BILL NUMBER:S3078               REVISED 06/06/11

TITLE OF BILL:
An act
to amend the mental hygiene law and the real property actions and
proceedings law, in relation to
discharge of residents of a community residence

PURPOSE:
This bill clarifies that the discharge of a resident from a community
residence licensed or operated by the Office of Mental Health (OMH)
or the Office of People with Developmental Disabilities (OPWDD) shall
be governed by the regulations of those agencies, respectively, and
shall not be considered to involve a relationship of landlord and
tenant.

SUMMARY OF PROVISIONS:
Section 1 of the bill would amend Mental Hygiene Law (MHL) § 41.33 to
clarify that there is no landlord-tenant relationship between the
operator of a community residence for the mentally disabled and a
resident.

Section 2 of the bill would amend MHL § 41.41 to clarify that there is
no landlord-tenant relationship between the operator of a community
residence licensed or operated by OPWDD and a resident of such
community residence.
              

Section 3 of the bill would amend MHL § 41.44 to clarify that there is
no landlord-tenant relationship between the operator of a community
residence licensed or operated by OMH and a resident of such
community residence.

Section 4 of the bill would add a new Section 713-b to the Real
Property Actions and Proceedings Law (RPAPL) clarifying that
discharges of residents from community residences licensed or
operated by OPWDD or OMH, or terminations of such residency
agreements, shall be made in accordance with procedures established
by OMH or OPWDD, as applicable, in their respective governing
statutes and implementing regulations.

Section 5 of the bill would provide for an immediate effective date.

LEGISLATIVE HISTORY:
2009/10: S.3486 - Died in Mental Health and Developmental Disabilities.
In 2008, this bill passed the Senate (S.4145) and was referred to the
Assembly Mental Health Committee (A.8927).

STATEMENT OF SUPPORT:
A "community residence," as such term is defined by MHL § 1.03(28),
is any facility operated by or subject to licensure by OMH or OPWDD,
which provides a supervised residence or residential respite services
for mentally disabled persons. Such residences also provide a
homelike environment and room, board and responsible supervision for
the habilitation or rehabilitation of mentally disabled persons as
part of an overall service delivery system. This proposal would
clarify that the relationship of a resident of a community residence


and the program operator is a clinical treatment relationship, not
that of landlord and tenant.

In OMH programs, community residences are considered clinical
treatment programs. In OPWDD programs, community residences are part
of the overall program of services and supports provided to the
person with a disability which is aimed at integrating the person
into society as much as possible. Admission to, and discharge from,
these programs are grounded in clinical determinations. However, in
recognition of the fact that these programs provide room and board
for residents of the program, current regulations of OMH and OPWDD
provide appropriate due process protections, including notice and an
opportunity to be heard, in cases where non-hospitalized residents
are discharged prior to being discharge-ready and wish to dispute
their discharge. These due process protections do not require
eviction proceedings through housing court, because the relationship
between a resident and the program is a clinical treatment
relationship, nor a landlord-tenant relationship.

Courts have long urged action by the Legislature to clarify the
residential rights of persons with mental disabilities who have been
admitted to a treatment facility such as a community residence (see
Metalsky v. Mercy Haven, 156 Misc.2d 558 (Sup. Ct. Nassau Cty. 1993);
Wims v. Abraham Residence III, 184 Misc2d 271 (N.Y.C. Civ. Ct.
2000)). In isolated cases such as these, courts have sought to apply
statutory requirements appropriate to situations involving a
landlord-tenant relationship to treatment facility discharges.
However, the Court in Wims noted that there would be "far-reaching
ramifications on residential rehabilitation programs throughout the
State" that would follow from a treatment facility provider's
obligation "to commence legal proceedings to recover possession of
the premises upon a resident's termination from a program" (id. at
275).

The consequences of applying landlord-tenant requirements to
community residence programs could be detrimental to persons with
mental illness, mental retardation, or developmental disabilities. If
disputed, discharges from community residences would not be made
based upon appropriate clinical determinations, but rather by
obtaining an order of eviction through the housing court. This could
result in inappropriate clinical outcomes harmful to persons with
mental disabilities. It also could be very costly to individual
providers, and could have a negative impact on the continued
availability of these programs for many persons with mental
disabilities, particularly those who have higher service needs.

BUDGET IMPLICATIONS:
There is no fiscal impact associated with this proposal.

EFFECTIVE DATE:
This bill would take effect immediately upon enactment.