NY State Senate Bill 2017-S4534

Senate Bill S4534

2017-2018 Legislative Session

Enacts the "employment first choice act" to ensure that an individual with developmental disabilities in a nonintegrated setting shall have the right to remain in such a setting under certain circumstances

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Archive: Last Bill Status - In Senate Committee Mental Health And Developmental Disabilities Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to mental health and developmental disabilities
Feb 16, 2017	referred to mental health and developmental disabilities

co-Sponsors

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2017-S4534 (ACTIVE) - Details

Current Committee:: Senate Mental Health And Developmental Disabilities
Law Section:: Mental Hygiene Law
Laws Affected:: Add §16.02, Ment Hyg L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S6612
2019-2020: S3143
2021-2022: S2182
2023-2024: S3480

2017-S4534 (ACTIVE) - Summary

2017-S4534 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4534

 TITLE OF BILL :  An act to amend the mental hygiene law, in relation
to directing the commissioner of developmental disabilities to
establish a procedure through which persons with developmental
disabilities may choose to remain in a nonintegrated setting

 PURPOSE OR GENERAL IDEA OF BILL :

The purpose of this bill is to preserve the right of individuals with
developmental disabilities to choose to remain in a nonintegrated
setting. The bill also directs the Commissioner of the Office for
People With Developmental Disabilities to modify the State's agreement
on the closure of nonintegrated settings with the Centers for Medicare
and Medicaid Services, to allow for informed choice and to safeguard
the continued receipt of pertinent federal Medicaid funds.

 SUMMARY OF SPECIFIC PROVISIONS :

Section 1 establishes the act to be known as the "Employment First
Choice Act."

Section 2 states the legislative intent of the act, which is to
preserve an individual's right to choose whether to remain in a
nonintegrated setting.

Section 3 adds a new section 16.02 to article 16 of the mental hygiene
law, to direct the Commissioner of the Office for People With
Developmental Disabilities to establish a procedure for granting
accommodations to individuals who choose to remain in a nonintegrated
setting. This section also provides for the continued receipt of
services regardless of the choice of setting.

Section 4 directs the Commissioner of the Office for People With
Developmental Disabilities to resubmit its final New York plan to
increase competitive employment opportunities for people with
developmental disabilities, in order to continue eligibility for
federal funding for prevocational services.

Section 5 establishes the effective date.

 JUSTIFICATION :

According to the New York State Office for People with Developmental
Disabilities' ("OPWDD") report to the legislature pursuant to chapter
60 of the laws of 2014 (the "Report"), New York State plans to fully
eliminate funding for nonintegrated settings, including sheltered
workshops, over the next six years. Therefore, all individuals now in
nonintegrated settings, irrespective of their wishes, will be required
to leave those facilities by 2020 or 2021. Many individuals with
developmental disabilities depend on these settings to socialize, to
earn a paycheck, and to improve and maintain their functional and
vocational skills.

Further, in its Report, OPWDD estimates that only half of the current
approximately 8,000 workshop participants will transition to an
integrated work setting when nonintegrated settings are discontinued.
The remaining participants will likely choose not to join an
integrated work setting because the setting is not appropriate for
their unique needs and does not fit into their individualized service
plan. The disruption and hardship that will be experienced by some
individuals who currently participate in a nonintegrated setting, but
who do not want to transition to any other activity, is alarming.
While these concerns were raised numerous times by public participants
in the twelve community dialogues held by OPWDD in 2014, this issue
was not addressed or resolved in the Report.
This result is contrary to the clear wording of the guiding U.S.
Supreme Court decision in Olmstead v. L.C., which held that states are
required to place individuals with developmental disabilities in
community settings rather than in institutions when, among other
conditions, "the transfer from institutional care to a less
restrictive setting is not opposed by the affected individual..."

New York's rural areas, which extend through much of the State, pose
additional challenges that may further limit an individual's choice,
making the choice to remain in a nonintegrated setting even more
important to preserve. An absence of competitive employment
opportunities may prevent an individual from realizing the choice to
participate in an integrated setting. In addition, and also specific
to rural areas throughout the State, alternatives to employment are
limited, and some individuals may be transferred from a nonintegrated
setting to simply staying at home. As such, individuals who either
cannot obtain integrated employment and would prefer nonintegrated
employment to other alternatives, or who choose to remain in a
nonintegrated setting altogether, are at risk of being divested of
their most meaningful or engaging activity should a nonintegrated
environment be unavailable.

This bill, therefore, preserves the right of individuals with
developmental disabilities to choose to remain in a nonintegrated
setting. The bill also directs the Commissioner of OPWDD to modify the
State's agreement on the closure of nonintegrated settings with the
Centers for Medicare and Medicaid Services, to allow for informed
choice and to safeguard the continued receipt of pertinent federal
Medicaid funds.

Finally, and critically, the bill echoes the intent of the U.S.
Supreme Court's decision in Olmstead v. L.C. as well as the provisions
of the Rhode Island Consent Decree. This landmark agreement between
the U.S. Department of Justice and the State of Rhode Island strongly
encourages integrated and competitive employment, but recognizes the
right of individuals with developmental disabilities who are current
sheltered workshop participants to remain in that setting if they
choose to do so.  Importantly, the bill also mirrors the Rhode Island
Consent Decree's process for making such an informed choice.

 LEGISLATIVE HISTORY :

2016: S.6612 Passed Senate
2015: S.3893-8 Recommitted to Rules

 FISCAL IMPLICATIONS :

Undetermined.

 EFFECTIVE DATE :
This act shall take effect immediately.

2017-S4534 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4534
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             February 16, 2017
                                ___________
 
 Introduced  by Sen. HELMING -- (at request of the Legislative Commission
   on Rural Resources) -- read twice and ordered printed, and when print-
   ed to be committed to the Committee on Mental Health and Developmental
   Disabilities
 
 AN ACT to amend the mental hygiene law, in  relation  to  directing  the
   commissioner  of  developmental  disabilities to establish a procedure
   through which persons with developmental disabilities  may  choose  to
   remain in a nonintegrated setting
 
   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 "employment first choice act".
   §  2.  Legislative  intent. The legislature hereby supports increasing
 access to integrated employment settings for individuals  with  develop-
 mental  disabilities.  The legislature additionally finds, however, that
 the policy to increase integrated  employment  opportunities  shall  not
 preclude  an individual's right to choose either an integrated or nonin-
 tegrated setting in accordance with such individual's  personal  wishes.
 Furthermore, the legislature supports an individual's informed choice to
 remain  in  a  nonintegrated  setting  in order to, among other personal
 priorities, retain friendships, continue their  participation  in  their
 community  as  they  so  choose,  and, in some instances, maintain their
 ability to earn a paycheck.
   The legislature, therefore, finds that individuals with  developmental
 disabilities,  who  currently  participate  in  a nonintegrated setting,
 should be allowed to choose to remain in such a setting. To require such
 individuals to transition out of this chosen environment undermines  the
 guiding  Supreme Court decision in Olmstead v. L.C., which held that the
 Americans with Disabilities Act of 1990 requires placement  of  individ-
 uals  with developmental disabilities in integrated settings rather than
 nonintegrated settings, but only when such a transfer is not opposed  by
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD01548-01-7

 S. 4534                             2
 
 the  affected  individual. The legislature, therefore, declares this act
 to be a priority of  the  state's  actions  affecting  individuals  with
 developmental disabilities.
   §  3.  The mental hygiene law is amended by adding a new section 16.02
 to read as follows:
 § 16.02 INDIVIDUAL'S RIGHT OF CHOICE.
   ANY INDIVIDUAL WITH A DEVELOPMENTAL DISABILITY WHO IS PARTICIPATING IN
 A NONINTEGRATED SETTING INCLUDING, BUT NOT LIMITED TO, A SHELTERED WORK-
 SHOP, AND WHO MAKES AN INFORMED CHOICE  TO  REMAIN  IN  A  NONINTEGRATED
 SETTING  MAY  SEEK  ACCOMMODATION  FROM  THE  COMMISSIONER TO ALLOW SUCH
 PLACEMENT, PROVIDED THAT PENDING SUCH REQUEST THE INDIVIDUAL MAY  REMAIN
 IN THE NONINTEGRATED SETTING. FOR PURPOSES OF THIS SECTION, AN "INFORMED
 CHOICE"  INCLUDES THE INFORMED CHOICE OF AN INDIVIDUAL OR OF AN INDIVID-
 UAL'S PERSONAL REPRESENTATIVE.
   (A) ACCOMMODATIONS SHALL BE GRANTED AT THE DISCRETION OF  THE  COMMIS-
 SIONER,  WHO MAY ALSO REQUIRE THAT THE INDIVIDUAL HAS COMPLETED AT LEAST
 ONE OF THE FOLLOWING:
   (1) PARTICIPATION IN AT LEAST ONE  VOCATIONAL  ASSESSMENT  EVERY  FIVE
 YEARS  IN  ACCORDANCE  WITH REGULATIONS PROMULGATED BY THE COMMISSIONER.
 THE PRIMARY PURPOSE OF A VOCATIONAL ASSESSMENT SHALL BE TO DETERMINE  AN
 INDIVIDUAL'S  INTERESTS, STRENGTHS AND ABILITIES, IN ORDER TO IDENTIFY A
 SUITABLE MATCH BETWEEN  THE  INDIVIDUAL  AND  A  COMPETITIVE  INTEGRATED
 EMPLOYMENT SETTING;
   (2)  COMPLETION  OF  ONE  TRIAL  INTEGRATED WORK EXPERIENCE EVERY FIVE
 YEARS, WHICH CAN INCLUDE ANY WORK EXPERIENCE  WITH  OR  WITHOUT  PAY  IN
 WHICH  THE  INDIVIDUAL WORKS ALONGSIDE NON-DISABLED COWORKERS, CUSTOMERS
 OR PEERS, WITH THE APPROPRIATE SERVICES AND SUPPORTS  FOR  A  SUFFICIENT
 PERIOD  OF  TIME  TO ESTABLISH WHETHER AN INDIVIDUAL'S INTERESTS, SKILLS
 AND ABILITIES ARE WELL-SUITED FOR THE PARTICULAR JOB.  THE  TRIAL  INTE-
 GRATED WORK EXPERIENCE SHALL BE SELECTED THROUGH A PERSON-CENTERED PLAN-
 NING PROCESS AND SHALL BE INDIVIDUALLY TAILORED TO EACH PERSON. ALTERNA-
 TIVELY,  THE COMMISSIONER MAY CONSIDER THE INDIVIDUAL'S DEMONSTRATION OF
 AN INABILITY TO PARTICIPATE IN AN INTEGRATED WORK SETTING DUE TO A DOCU-
 MENTED MEDICAL CONDITION THAT POSES AN IMMEDIATE AND SERIOUS  THREAT  TO
 THE  INDIVIDUAL'S HEALTH OR SAFETY, OR THE HEALTH OR SAFETY OF OTHERS IN
 AN INTEGRATED WORK SETTING;
   (3) RECEIPT OF OUTREACH, EDUCATION AND SUPPORT SERVICES IN  ACCORDANCE
 WITH  REGULATIONS  PROMULGATED  BY THE COMMISSIONER. OUTREACH, EDUCATION
 AND SUPPORT SERVICES ARE SERVICES DESIGNED TO EXPLAIN  THE  BENEFITS  OF
 SUPPORTED  EMPLOYMENT,  AS  DEFINED IN SUBDIVISION ELEVEN OF SECTION ONE
 THOUSAND TWO OF THE EDUCATION LAW, THAT ADDRESS CONCERNS OF FAMILIES AND
 PERCEIVED OBSTACLES TO PARTICIPATION,  AND  ARE  DESIGNED  TO  ENCOURAGE
 INDIVIDUALS  IN  DAY  ACTIVITY  SERVICE PROGRAMS, INCLUDING IN SHELTERED
 WORKSHOPS AND FACILITY-BASED DAY PROGRAMS, AND THEIR  FAMILIES  TO  SEEK
 SUPPORTED  EMPLOYMENT  SERVICES,  AS DEFINED UNDER SUBDIVISION TWELVE OF
 SECTION ONE THOUSAND TWO OF THE EDUCATION LAW; OR
   (4) INVOLVEMENT IN A BENEFITS COUNSELING  CONSULTATION  IN  ACCORDANCE
 WITH  REGULATIONS  PROMULGATED BY THE COMMISSIONER. A BENEFIT COUNSELING
 CONSULTATION SHALL PROVIDE INFORMATION TO THE INDIVIDUAL AND HIS OR  HER
 FAMILY OR GUARDIAN ABOUT THE IMPACT OF EARNED INCOME ON THE INDIVIDUAL'S
 PUBLIC BENEFITS.
   (B)  THE OFFICE SHALL ENSURE THAT INDIVIDUALS WHO ARE GRANTED ACCOMMO-
 DATION TO PARTICIPATE IN  A  NONINTEGRATED  SETTING  SHALL  CONTINUE  TO
 RECEIVE  SERVICES  AND ANY ADDITIONAL SERVICES THE OFFICE DETERMINES ARE
 NECESSARY TO ENABLE THE INDIVIDUAL'S  MEANINGFUL  PARTICIPATION  IN  THE
 CHOSEN SETTING.

 S. 4534                             3
 
   (C) THE PROCEDURES FOR OBTAINING ACCOMMODATION TO REMAIN IN A NONINTE-
 GRATED  SETTING  SHALL  NOT SUPERSEDE NOR BAR THE INDIVIDUAL'S CHOICE TO
 REMAIN IN A NONINTEGRATED SETTING.
   (D)  THE  ACCOMMODATION TO REMAIN IN A NONINTEGRATED SETTING SHALL NOT
 DIMINISH THE INDIVIDUAL'S ELIGIBILITY  FOR  RECEIPT  OF  SERVICES  UNDER
 TITLE  ELEVEN OF ARTICLE FIVE OF THE SOCIAL SERVICES LAW, AND SUCH INDI-
 VIDUAL'S ELIGIBILITY TO RECEIVE SUCH  SERVICES  SHALL  BE  SUBSTANTIALLY
 SIMILAR  TO  BENEFITS  THAT  WOULD HAVE BEEN RECEIVED HAD THE INDIVIDUAL
 CHOSEN TO PARTICIPATE IN AN INTEGRATED SETTING.
   (E) THE COMMISSIONER IS AUTHORIZED TO ISSUE, AMEND OR REPEAL ANY REGU-
 LATIONS AS NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS SECTION.
   (F) THE COMMISSIONER, IN CONSULTATION WITH  STAKEHOLDERS,  SHALL  TAKE
 SUCH  ACTIONS  AS  SHALL BE NECESSARY TO COMPLY WITH FEDERAL LAW, OBTAIN
 FEDERAL FUNDING, AND ASSIST WORK SETTINGS TO REMAIN ELIGIBLE FOR FEDERAL
 FUNDING, IN ORDER TO ENABLE EACH INDIVIDUAL'S CHOICE, FOR THE PURPOSE OF
 THIS SECTION, ON AND AFTER MAY FIRST, TWO THOUSAND TWENTY-ONE.
   § 4. This act shall take effect immediately.

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Senate Bill S4534

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Sponsored By

Pamela Helming

Archive: Last Bill Status - In Senate Committee Mental Health And Developmental Disabilities Committee

co-Sponsors

Catharine Young

Fred Akshar

Patrick M. Gallivan

Kathleen A. Marchione

2017-S4534 (ACTIVE) - Details

2017-S4534 (ACTIVE) - Summary

2017-S4534 (ACTIVE) - Sponsor Memo

2017-S4534 (ACTIVE) - Bill Text download pdf

Comments