S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5391
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 16, 2021
                                ___________
 
 Introduced by M. of A. GALLAHAN -- read once and referred to the Commit-
   tee on People with 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.
                                                            LBD04618-01-1
              

 A. 5391                             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.

 A. 5391                             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-FIVE.
   § 4. This act shall take effect immediately.