NY State Senate Bill 2019-S3143

Senate Bill S3143

2019-2020 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 08, 2020	referred to mental health and developmental disabilities
Feb 04, 2019	referred to mental health and developmental disabilities

co-Sponsors

2019-S3143 (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
2017-2018: S4534
2021-2022: S2182
2023-2024: S3480

2019-S3143 (ACTIVE) - Summary

2019-S3143 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S3143

SPONSOR: HELMING
 
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:

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 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 Develop-
mental 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 Devel-
opmental Disabilities to resubmit its final New York plan to increase
competitive employment opportunities for people with developmental disa-
bilities, 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 elimi-
nate 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 disabil-
ities 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 inte-
grated 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 transi-
tion 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 commu-
nity 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 impor-
tant 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 inte-
grated employment and would prefer nonintegrated employment to other
alternatives, or who choose to remain in a nonintegrated setting alto-
gether, are at risk of being divested of their most meaningful or engag-
ing activity should a nonintegrated environment be unavailable.

This bill, therefore, preserves the right of individuals with develop-
mental disabilities to choose to remain in a nonintegrated setting. The
bill also directs the Commissioner of OPWDD to modify the State's agree-
ment on the closure of nonintegrated settings with the Centers for Medi-
care and Medicaid Services, to allow for informed choice and to safe-
guard 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 indi-
viduals with developmental disabilities who are current sheltered work-
shop 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.

 
PRIOR LEGISLATIVE HISTORY:

2017-2018: S.4534 Referred to Mental Health and Developmental Disabili-
ties
2016: S.6612 Passed Senate
2015: S.3893-8 Recommitted to Rules

 
FISCAL IMPLICATIONS:

Undetermined.
 
EFFECTIVE DATE:
This act shall take effect immediately.

2019-S3143 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3143
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             February 4, 2019
                                ___________
 
 Introduced  by  Sens. HELMING, AKSHAR, GALLIVAN, YOUNG -- read twice and
   ordered printed, and when printed 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
 the affected individual. The legislature, therefore, declares  this  act
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD05115-01-9

 S. 3143                             2
 
 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. 3143                             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-THREE.
   § 4. This act shall take effect immediately.

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Senate Bill S3143

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Sponsored By

Pamela Helming