5-602 used to support decision-
 making.
         “Supporter”, an adult who meets the requirements of section 5-602 and has executed a
 supported decision-making agreement with a decision-maker.
         Section 5-602.
         (1)(a) A decision-maker may voluntarily enter into a supported decision-making
 agreement with 1 or more supporters.
         (b) The decision-maker may amend or terminate a supported decision-making agreement
 at any time pursuant to section 5-602(3)(e).
         (2)(a) Any person, eighteen years of age or older, may be a supporter.
         (b) A person shall not serve as a supporter in a supported decision-making agreement
 when:
         (1) The decision-maker previously made, or makes, an allegation of elder abuse against
 the supporter.
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        (2) The decision-maker has obtained or obtains a Protection from Abuse Order against
 the supporter or a harassment prevention order against the supporter under chapter 258 of the
 General Laws.
        (3) The supporter is the subject of a civil or criminal order prohibiting contact with the
 decision-maker;
        (4) The supporter has been removed as the conservator of the decision-maker, based upon
 a finding that they did not act in the conservatee’s best interest; or
        (5) The supporter is found criminally, civilly, or administratively liable for abuse,
 neglect, mistreatment, coercion, or fraud.
        (3)(a) Except as limited by a supported decision-making agreement, a supporter shall do
 all the following:
        (1) Respect the values, beliefs, and preferences of the decision-maker.
        (2) Act honestly, diligently, and in good faith.
        (3) Act within the scope identified by the decision-maker.
        (4) Support and implement the direction, will, and preferences of the decision-maker.
        (5) Maintain confidentiality of any information obtained by a supporter, unless the
 decision-
        maker specifically authorizes its disclosure.
        (6) Exercise only the authority granted to the supporter in the supported decision-making
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        agreement.
        (b)(1) Except as limited by a supported decision-making agreement, a supporter may,
 with the consent of the decision-maker, provide to the decision-maker decision-making
 assistance regarding the decision-maker’s affairs, including, but not limited to: (i)
 communicating decisions and understanding information about, options for, the responsibilities
 of and the consequences of decisions; (ii) accessing, obtaining and understanding information
 that is relevant to decisions, necessary for the decision-maker to manage their affairs, including,
 but not limited to, medical records, including protected health information under the Health
 Insurance Portability and Accountability Act of 1996 (Pub. L. 104-191); psychological and
 financial records; educational records under the Family Education Rights and Privacy Act of
 1974 (20 U.S.C. s. 1232g), or information protected by 42 U.S.C.A. s. 290dd-2, 4 C.F.R. Part 2;
 as well as other educational records including Individualized Education Programs, transcripts, a
 transition plan, a student summary of performance and any other materials as requested; (iii)
 ascertaining the wishes and decisions of the decision-maker, assisting in communicating those
 wishes and decisions to other persons and assisting to ensure the decision-maker’ wishes and
 decisions are implemented; and (iv) accompanying the decision-maker and participating in
 discussions with other persons when the decision-maker is making decisions or attempting to
 obtain information needed to make decisions.
        (c) Unless the supporter has a valid legal authorization to do so and the action is within
 the scope of their authority, a supporter shall not do either of the following: (i) make decisions
 for, or on behalf of, the decision-maker, or (ii) sign documents on behalf of the decision-maker.
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        (d) A supporter shall not participate in any life decision in which they have a conflict of
 interest. This includes, but is not limited to, any decision in which the supporter, his or her
 immediate family or partner, a business organization in which he or she is serving as officer,
 director, trustee, partner or employee has a financial interest or other direct and substantial
 interest in the outcome.
        (e) A supporter shall only be authorized to assist the decision-maker in accessing,
 collecting or obtaining information that is relevant to a decision authorized under the supported
 decision-making agreement and to which the decision-maker agrees that the supporter should
 have access pursuant to a written authorization in accordance with the applicable federal or state
 privacy laws. The decision-maker may withdraw the authorization at any time in whatever
 manner is authorized by applicable state or federal law. A supporter shall keep confidential any
 information obtained in the process of assisting the decision-maker.
        (f) A decision-maker may bring a civil action for damages and equitable relief, including
 injunctive relief, resulting from a violation of this section or a regulation promulgated under this
 section in any court of competent jurisdiction.
        (4) The existence of a supported decision-making agreement shall not preclude a
 decision-maker from seeking personal information without the assistance of a supporter.
        (5) To be valid, a supported decision-making agreement shall be signed and dated by the
 decision-maker and each applicable supporter in the presence of a notary public. The decision-
 maker may use reasonable modifications, such as assistive technology or physical assistance, to
 sign the agreement.
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          (6) Evidence of undue influence or coercion in the creation or signing of a supported
 decision-making agreement shall render the supported decision-making agreement invalid.
          (7) A supported decision-making agreement shall be personalized by the decision-maker
 to reflect the decision-maker’s personal circumstances. A supported decision-making agreement
 shall:
          (a) be in writing in plain language that is accessible and understood by the decision-
 maker;
          (b) identify the decision-maker and all supporters;
          (c) describe the types of decisions with which each supporter shall assist the decision-
 maker. If the decision-maker wants assistance to access their medical records, the agreement
 must specifically reference that the supporter shall have access to protected health information
 under the Health Insurance Portability and Accountability Act of 1996 (Pub. L. 104-191). If the
 decision-maker wants assistance to access their education records, the agreement must
 specifically reference that the supporter shall have access to protected education records under
 the Family Education Rights and Privacy Act of 1974 (20 U.S.C. s. 1232g) or information
 protected by 42 U.S.C. a. s. 290dd-2, 4 C.F.R. Part2; as well as other education records including
 Individualized Education Programs, transcripts, a transition plan, a student summary of
 performance and any other materials.
          (d) indicate that all supporters agree to assist the decision-maker in making such
 decisions, to respect the decision maker's decisions and to assist the decision-maker in
 communicating such decisions;
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        (e) state that supporters shall not make decisions for the decision-maker;
        (f) indicate that the decision-maker may amend or terminate the supported decision-
 making agreement at any time and for any reason subject to the requirements of subsection (e);
        (g) list contact information for the disabled persons protection commission, the elder
 abuse hotline and all programs providing services to the decision-maker; and
        (h) include a statement from each supporter that they understand and accept their roles,
 responsibilities and limitations as outlined in section 5-602(3)(a).
        (8) A person who receives the original or a copy of a supported decision-making
 agreement shall rely on the agreement and recognize a decision, request or communication made
 with the decision-making assistance of a supporter as the decision, request or communication of
 the decision-maker. A written confirmation from the decision-maker may be required affirming
 that the supported decision-making agreement presented is current.
        (9) A person or entity that, in good faith, acts in reliance on a decision made pursuant to a
 supported decision-making agreement shall not be subject to civil or criminal liability or to
 professional discipline.
        (10)(a) The supported decision-making agreement shall remain in effect until it is
 terminated or expires.
        (b) A supportive decision-making agreement shall be terminated as follows:
        (1) On any termination date set forth in the agreement but no more than a term of three
 years, unless extended by agreement, in writing, of the decision-maker and supporters, pursuant
 to section 5-602 with terms of execution.
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         (2) A supporter may terminate participation in a supported decision-making agreement at
 any time, by written notice to the decision-maker and any other supporters to the agreement;
 provided, however, that if the agreement has more than 1 supporter, the agreement shall remain
 valid as to all other supporters.
         (3) A decision-maker may terminate a supported decision-making agreement at any time
 by written notice to all supporters to the agreement.
         (4) Notice of the suspension of a supporter pursuant to section 5-602 shall be given in
 writing and delivered in hand to said person or his or her attorney, or sent by registered mail to
 said person at his or her residence or his place of business. Such notice so given, delivered or
 sent shall automatically suspend the authority of such person to perform the duties of his or her
 office or employment until he or she is notified in like manner that his or her suspension is
 removed.
         (5) The death or incapacitation of the decision-maker.
         (6) In the event that the decision-maker becomes subject to a guardianship order, the
 scope of the supported decision-making agreement may be limited in whole or in part by the
 probate and family court to those decisions reserved for the decision-maker after the issuance of
 the guardianship order.
         (11)(a) The disabled persons protection commission, an elder protective services agency,
 the department of developmenta