H 5229

SECTION 1. Section 23 of Chapter 123 of the General Laws, as appearing in the 2024 Official Edition, is hereby amended by striking clause (a) and inserting in place thereof the following clause:- (a) reasonable access to a telephone or video phone with transcription capabilities, as needed for accessibility, to make and receive confidential telephone or video phone calls and to assistance when desired and necessary to implement such right, including access to one’s own phone or similar device to use and access information contained therein; provided, that such calls or other uses of a personal device do not constitute a criminal act or represent an unreasonable infringement of another person’s right to make and receive telephone or video phone calls; SECTION 2. Said section 23 of said chapter 123, as so appearing, is hereby further amended by striking clause (b) and inserting in place thereof the following clause:- (b) to send and receive sealed, unopened, uncensored mail and to send and receive electronic mail utilizing the person’s computer or similar device; provided, however, that the superintendent or director or designee of an inpatient facility may direct, for good cause and with documentation of specific facts in such person’s record, that a particular person’s postal or other paper mail be opened and inspected in front of such person, without it being read by staff, for the sole purpose of preventing the transmission of contraband. Writing materials and postage stamps in quantities great enough to provide for reasonable daily access shall be made available for use by such person. Reasonable assistance shall be provided to such person in setting up and using electronic mail or similar messaging applications and in writing, addressing and posting letters and other documents upon request; provided, that such mail or electronic mail does not constitute a criminal act. Where an individual has available and wishes to bring a personal computer or similar device, this too shall be allowed with reasonable daily access given; provided, that use of such device does not constitute a criminal act; SECTION 3. Said section 23 of said chapter 123, as so appearing, is hereby further amended by striking clause (c) and inserting in place thereof the following clause:- (c) to receive visitors of such person’s own choosing daily and in private, at reasonable times even if not within normal visiting hours. Hours during which visitors may be received may be limited only to protect the privacy of other persons and to avoid serious disruptions in the normal functioning of the facility or program and shall be sufficiently flexible as to accommodate individual needs and desires of such person and the visitors of such person; SECTION 4. Said section 23 of said chapter 123, as so appearing, is hereby further amended by striking clause (d) and inserting in place thereof the following clause:- (d) to a humane psychological and physical environment. Each such person shall be provided living quarters and accommodations which afford privacy and security in resting, sleeping, dressing, bathing and personal hygiene, reading and writing and in toileting in a manner also appropriate to their stated gender identity and with reasonable access to culturally relevant personal care items. Nothing in this section shall be construed to require individual sleeping quarters; SECTION 5. Said section 23 of said chapter 123 is hereby further amended by striking the first sentence of clause (e) and inserting in place thereof the following sentence:- to receive at any reasonable time as defined in department regulations, or to refuse to receive, visits and telephone calls from a client’s attorney or legal advocate, physician, psychologist, clergy member, peer supporter, other advocate, social worker, therapist or any other community mental health, medical or holistic provider, even if not during normal visiting hours and regardless of whether such person initiated or requested the visit or telephone call. SECTION 6. Said section 23 of said chapter 123, as so appearing, is hereby further amended by striking the words “Any dispute or disagreement concerning the exercise of the aforementioned rights in clauses (a) to (f), inclusive, and the reasons therefor shall be documented with specific facts in the client’s record and subject to timely appeal” and inserting in place thereof the following words:- Any dispute or disagreement concerning the exercise of any right under this section and the reasons therefor shall be documented with specific facts in the client’s record and subject to timely appeal. The department shall promulgate regulations relative to discipline and penalties for programs and facilities that violate the requirements of this section or that employ a staff member who violates the requirement of this section, which shall include, but not be limited to, civil penalties and other administrative action; provided, that such penalties shall include a fine not less than $500.00 per incident upon a finding that a program or facility has continued to commit violations of any right herein upon receipt of fair warning and reasonable opportunity to correct such violations; provided further, that the department shall establish and manage a fund to receive all fines collected under this section; and provided further; that such monies contained in such fund shall be equitably distributed by a formal but expeditious request process to benefit the individual or collective needs of persons staying in any program or facility subject to such fine. The department shall contract with no less than 1 qualified legal or advocacy organization a minimum of 3 new full-time positions responsible for investigating complaints, assessing fines and managing distributions from the aforementioned fund. Nothing in this section shall be construed to limit the ability of any party to bring a civil, criminal or administrative action for conduct constituting a violation of any other provision of law SECTION 7. Said section 23 of said chapter 123, as so appearing, is hereby further amended by striking the words “Any right set forth in clauses (a), (c) or (f) may be temporarily suspended, but only for a person in an inpatient facility and only by the superintendent, director, acting superintendent or acting director of such facility upon such person; concluding, pursuant to standards and procedures set forth in department regulations that, based on experience of such person’s exercise of such right, further such exercise of it in the immediate future would present a substantial risk of serious harm to such person or others and that less restrictive alternatives have either been tried and failed or would be futile to attempt. The suspension shall last no longer than the time necessary to prevent the harm and its imposition shall be documented with specific facts in such person’s record” and inserting in place thereof the following words:- Any right set forth in clauses (a), (c) or (f) may be temporarily suspended, but only for a person in an inpatient facility and only by the superintendent, director, acting superintendent or acting director of such facility upon such person concluding, pursuant to standards and procedures set forth in department regulations: (i) that, based on experience of such person’s exercise of such right, further such exercise of it in the immediate future would present a substantial risk of serious harm to such person or others and that less restrictive alternatives have either been tried and failed or would be futile to attempt; or (ii) that, based on experience of such person’s exercise of such right, further such exercise of it in the immediate future would present a serious disruption and that less restrictive alternatives have either been tried and failed or would be futile to attempt. The suspension shall last no longer than the time necessary to prevent the harm or serious disruption and its imposition shall be documented with specific facts in such person’s record SECTION 8. Said section 23 of said chapter 123, as so appearing, is hereby further amended by striking the words “In addition to the rights specified above and any other rights guaranteed by law, a mentally ill person in the care of the department shall have the following legal and civil rights: to wear his own clothes, to keep and use his own personal possessions including toilet articles, to keep and be allowed to spend a reasonable sum of his own money for canteen expenses and small purchases, to have access to individual storage space for his private use, to refuse shock treatment, to refuse lobotomy, and any other rights specified in the regulations of the department; provided, however, that any of these rights may be denied for good cause by the superintendent or his designee and a statement of the reasons for any such denial entered in the treatment record of such person” and inserting in place thereof the following words:- In addition to the rights specified above and any other rights guaranteed by law, a person with a behavioral health condition in the care of the department shall have the following legal and civil rights: to wear their own clothes, to keep and use their own personal possessions including culturally relevant personal care items and toilet articles, to keep and be allowed to spend a reasonable sum of their own money for canteen expenses and small purchases, to have access to individual storage space for their private use, to refuse shock treatment, to refuse lobotomy and any other rights specified in the regulations of the department; provided, however, that any of these rights may be denied for good cause by the superintendent or a designee and a statement of the reasons for any such denial entered in the treatment record of such person SECTION 9. Said section 23 of said chapter 123, as so appearing, is hereby further amended by inserting at the end thereof the following paragraphs:- As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings: “Confidential calls”, a call made outside of and far enough away from any common use or staff-occupied space that a reasonable person would confidently agree that the content of such call could not be overheard; provided, that the space shall be enclosed and free of expectation of routine interruptions where possible. “Culturally relevant personal care item”, an item or product formulated, developed or marketed to adequately care for or be used by a particular population or demographic, including, but not limited to: gender affirming care items, including, but not limited to, gender affirming medications, products and other items included among the gender-affirming health care services defined in section 11I½ of chapter 12; menstrual products, including, but not limited to, sanitary napkins, tampons and panty liners, and other basic hygiene items; products to treat, maintain or care for specific skin or hair types; and similar items or products. “Gender identity”, as defined in section 72GG of chapter 111. “Other advocate”, an individual reasonably informed and able to support someone else to become informed about and exercise their legal rights and not necessarily someone who has been through formal legal training. “Peer supporter”, an individual working in a designated peer role, including, but not limited to, peer advocates, community bridgers, licensed recovery coaches as defined in section 1 of chapter 111J, certified peer specialists and other similar professionals. “Receive or refuse to receive”, a person’s ability, in a facility or program in which an employee monitors or otherwise controls entry, to be asked whether to receive and to consent to receiving a visitor prior to the visitor being granted or denied access to the facility or program. “Serious disruption”, interference that would lead either to significant safety risks or the inability of employees to carry out core responsibilities within the program or facility; provided, however, that a “serious disruption” shall not include simply interfering with an individual’s participation or similar. SECTION 10. The department of mental health shall update its regulations pursuant to section 23 of chapter 123 of the General Laws not later than 6 months after the effective date of this act.