PETITION OF:

SECTION 1. Whereas the Commonwealth has been a national leader in the independent living movement in the United States for more than a quarter century; and

Whereas many of our citizens with disabilities have been living in the community because of our innovative and nationally-recognized Personal Care Attendant Program; and

Whereas the cornerstone of the independent living philosophy is one of consumer choice and consumer control; where the consumer is the employer, having control over the hiring, training, and termination of his or her caregiver; and

Whereas the Massachusetts General Court recognizes that the Commonwealth has a financial, legal and human rights interest in maintaining the independence of our elderly citizens and those with disabilities; and

Whereas all citizens, especially individuals with disabilities, have a right to live free from abuse and neglect in their own homes; and

Whereas we recognize that individuals with disabilities should have an opportunity, if they so choose, to gather information on prospective employees,

Now we therefore do propose the following Act Regarding Criminal Background Record Information.

SECTION 2. Section 172C of Chapter 6 is hereby deleted in its entirety, and replaced with the following new section:

Section 172C Dissemination of criminal offender record information to agencies, elderly persons, or individuals with a disability employing or referring individuals to provide services to said elderly or individuals with a disability.

Section 172C. For purposes of this section, the following words shall, unless the context requires otherwise, have the following meanings:--

""Elderly person'', an individual who is sixty years of age or over.

""Individual with a disability'', an individual who, because of his or her disability, needs physical assistance with activities of daily living, such as taking medications, bathing or grooming, dressing, walking, eating, toileting, and transferring.

”Surrogate or agent”, a person or agency designated by an elderly person or an individual with a disability to act in his or her behalf.

Notwithstanding the provisions of section one hundred and seventy-two, criminal offender record information may be made available, upon application to the Criminal History Systems Board, to any of the following agencies, elderly persons, or individuals with a disability who employ, accept as a volunteer or refer for employment to a client any individual who will provide care, treatment, education, training, transportation, delivery of meals, instruction, counseling, supervision, recreation or other services in a home or in a community based setting for any elderly person or individual with a disability or who will have any direct, indirect, or unmonitored contact with such elderly person or individual with a disability or access to such persons' files:

(1) any agency which provides homemaker, home health aide, companion or other community based services to elderly persons or individuals with a disability in home or community based settings, including, but not limited to home health agencies certified under Title XVIII of the Social Security Act;

(2) a home care corporation established pursuant to the provisions of chapter nineteen A;

(3) a municipality; or

(4) any agency, organization, elderly person or individual with a disability, that, employs or refers personal care attendants; or

(5) any other entity receiving federal, state or local funds.

Such agencies, elderly person or individual with a disability, shall obtain criminal offender record information, as made available by both the state and federal government, including the criminal offender record information collected under section 168 of this chapter, and information contained in the sex offender registry created by section 178D of this chapter, concerning any such individual prior to employing such individual, accepting such individual as a volunteer or referring such individual for employment to an elderly or disabled persons. If any elderly person or individual with a disability employing a personal care attendant is unable to initiate the criminal background check called for under this section, said background check may be initiated by a surrogate or agent on behalf of the elderly person or individual with a disability..

Any agency, elderly person or individual with a disability who is the recipient of services from any individual who provides care, treatment, education, training, transportation, delivery of meals, instruction, counseling, supervision, recreation or other services in a home, shall be given the option to commence said services while a criminal background check is being conducted...An agency, elderly person or individual with a disability may employ an individual for a position that involves the provision of direct personal care or treatment on a conditional basis prior to receiving the results of such individual’s criminal offender check as provided for by this section. No agency, elderly person or individual with a disability shall be liable for civil damages to any individual so conditionally employed and subsequently discharged by reason of information received as a result of a criminal offender record check completed pursuant to this section.

Any agency, elderly person, or individual with a disability obtaining information under this section shall not disseminate such information for any purpose other than to further the protection of the elderly person or individual with a disability, provided that the results of a criminal background check may be shared by such agencies with the elderly person or individual with a disability who is the recipient of services as defined in this section, where the elderly person or individual with a disability is the employer of said person who was the subject of a criminal history background check.

Notwithstanding the provisions of this section, an elderly person or individual with a disability who employs a personal care attendant shall be informed of his or her right to have a criminal background check performed on any individual who is otherwise qualified and is in the final stages of consideration to become his or her personal care attendant. Said elderly person or individual with a disability shall be required to consent in writing to the provision of a criminal background check as provided for under this section, and shall be permitted to hire any individual of his or her choice.

The criminal history systems board shall waive the fee assessable pursuant to section 172A for criminal offender record information made available pursuant to this section.

Notwithstanding the provisions of any general or special law to the contrary, the division of medical assistance shall, subject to appropriation, reimburse any agency, elderly person or individual with a disability required to obtain information under this section for the portion of the costs associated with obtaining criminal offender record information on employees or potential employees providing services to individuals on MassHealth pursuant to this section.

A violation of this section shall constitute a violation of section 2 of chapter 93A.

SECTION 3. The Criminal History Systems Board shall promulgate regulations to implement the provisions of this section.