S T A T E   O F   N E W   Y O R K
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                                  2309

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            January 22, 2015
                               ___________

Introduced  by  Sen.  LIBOUS -- read twice and ordered printed, and when
  printed to be committed to the Committee on Mental Health and Develop-
  mental Disabilities

AN ACT to amend chapter 56 of the laws  of  2012,  amending  the  mental
  hygiene  law  and  other  laws  relating to the office for people with
  developmental  disabilities  and  the  office  of  mental  health,  in
  relation to delaying the closure and consolidation of facilities oper-
  ated by such offices

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Short title. This act shall be known and may  be  cited  as
the "freeze unsafe closures now act".
  S 2. Legislative findings. The legislature hereby finds that the state
has recently announced its intent to downsize and close numerous facili-
ties  operated  by the office of mental health and the office for people
with developmental disabilities.   These  facilities  provide  inpatient
services  to  individuals  with  serious mental illness or developmental
disabilities who are very frail, who are dangerous or  violent,  or  who
are  children  and adolescents.  The stated purpose of these closures is
to achieve full community integration of the mentally ill  and  develop-
mentally  disabled  individuals residing throughout the state in accord-
ance with the Supreme Court decision in Olmstead.  Olmstead v. L.C., 527
U.S. 581 (1999),  is  a  United  States  Supreme  Court  case  regarding
discrimination  against people with mental disabilities, which held that
under the Americans with Disabilities Act (ADA), individuals with mental
disabilities have the right to live in  the  community  rather  than  in
institutions,  if in the words of the opinion of the court, "the State's
treatment professionals have  determined  that  community  placement  is
appropriate,  the transfer from institutional care to a less restrictive
setting is not opposed by the affected individual, and the placement can
be reasonably accommodated, taking into account the resources  available

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07284-01-5
              

S. 2309                             2

to  the  State  and  the needs of others with mental disabilities".  The
court also stated that "We emphasize that nothing  in  the  ADA  or  its
implementing  regulations condones termination of institutional settings
for persons unable to handle or benefit from community settings".
  These  closures would result in the loss of much-needed inpatient beds
without adequate planning for community-based,  state-provided  alterna-
tives.  This  plan  also reduces innovative programs that include family
involvement or behavior modification for the mentally ill and the devel-
opmentally disabled.   For mentally  ill  and  developmentally  disabled
consumers,  their  safety net has been cut.  The termination of services
to these individuals by the state will have a dramatic unforeseen impact
by forcing state employees to move to new communities,  disrupting  care
for  fragile consumers, increasing incidents of individuals with violent
tendencies to victimize children and others, the overburdening of hospi-
tal emergency rooms, and inundating local correctional  facilities  with
many new inmates.
  The  legislature  hereby finds that closure of these facilities is not
required by the Olmstead decision and other federal mandates to  achieve
full  community  integration of the mentally ill and the developmentally
disabled.  The state will not achieve significant  savings  by  shutting
the  doors  of  these  vital  facilities; unfortunately, there is a very
significant chance the individuals being affected by these closures will
turn up in our criminal justice system and/or health care facilities.
  The purpose of this act shall be to postpone action providing for  the
closure  of  facilities  operated by the office of mental health and the
office for people with developmental disabilities until April 1, 2018 so
more adequate planning and collaboration can occur.
  S 3. Sections 20 and 21 of part J of chapter 56 of the laws  of  2012,
amending  the  mental  hygiene law and other laws relating to the office
for people with developmental disabilities  and  the  office  of  mental
health, are amended to read as follows:
  S  20.  The commissioner of [the office for people with] developmental
disabilities shall provide notification to the  temporary  president  of
the  senate  and  the  speaker  of  the  assembly  sixty days prior to a
reduction in capacity of twenty persons or more or closure of a develop-
mental center or other institutional setting which is  subject  to  such
reduction  or closure pursuant to such commissioner's planned downsizing
and closing of institutional capacity.  PROVIDED, HOWEVER, THAT NO STATE
OPERATED FACILITY SHALL BE REDUCED IN CAPACITY OR CLOSED BY  THE  OFFICE
FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES PURSUANT TO THIS ACT PRIOR TO
APRIL 1, 2018.
  S  21.  This act shall take effect immediately, provided however, that
on or before May 31, 2012 the office for people with developmental disa-
bilities shall submit a report to the temporary president of the  senate
and  the  speaker  of  the  assembly  on  implementation  related to the
restructuring of developmental disabilities services offices. The office
shall also publish the report on the office's website. The report  shall
include  but not be limited to: the plan timeline for transition of each
of the developmental disabilities service offices  into  a  state  oper-
ations offices of the office for people with developmental disabilities;
the  location of each state operations office, its catchment area, and a
list of services that will be administered under its  jurisdiction;  and
the  location  of  each  developmental disabilities regional office, its
catchment area, and a list  of  programs  under  its  jurisdiction;  and
provided  further  that  section  twenty of this act shall expire and be
deemed repealed on [March 31, 2013] APRIL 1, 2018.

S. 2309                             3

  S 4. Sections 2 and 4 of part O of chapter 56 of  the  laws  of  2012,
amending  the  mental  hygiene law and other laws relating to the office
for people with developmental disabilities  and  the  office  of  mental
health, section 4 as amended by section 2 of part H of chapter 56 of the
laws of 2013, are amended to read as follows:
  S  2.  Notwithstanding  the  provisions of subdivisions (b) and (e) of
section 7.17 of the mental hygiene law,  section  41.55  of  the  mental
hygiene  law,  or  any  other  law to the contrary, the office of mental
health is authorized, ON AND AFTER APRIL 1, 2018, to close, consolidate,
reduce, transfer or otherwise  redesign  services  of  hospitals,  other
facilities  and programs operated by the office of mental health, and to
implement significant service reductions and reconfigurations  according
to  this  section  as  shall be determined by the commissioner of mental
health to be necessary for the cost-effective and efficient operation of
such hospitals, other facilities and programs. One  of  the  intents  of
actions taken that result in closure, consolidation, reduction, transfer
or  other  redesign of services of hospitals is to reinvest savings such
that, to the extent practicable, comparable or greater levels of  commu-
nity  based  mental  health  services  will  be provided to persons with
mental illness in need of services within the catchment  areas  of  such
hospitals,  as  determined  by  the  commissioner  of mental health with
approval from the director of the division of the budget.
  (a) In addition to the closure, consolidation or merger of one or more
facilities, the commissioner of mental  health  is  authorized,  ON  AND
AFTER  APRIL 1, 2018, to perform any significant service reductions that
would reduce inpatient bed capacity by  up  to  400  beds,  which  shall
include  but  not  be  limited to, closures of wards at a state-operated
psychiatric center or the conversion of beds to  transitional  placement
programs, provided that the commissioner provide at least 45 days notice
of  such  reductions  to  the  temporary president of the senate and the
speaker of the assembly and simultaneously post  such  notice  upon  its
public  website.  In  assessing  which significant service reductions to
undertake, the commissioner shall consider  data  related  to  inpatient
census,  indicating nonutilization or under utilization of beds, and the
efficient operation of facilities.
  (b) At least 75 days prior to the anticipated  closure,  consolidation
or  merger  of any hospitals named in subdivision (b) of section 7.17 of
the mental hygiene law, the commissioner of mental health shall  provide
notice  of such closure, consolidation or merger to the temporary presi-
dent of the senate, and speaker of the  assembly,  the  chief  executive
officer  of  the county in which the facility is located, and shall post
such notice upon its public website. The commissioner shall  be  author-
ized to conduct any and all preparatory actions which may be required to
effectuate  such closures during such 75 day period.  In assessing which
of such hospitals to close, the commissioner shall consider the  follow-
ing  factors:  (1)  the size, scope and type of services provided by the
hospital; (2) the relative quality of the care and treatment provided by
the hospital, as may be informed by  internal  or  external  quality  or
accreditation  reviews;  (3)  the current and anticipated long-term need
for the types of services provided by the facility within its  catchment
area,  which  may include, but not be limited to, services for adults or
children, or other specialized services, such as forensic services;  (4)
the  availability  of staff sufficient to address the current and antic-
ipated long term service needs; (5) the  long  term  capital  investment
required  to  ensure  that the facility meets relevant state and federal
regulatory and capital construction requirements, and national  accredi-

S. 2309                             4

tation  standards; (6) the proximity of the facility to other facilities
with space that could accommodate anticipated need, the relative cost of
any necessary renovations of such space, the relative potential  operat-
ing  efficiency  of  such  facilities,  and the size, scope and types of
services provided by the other facilities; (7) anticipated savings based
upon economies of scale or other factors; (8)  community  mental  health
services  available  in  the  facility catchment area and the ability of
such community mental health services  to  meet  the  behavioral  health
needs  of  the  impacted  consumers; (9) the obligations of the state to
place persons with mental disabilities in community settings rather than
in institutions, when appropriate; and (10) the  anticipated  impact  of
the closure on access to mental health services.
  (c)  Any  transfers of inpatient capacity or any resulting transfer of
functions shall be authorized to be made by the commissioner  of  mental
health  and  any transfer of personnel upon such transfer of capacity or
transfer of functions shall  be  accomplished  in  accordance  with  the
provisions of section 70 of the civil service law ON AND AFTER APRIL 15,
2018.
  S  4.  This  act  shall take effect immediately and shall be deemed to
have been in full force and effect on and after April 1, 2012;  provided
that  the  date  for  any  closure or consolidation pursuant to this act
shall be on a date certified by the commissioner of mental  health;  and
provided further, however, that section two of this act shall expire and
be deemed repealed [March 31, 2013] APRIL 1, 2018.
  S  5.  This  act  shall take effect immediately and shall be deemed to
have been in full force and effect on and after March 31, 2014.