Table of Contents
WHEREAS, it is the responsibility of the Commonwealth to safeguard the health, safety and well-being of its citizens with mental retardation; and
WHEREAS, it is the responsibility of the Commonwealth to ensure that the system of services for people with mental retardation never regresses to the deplorable and degrading conditions of the past; and
WHEREAS, the Commonwealth desires to make permanent the historic improvements in the care of people with mental retardation that were brought about by those who found the conditions of the past utterly unacceptable; and
WHEREAS, the Commonwealth recognizes the value inherent in its receiving ideas and maintaining communication with family members, advocates, public officials, and other members of the public interested in enhancing the well-being of people with mental retardation; and
WHEREAS, it is important that people with mental retardation, their families and the public, be provided with a forum for discussion and resolution of disputes that may otherwise not be addressed by the Department of Mental Retardation pursuant to its statutory responsibilities; and
WHEREAS, it is the responsibility of the Commonwealth to educate the general public as to the potential of people with mental retardation to make meaningful contributions to the communities in which they reside; and
WHEREAS, people with mental retardation must have opportunities to make choices with respect to their future, and to influence the course of public policy as it affects such choices; and
WHEREAS, presence and participation in community life are valued aspirations for people with mental retardation, as they are for all citizens of the Commonwealth; and
WHEREAS, the Commonwealth's network of individualized services designed to address the wide variety of needs of people with mental retardation must be continually evaluated and monitored to ensure its quality and effectiveness;
NOW, THEREFORE, I, William F. Weld, Governor of the Commonwealth, by virtue of the authority vested in me as Supreme Executive Magistrate, do hereby establish the Governor's Commission on Mental Retardation, as follows:
ARTICLE I. Purpose and Scope of Commission
1.1 The purpose of the Commission shall be:
(a) to monitor the quality and effectiveness of the Commonwealth's program of services designed to address the wide variety of needs of people with mental retardation;
(b) to discuss and resolve, to the extent practicable, individual and systemic disputes raised by individuals with mental retardation, their families or guardians, for which no other forum exists, or which have not been adequately resolved by existing avenues of redress;
(c) to provide a visible and credible forum for the review of public policy as it affects persons with mental retardation, and to ensure that the Commonwealth fully complies with its obligations to meet their special needs;
(d) to inform the public, as well as those at the highest levels of state government, whenever the Commonwealth, has failed in its obligations to its citizens with mental retardation;
(e) to work cooperatively with the Department of Mental Retardation in an effort to support the Department's mission to serve people with mental retardation, and to act as an advocate for the Department, with the public and those within state government, for the purpose of ensuring the quality and effectiveness of Department programs designed to achieve its mission; and
(f) to support and review implementation of the recommendations of the Commission made pursuant to its responsibilities under 1.1(b) above, after discussion with and receipt of information from the commissioner of Mental Retardation and other concerned individuals and organizations.
ARTICLE II. Membership and structure of Commission
2.1 The Commission shall consist of nine (9) members appointed by the Governor. Members will be appointed for a term of three (3) years.
2.2 At least three members shall be appointed from a list of not less than twelve (12) nominees submitted to the Governor by the Advisory Panel of the Office of Quality Assurance.
2.3 The Governor shall appoint a Chair of the Commission from among its members.
2.4 Members of the commission shall consist of persons with demonstrated interest, experience, and expertise in mental retardation. No employee of the Department of Mental Retardation, or its contractors, may be a member of the Commission. Members shall be considered to be special state employees and subject to the provisions of General Laws ch. 268A.
2.5 Members of the Commission shall serve without compensation, but shall be reimbursed for necessary expenses incurred in the performance of their duties.
2.6 Members of the commission may be removed by the Governor for good cause shown, including but not limited to failure to attend Commission meetings, as evidenced by absence from three or more Commission meetings in any one calendar year. Voting by proxy, or absentee ballot shall not-be permitted at Commission meetings, or otherwise in the work of the Commission.
2.7 Vacancies in the membership of the commission shall be filled promptly by the Governor. Whenever a vacancy occurs in any of the three positions originally appointed from the list submitted by the Advisory Panel of the Office of Quality Assurance, the Governor shall appoint a successor from a list of four (4) candidates submitted by a nominating committee established for the express purpose of filling such vacancies. This nominating committee shall consist of six (6) members and shall be constituted as follows: one representative from each of the four state school parents associations (Dever, Fernald, Monson, Wrentham), one representative from Advocacy Network, Inc., and one representative from the Massachusetts Association for Retarded Citizens.
2.8 There shall be a full-time Administrator of the Commission who shall be selected by the Governor. The Administrator shall be an employee of the Commonwealth, and shall be compensated for the performance of his or her duties. The Administrator shall have full knowledge of the mental retardation service system and agencies delivering such service and have demonstrated experience in administration, and quality assurance. The Administrator shall hold no other public office.
ARTICLE III. Powers and Duties of Commission Generally
3.1 The Commission shall adopt such internal procedures as are appropriate for the effective performance of its duties. Decisions of the Commission shall be by majority vote of those present, with a quorum of seven members present required for such decisions. Any procedural issues that may arise during Commission meetings shall be resolved by reference to Robert's Rules of Order.
3.2 The Commission shall hold public hearings, in Boston and at such other locations as it shall determine, from time to time, but in no event less than semi-annually. The subject of such hearings shall include, but shall not be limited to: the quality of the health, safety and well-being of the Commonwealth's citizens with mental retardation; the quality of publicly-funded services available to such citizens; and the extent to which the private sector and the community at large provide opportunities for persons with mental retardation. The results of such hearings shall be reported to the Commissioner of the Department of Mental Retardation, the Secretary of the Executive Office of Health and Human Services, and the Governor.
3.3 The Commission, the Administrator, or any person they may designate, shall have access at any and all reasonable times to any retardation facility, residence, program, or part thereof, and to all relevant records, reports, materials, and employees, in order to allow them to enhance their appreciation of the needs of persons with mental retardation, and to monitor the quality with which such needs are being met.
3.4 The Commission may make recommendations to the Governor as to how the quality of life of citizens with mental retardation may be improved by legislation and/or regulations.
3.5 The commission, and/or the Administrator, may, from time to time, issue reports on matters affecting the health, safety and well-being of persons with mental retardation, including reports on the results of activities conducted in accordance with 3.3 above, and may make recommendations for corrective action in response to findings concerning those activities, as well as to complaints that have been reviewed in accordance with Article IV, below. The agencies to which these reports and/or recommendations are directed shall respond to the Commission within a reasonable time frame.
ARTICLE IV. Commission's Powers to Serve as Ombudsman and to Resolve Disputes
4.1 (a) The Administrator, acting on behalf of the Commission, shall be empowered to receive complaints concerning the provision of services to persons with mental retardation that have not been resolved, within a reasonable time, at the local level, or at the level of the Department of Mental Retardation. Prior to presenting a matter for review by the Commission, the Administrator shall consider whether the complaint can be resolved through conciliation. If so, the Administrator shall implement conciliation discussions. In every case, the Administrator shall ensure that the Department of Mental Retardation has had a full opportunity to resolve the matter prior to presentation of the matter to the Commission.
(b) The Commission shall not, in the first instance, consider complaints concerning matters that should be addressed pursuant to: (i) statute or regulations concerning Individual Service Plans; (ii) regulations requiring complaint investigation by the Department; (iii) statutes or regulations governing abuse or neglect of persons with mental retardation; or (iv) any matter for which there exists another mechanism instituted by law for the purpose of addressing the complaint. The Administrator, however, may monitor the processing of such complaints to determine whether the complainant has made full use of existing procedures, and if not, fully inform complainant of such procedures. If the matter has not been resolved pursuant to the procedures described in (i) through (iv) above, or the Administrator's conciliation effort has not resolved the matter, then the Administrator may refer the complaint to the Commission for its review.
(c) The Commission shall not consider complaints from employees of the Department of Mental Retardation when the matter complained of is the proper subject of union grievance proceedings, civil service laws, or other processes designed to deal with conditions of employment.
4.2 In responding to a complaint, or in the performance of their duties as outlined in the preceding Articles, the commission, its Administrator, or their designee may request and obtain such information from agencies of the Commonwealth as is necessary to perform their duties, unless otherwise prohibited by law,(*1) including:
(a) information, data, and reports generated by the existing quality assurance mechanism of the Department of Mental Retardation;
(b) information, data, and reports generated by the Health Care Financing Administration or other federal or state agencies pursuant to Title XIX or other federal statutes or regulations; and
(c) information, data, and reports generated as a result of investigations conducted by the Department of Mental Retardation, the Department of Public Health, the Disabled Persons Protection commission, the Inspector General's Office, or any other state agency.
4.3 The commission, its Administrator, or their designee may also:
(a) visit, inspect, and make firsthand appraisals of mental retardation facilities, residences, and programs, with specific attention to the safety, security, and quality of care provided;
(b) evaluate information and reports from consumers, their families or representatives, or others, regarding the effectiveness and adequacy of services and quality assurance mechanisms; and
*1 The Department of Mental Retardation has determined that disclosure to the Commission of otherwise confidential information about its consumers shall be in the consumers' best interest and therefore shall not be prohibited by law.
(c) monitor facilities, residences, and programs for the purpose of determining whether problems that have been the subject of past complaints have been rectified.
4.4 The Commission and its designees shall be bound by any limitations on the use or release of information imposed by law upon the party furnishing such information to the Commission and its designees.
4.5 The Commission shall be empowered to mediate and to recommend resolution of disputes between the Department of Mental Retardation and those it serves. In such cases, the Commission may act only after it has, by majority vote, directed the Administrator to bring the matter to the attention of the Commissioner of the Department of Mental Retardation for a response, and has determined that no adequate remedy has been forthcoming to address the matter in dispute.
4.6 If the Department of Mental Retardation fails to implement a mediated agreement or recommended resolution reached pursuant to 4.1 above, after notice to the Commissioner who shall be provided with an opportunity to respond, the Commission is authorized to make recommendations directly to the Governor concerning the matter at issue. Such recommendations to the Governor shall be public information.
4.7 The Administrator shall coordinate the mediation and dispute resolution functions of the Commission. Twice annually, the Administrator shall issue an analysis of cases brought to the Commission's attention. Such analysis shall be provided by the Commission to the Governor, the Secretary of the Executive Office of Health and Human Services, and to the Commissioner of the Department of Mental Retardation: This analysis shall be public information.
ARTICLE V. Miscellaneous
5.1 To maximize its capability of realizing its mission, the Commission shall be located in the office of the Governor, and shall report directly to the Governor.
5.2 The Commission and the Administrator shall be provided with staff, secretarial support and other resources necessary to meet their responsibilities. A first Annual Budget for these purposes is attached as an appendix.
5.3 The quality assurance processes of the Department of Mental Retardation and the Commission shall work collaboratively for the benefit of people with mental retardation.
5.4 The Commission, including the Administrator and its staff, shall exist for three years commencing from the date all members and the Administrator are fully sworn. Six months prior to the end of this three year term, the Commission, in consultation with the Administrator, shall make a recommendation to the Governor as to whether the continued existence of the Commission is advisable to assure quality of services and protection of rights for people with mental retardation.
Given at the Executive Chamber in Boston this 25th day of May in the year of our Lord one thousand nine hundred and ninety three.
William F. Weld, Governor
Commonwealth of Massachusetts
Michael Joseph Connolly
Secretary of the Commonwealth