Mass. Gen. Laws ch. 123B, sec. 3 — MA Code / Part I / Title XVII / Chapter 123B / Section 3
Transfers; notice to guardian or relative; consent; objection; hearing; right to counsel; emergency transfer
Status: in_force

Section 3. The department shall notify and consult with the permanent guardian or, if there is no such guardian and the person with an intellectual disability does not knowingly object, the nearest relative of a person with an intellectual disability, prior to the transfer of said person from one residential facility for the mentally retarded to another. Such notice shall be given at least forty-five days prior to the proposed transfer. If a permanent guardian has been appointed for a person with an intellectual disability who is receiving residential services through the department, said department shall request said guardian's consent prior to the transfer by the department of said person with an intellectual disability from one residential facility for persons with an intellectual disability to another. Said consent shall be requested in writing by registered mail, at least forty-five days prior to the proposed transfer. The request for consent shall include (1) a statement of how the proposed residential transfer from the current facility to the proposed residential facility will result in improved services and quality of life for the intellectually disabled ward, (2) the location of the proposed facility and a statement that said guardian may examine the facility, and (3) a statement of the rights of said guardian established by this section. Any objection by the guardian to the proposed transfer shall be in writing and shall contain a statement of the reasons upon which the objection is based. Failure to object in writing within forty-five days shall be deemed to be a consent to said transfer. If the guardian files an objection, the transfer shall not occur unless the department prevails at an adjudicatory proceeding pursuant to this section. If the individual service plan developed for the person with an intellectual disability by the department pursuant to its regulations cannot be fully implemented as a result of the guardian's objection to a proposed transfer, the department shall, with twenty days of receipt of said objection, file a request for an adjudicatory proceeding with the division of administrative law appeals established by section four H of chapter seven, whereupon said division shall be authorized to conduct said proceeding to determine whether the transfer should proceed. The division shall conduct an adjudicatory hearing within ninety days in accordance with the provisions of chapter thirty A, and the burden of proof shall be on the department. During the pendency of said hearing the proposed residential transfer shall not occur. Said person with an intellectual disability shall have the right to be represented by counsel. The hearing officer shall determine which placement meets the best interest of the ward giving due consideration to the objections to the placement made by the relative or permanent guardian. The hearing officer shall issue a decision within thirty days of the hearing. After the hearing officer renders a written decision the parties shall have twenty days in which to appeal the decision to the superior court and the court shall hear such appeal as expeditiously as possible in open court or in chambers, and at such time and upon such notice, if notice is required as it in its discretion determines. Notwithstanding the provisions of this section, in the case of an emergency, a transfer from one residential facility for persons with an intellectual disability to another may be made immediately, provided, however, that no person with an intellectual disability shall be transferred to a facility for the mentally ill and notice of said transfer shall be given to said guardian or relative pursuant to this section within eight hours after said transfer. Failure by said guardian to object in writing within forty-five days of said notice shall be deemed to be a consent to said transfer. In all other respects, the standards and procedures governing a non-emergency transfer shall be the same as those governing an emergency transfer.

Section 3. The department shall notify and consult with the permanent guardian or, if there is no such guardian and the person with an intellectual disability does not knowingly object, the nearest relative of a person with an intellectual disability, prior to the transfer of said person from one residential facility for the mentally retarded to another. Such notice shall be given at least forty-five days prior to the proposed transfer.

If a permanent guardian has been appointed for a person with an intellectual disability who is receiving residential services through the department, said department shall request said guardian's consent prior to the transfer by the department of said person with an intellectual disability from one residential facility for persons with an intellectual disability to another. Said consent shall be requested in writing by registered mail, at least forty-five days prior to the proposed transfer. The request for consent shall include (1) a statement of how the proposed residential transfer from the current facility to the proposed residential facility will result in improved services and quality of life for the intellectually disabled ward, (2) the location of the proposed facility and a statement that said guardian may examine the facility, and (3) a statement of the rights of said guardian established by this section. Any objection by the guardian to the proposed transfer shall be in writing and shall contain a statement of the reasons upon which the objection is based. Failure to object in writing within forty-five days shall be deemed to be a consent to said transfer. If the guardian files an objection, the transfer shall not occur unless the department prevails at an adjudicatory proceeding pursuant to this section.

If the individual service plan developed for the person with an intellectual disability by the department pursuant to its regulations cannot be fully implemented as a result of the guardian's objection to a proposed transfer, the department shall, with twenty days of receipt of said objection, file a request for an adjudicatory proceeding with the division of administrative law appeals established by section four H of chapter seven, whereupon said division shall be authorized to conduct said proceeding to determine whether the transfer should proceed. The division shall conduct an adjudicatory hearing within ninety days in accordance with the provisions of chapter thirty A, and the burden of proof shall be on the department. During the pendency of said hearing the proposed residential transfer shall not occur. Said person with an intellectual disability shall have the right to be represented by counsel. The hearing officer shall determine which placement meets the best interest of the ward giving due consideration to the objections to the placement made by the relative or permanent guardian. The hearing officer shall issue a decision within thirty days of the hearing. After the hearing officer renders a written decision the parties shall have twenty days in which to appeal the decision to the superior court and the court shall hear such appeal as expeditiously as possible in open court or in chambers, and at such time and upon such notice, if notice is required as it in its discretion determines.

Notwithstanding the provisions of this section, in the case of an emergency, a transfer from one residential facility for persons with an intellectual disability to another may be made immediately, provided, however, that no person with an intellectual disability shall be transferred to a facility for the mentally ill and notice of said transfer shall be given to said guardian or relative pursuant to this section within eight hours after said transfer. Failure by said guardian to object in writing within forty-five days of said notice shall be deemed to be a consent to said transfer. In all other respects, the standards and procedures governing a non-emergency transfer shall be the same as those governing an emergency transfer.