S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3897
 
                        2025-2026 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 30, 2025
                                ___________
 
 Introduced by M. of A. SIMON, SEAWRIGHT -- read once and referred to the
   Committee on Judiciary
 
 AN  ACT  to  amend  the  mental  hygiene law, in relation to due process
   procedures for all adults with developmental disabilities
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as the "protection
 of adults with developmental disabilities act".
   §  2.  Legislative findings and intent. Certain federal and state laws
 and regulations currently provide various due  process  protections  for
 certain  categories  of  persons  with developmental disabilities.   For
 example,  the  federal  Individuals  with  Disabilities  Education   Act
 provides  a  child or parents of a child with a disability important due
 process protections, including the right  to  an  impartial  hearing  to
 challenge  a determination regarding the appropriate setting for a child
 with a disability. New York state also provides substantial due  process
 protections for the parents of a child with a disability who needs resi-
 dential care while this child is in school.
   However, when a developmentally disabled individual reaches the age of
 twenty-one,  their  due  process protections become significantly dimin-
 ished or, in some cases, end completely.   Specifically, those  develop-
 mentally disabled adults in transitional care who reach the age of twen-
 ty-one  on  or before June 30, 1996 have minimal due process protections
 pursuant to section 13.38 of the  mental  hygiene  law,  and  those  who
 reached  age  twenty-one on or after July 1, 1996 receive no due process
 protections. Some of  New  York's  most  vulnerable  adult  populations,
 including  those  who  remain  continuously disabled and continuously in
 need of residential or other forms of  care,  thus  lose  important  due
 process protections simply because of their age.
   The  legislature  recognizes  that inappropriate or ineffective place-
 ments and/or services for persons with  developmental  disabilities  can
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06454-01-5
              

 A. 3897                             2
 
 have  devastating  effects  for those persons impacted, including abuse,
 self-harm, improper medication or even death.  Additionally, the  legis-
 lature  recognizes the harm a person with developmental disabilities can
 suffer from the disruption to such person with development disabilities'
 current  treatment  needs,  home  life and familiar surroundings that an
 inappropriate change in placement, or an improper  change  in  services,
 entails.  Moreover,  it  is  increasingly the policy of the state of New
 York to afford persons with disabilities the opportunity to  participate
 in  their  treatment  and residential placement decisions, and to obtain
 their or their guardian's consent prior to any changes of placement.
   The legislature hereby finds that New York state must ensure that  all
 developmentally  disabled  adults  are  afforded necessary and basic due
 process protections, and fair and meaningful  due  process  proceedings,
 relating  to  proposed  changes  in  placement,  or  proposed changes in
 services rendered, to those developmentally disabled  adults  under  the
 care  of  New  York state agencies to ensure that appropriate, effective
 treatment and placements are provided for this highly  vulnerable  adult
 population.
   In order to ensure that New York state is providing the most appropri-
 ate  setting  and  services for all persons with developmental disabili-
 ties, the legislature hereby finds that it is incumbent  upon  New  York
 state  to  institute  uniform  minimum  due  process protections for all
 persons with developmental disabilities age twenty-one and older.  These
 protections  provide,  in  part,  for  fair  and  meaningful due process
 proceedings relating to a proposed change of  placement  or  a  proposed
 change  in  services by the offices of the department of mental hygiene,
 and are intended to supplement and strengthen the patchwork  of  various
 protections  for  adults  with developmental disabilities in place under
 existing laws.
   § 3. The mental hygiene law is amended by adding a new  section  13.36
 to read as follows:
 § 13.36 PROTECTION OF ADULTS WITH DEVELOPMENTAL DISABILITIES.
   1.  DEFINITIONS.  AS  USED IN THIS SECTION, UNLESS OTHERWISE EXPRESSLY
 STATED OR UNLESS THE CONTEXT OTHERWISE REQUIRES:
   (A) "ADULTS WITH DEVELOPMENTAL DISABILITIES" MEANS ALL PERSONS WITH  A
 MENTAL DISABILITY, AS THAT TERM IS DEFINED IN SECTION 1.03 OF THIS CHAP-
 TER, AND WHO ARE TWENTY-ONE YEARS OLD OR OLDER, OR THE GUARDIAN OR GUAR-
 DIANS  OR  REPRESENTATIVE  OR REPRESENTATIVES OF ANY SUCH PERSON, IF ANY
 EXIST.
   (B) "SERVICES" MEANS ANY AND ALL CARE AND TREATMENT RENDERED TO ADULTS
 WITH DEVELOPMENTAL DISABILITIES (I) WHO ARE UNDER THE  CARE,  AUTHORITY,
 JURISDICTION,  SUPERVISION  OR  CONTROL  OF  THE  VARIOUS OFFICES OF THE
 DEPARTMENT, AND/OR (II) WHICH ARE FUNDED IN ANY PART BY  ANY  OFFICE  OF
 THE DEPARTMENT. AS USED IN THIS SECTION, "SERVICES" INCLUDES, BUT IS NOT
 LIMITED  TO, "SERVICES FOR THE DEVELOPMENTALLY DISABLED" AS THAT TERM IS
 DEFINED IN SECTION 1.03 OF THIS CHAPTER, AS WELL AS ANY OTHER  TREATMENT
 OF ANY FORM OR TYPE.
   (C)  "TRIGGERING  EVENT"  MEANS ANY PROPOSED ACTION, OR DENIAL, BY THE
 DEPARTMENT OR ANY OF ITS OFFICES, AS DESCRIBED IN  SUBPARAGRAPH  (I)  OF
 PARAGRAPH (A) OR SUBPARAGRAPH (I) OF PARAGRAPH (B) OF SUBDIVISION TWO OF
 THIS SECTION.
   2.  ROLE OF DEPARTMENT; TRIGGERING EVENTS. THE DEPARTMENT, THROUGH ITS
 VARIOUS OFFICES AND IN CONJUNCTION WITH ANY OTHER NECESSARY STATE AGENCY
 OR OFFICE, WHERE APPLICABLE, SHALL  DEVELOP,  IMPLEMENT,  AND  ENSURE  A
 SYSTEM  OF  MEANINGFUL  DUE PROCESS PROTECTIONS FOR ADULTS WITH DEVELOP-
 MENTAL DISABILITIES, AND SHALL DEVELOP AND PROMULGATE REGULATIONS, POLI-
 A. 3897                             3
 
 CIES AND PROCEDURES NECESSARY TO RESOLVE OBJECTIONS BY OR ON  BEHALF  OF
 ADULTS WITH DEVELOPMENTAL DISABILITIES IN CONFORMANCE WITH THIS SECTION.
 SUCH  DUE  PROCESS PROTECTIONS SHALL BE AFFORDED TO ADULTS WITH DEVELOP-
 MENTAL DISABILITIES WHEN:
   (A) ANY OFFICE OF THE DEPARTMENT INITIATES A PROPOSAL WHICH MAY RESULT
 IN:
   (I)  A  CHANGE  IN PLACEMENT FOR AN ADULT WITH DEVELOPMENTAL DISABILI-
 TIES, INCLUDING ANY PROPOSED DISCHARGE OR  RELOCATION  FROM  A  FACILITY
 WHERE SERVICES ARE BEING PROVIDED; OR
   (II)  A  REDUCTION,  SUSPENSION OR TERMINATION OF SPECIFIC SERVICES OR
 FUNDING WHICH IS BEING PROVIDED TO AN ADULT WITH DEVELOPMENTAL DISABILI-
 TIES PURSUANT TO AN INDIVIDUALIZED TREATMENT PLAN, INCLUDING AN INDIVID-
 UALIZED SERVICES PLAN; AND,
   (III) A TIMELY OBJECTION TO SUCH PROPOSAL OR PROPOSALS AND  A  REQUEST
 FOR  AN  ADMINISTRATIVE  APPEAL IS MADE BY OR ON BEHALF OF AN ADULT WITH
 DEVELOPMENTAL DISABILITIES; OR,
   (B) ANY OFFICE OF THE DEPARTMENT:
   (I) DENIES AN ADULT WITH DEVELOPMENTAL DISABILITIES SPECIFIC  SERVICES
 OR  A SPECIFIC PLACEMENT WHICH IS RECOMMENDED FOR THAT INDIVIDUAL PURSU-
 ANT TO AN INDIVIDUALIZED TREATMENT  PLAN,  INCLUDING  AN  INDIVIDUALIZED
 SERVICES PLAN; AND,
   (II) A TIMELY OBJECTION TO SUCH DENIAL OR DENIALS AND A REQUEST FOR AN
 ADMINISTRATIVE  APPEAL IS MADE BY OR ON BEHALF OF AN ADULT WITH DEVELOP-
 MENTAL DISABILITIES.
   3. MINIMUM DUE PROCESS PROTECTIONS. DUE PROCESS PROTECTIONS FOR ADULTS
 WITH DEVELOPMENTAL DISABILITIES IMPLEMENTED BY THE  DEPARTMENT  AND  ITS
 OFFICES  SHALL INCLUDE, AT A MINIMUM, THE RIGHTS OF ADULTS WITH DEVELOP-
 MENTAL DISABILITIES:
   (A) TO BE PROVIDED WITH ADVANCE WRITTEN NOTICE BY THE RELEVANT  OFFICE
 OF  THE  DEPARTMENT  OF  ANY  TRIGGERING EVENT, WHETHER IT BE A PROPOSED
 ACTION OR A DENIAL BY SUCH OFFICE OF THE DEPARTMENT, WHICH NOTICE  SHALL
 SET  FORTH  ALL  REASONS  AND  DOCUMENTATION,  IF ANY, IN SUPPORT OF THE
 DETERMINATION BY THE RELEVANT OFFICE OF THE DEPARTMENT, AND WHICH  SHALL
 SPECIFICALLY  ADVISE AN ADULT WITH DEVELOPMENTAL DISABILITIES AS TO SUCH
 ADULT WITH DEVELOPMENTAL DISABILITIES' RIGHT TO FORMALLY OBJECT IN WRIT-
 ING AND TO REQUEST AN ADMINISTRATIVE HEARING  WITHIN  THIRTY    DAYS  OF
 RECEIPT  OF NOTICE OF THE TRIGGERING EVENT, AND AS TO THEIR OTHER RIGHTS
 AS PROVIDED WITHIN THIS SECTION;
   (B) TO BE REPRESENTED IN ANY PROCEEDINGS BEFORE THE RELEVANT OFFICE OF
 THE DEPARTMENT BY ANY PERSON INCLUDING, BUT NOT LIMITED  TO,  A  PARENT,
 GUARDIAN,  CORRESPONDENT, ADVOCATE, LEGAL REPRESENTATIVE, THEMSELVES, OR
 ANY OTHER PERSON OR REPRESENTATIVE;
   (C) TO REQUEST, AND TO BE PROVIDED WITH, AN OPPORTUNITY TO PRESENT, IN
 A MEANINGFUL FASHION AND AT A REASONABLE TIME  NOT  LESS  THAN  FOURTEEN
 DAYS  FROM  THE  DATE A WRITTEN REQUEST FOR AN ADMINISTRATIVE HEARING IS
 MADE, ANY OBJECTION TO A TRIGGERING EVENT BY THE RELEVANT OFFICE OF  THE
 DEPARTMENT TO AN IMPARTIAL DECISION MAKER IN THE CONTEXT OF AN EVIDENTI-
 ARY HEARING;
   (D)  TO  DISCOVER  AND  OBTAIN,  AND  HAVE A MEANINGFUL OPPORTUNITY TO
 REVIEW IN ADVANCE OF THE EVIDENTIARY HEARING, ANY DOCUMENTS TO  BE  USED
 BY THE RELEVANT OFFICE OF THE DEPARTMENT IN SUPPORT OF ITS DETERMINATION
 AT SUCH HEARING;
   (E)  TO  PRESENT  AND  ELICIT EVIDENCE AND WITNESSES, AND CONFRONT AND
 CROSS-EXAMINE EVIDENCE AND WITNESSES AT SUCH EVIDENTIARY HEARING;
   (F) TO OBTAIN A REASONABLY PROMPT WRITTEN DETERMINATION BY THE  IMPAR-
 TIAL HEARING OFFICER, WHICH SHALL BE BASED ON THE EVIDENCE AND TESTIMONY
 A. 3897                             4
 
 INTRODUCED  AND  RENDERED  AT THE HEARING, AND IN WHICH IT IS DETERMINED
 WHETHER THE TRIGGERING EVENT TAKEN OR PROPOSED BY THE RELEVANT OFFICE OF
 THE DEPARTMENT, IF ULTIMATELY ALLOWED, WOULD BE (I) IN THE OVERALL BEST,
 INDIVIDUAL  INTERESTS OF THE ADULT WITH DEVELOPMENTAL DISABILITIES, (II)
 RESULT IN APPROPRIATE, EFFECTIVE  SERVICES  AND/OR  PLACEMENT  FOR  SUCH
 INDIVIDUAL, AND (III) SO AS TO BEST ENABLE THEIR PERSONAL DEVELOPMENT;
   (G) TO APPEAL, IF NECESSARY, THE WRITTEN DETERMINATION RENDERED BY THE
 IMPARTIAL  HEARING OFFICER TO THE COMMISSIONER OF THE RELEVANT OFFICE OF
 THE DEPARTMENT, WHO MAY REMAND THE MATTER TO  THE  HEARING  OFFICER  FOR
 FURTHER REVIEW OR FINDINGS, IF NECESSARY, AND WHO SHALL, AFTER REVIEW OF
 THE MATTER, ISSUE A FURTHER WRITTEN DETERMINATION WHICH SHALL BE BINDING
 ON  THE  RELEVANT  OFFICE  OF THE DEPARTMENT AS ITS FINAL ADMINISTRATIVE
 DETERMINATION;
   (H) TO APPEAL, IF NECESSARY, THE FINAL WRITTEN DETERMINATION  RENDERED
 BY  THE  COMMISSIONER ON BEHALF OF THE RELEVANT OFFICE OF THE DEPARTMENT
 BY WAY OF A PROCEEDING PURSUANT TO ARTICLE SEVENTY-EIGHT  OF  THE  CIVIL
 PRACTICE LAW AND RULES; AND
   (I)  TO  CONTINUED SERVICES, PROGRAMMING, FUNDING AND PLACEMENT BY THE
 RELEVANT OFFICE OF THE DEPARTMENT, OF THE SAME LEVEL AND  TYPE  AS  THAT
 PROVIDED BY SUCH OFFICE PRIOR TO THE TRIGGERING EVENT, DURING THE PERIOD
 THAT  AN OBJECTION BY AN ADULT WITH DEVELOPMENTAL DISABILITIES IS UNDER-
 GOING ADMINISTRATIVE AND/OR APPELLATE REVIEW, UNLESS AS OTHERWISE AGREED
 TO BY SUCH OFFICE AND SUCH ADULT WITH DEVELOPMENTAL DISABILITIES OR SUCH
 ADULT WITH DEVELOPMENTAL DISABILITIES' GUARDIAN OR REPRESENTATIVE.
   4. NOTHING IN THIS  SECTION  SHALL  PREVENT  THE  DEPARTMENT  AND  ITS
 OFFICES  FROM  DESIGNING  AND IMPLEMENTING DISPUTE RESOLUTION MECHANISMS
 WHICH ARE NOT INCONSISTENT WITH THE DUE PROCESS PROTECTIONS  FOR  ADULTS
 WITH  DEVELOPMENTAL  DISABILITIES  SET  FORTH BY THIS SECTION, INCLUDING
 EXPEDITED, OR INFORMAL (NON-BINDING), DISPUTE RESOLUTION MECHANISMS THAT
 MAY BE AGREED TO BY THE RELEVANT OFFICE OF THE DEPARTMENT AND SUCH ADULT
 WITH DEVELOPMENTAL DISABILITIES OR SUCH ADULT WITH  DEVELOPMENTAL  DISA-
 BILITIES' GUARDIAN OR REPRESENTATIVE.
   5.  THE  MINIMUM DUE PROCESS PROTECTIONS FOR ADULTS WITH DEVELOPMENTAL
 DISABILITIES SET FORTH WITHIN THIS SECTION SHALL SERVE TO SUPPLEMENT AND
 REINFORCE ANY AND ALL  OTHER  LAWS  OR  AUTHORITIES  WHICH  PROVIDE  FOR
 CERTAIN  RIGHTS  FOR  THE  DEVELOPMENTALLY  DISABLED  ADULT  POPULATION,
 INCLUDING THE STATE ADMINISTRATIVE PROCEDURE ACT OR  APPLICABLE  FEDERAL
 REQUIREMENTS,  IF  ANY,  PERTAINING  TO DUE PROCESS PROTECTIONS FOR SUCH
 INDIVIDUALS. IN THE ABSENCE OF REGULATIONS, THE PROVISIONS OF THE  STATE
 ADMINISTRATIVE PROCEDURE ACT SHALL CONTROL THE HEARING PROCESS WHERE NOT
 INCONSISTENT  WITH  THE  PROVISIONS  OF  THIS  SECTION.  THE DEPARTMENT,
 THROUGH ITS OFFICES, SHALL TAKE ALL  ACTIONS  NECESSARY  TO  ENSURE  THE
 CONTINUED  COMPLIANCE  WITH  ANY  APPLICABLE  FEDERAL AUTHORITIES TO THE
 EXTENT THAT ANY PROVISION OF THIS SECTION MAY BE DEEMED TO CONFLICT WITH
 SUCH AUTHORITIES.
   § 4. This act shall take effect immediately.