BILL NUMBER:  S3486

 TITLE OF BILL :
An act to amend the mental hygiene law and the real property actions
and proceedings law, in relation to discharge of residents of a
community residence

 PURPOSE :

This bill clarifies that the discharge of a resident from a community
residence licensed or operated by the Office of Mental Health (OMH) or
the Office of Mental Retardation and Developmental Disabilities
(OMRDD) shall be governed by the regulations of those agencies,
respectively, and shall not be considered to involve a relationship of
landlord and tenant.

 SUMMARY OF PROVISIONS :

Section 1 of the bill would amend Mental Hygiene Law (MHL) § 41.33 to
clarify that there is no landlord-tenant relationship between the
operator of a community residence for the mentally disabled and a
resident.

Section 2 of the bill would amend MHL § 41.41 to clarify that there is
no landlord-tenant relationship between the operator of a community
residence licensed or operated by OMRDD and a resident of such
              

community residence.

Section 3 of the bill would amend MHL § 41.44 to clarify that there is
no landlord-tenant relationship between the operator of a community
residence licensed or operated by OMH and a resident of such community
residence.

Section 4 of the bill would add a new Section 713-b to the Real
Property Actions and Proceedings Law (RPAPL) clarifying that
discharges of residents from community residences licensed or operated
by OMRDD or OMH, or terminations of such residency agreements, shall
be made in accordance with procedures established by OMH or OMRDD, as
applicable, in their respective governing statutes and implementing
regulations.

Section 5 of the bill would provide for an immediate effective date.

 EXISTING LAW :

Community residences licensed or operated by OMH and OMRDD are
treatment programs, established and governed by Article 41 of the
Mental Hygiene Law.

The RPAPL establishes procedures to be followed when tenants are
evicted from housing by their landlords.

 LEGISLATIVE HISTORY :
In 2008, this bill passed the Senate (S.4145) and was referred to the
Assembly Mental Health Committee (A.8927).

 STATEMENT OF SUPPORT :

A "community residence," as such term is defined by MHL § 1.03(28), is
any facility operated by or subject to licensure by OMH or OMRDD,
which provides a supervised residence or residential respite services
for mentally disabled persons. Such residences also provide a homelike
environment and room, board and responsible supervision for the
habilitation or rehabilitation of mentally disabled persons as part of
an overall service delivery system. This proposal would clarify that
the relationship of a resident of a community residence and the
program operator is a clinical treatment relationship, not that of
landlord and tenant.

In OMH programs, community residences are considered clinical
treatment programs. In OMRDD programs, community residences are part
of the overall program of services and supports provided to the person
with a disability which is aimed at integrating the person into
society as much as possible. Admission to, and discharge from, these
programs are grounded in clinical determinations. However, in
recognition of the fact that these programs provide room and board for
residents of the program, current regulations of OMH and OMRDD provide
appropriate due process protections, including notice and an
opportunity to be heard, in cases where non-hospitalized residents are
discharged prior to being discharge-ready and wish to dispute their
discharge. These due process protections do not require eviction
proceedings through housing court, because the relationship between a
resident and the program is a clinical treatment relationship, nor a
landlord-tenant relationship.

Courts have long urged action by the Legislature to clarify the
residential rights of persons with mental disabilities who have been
admitted to a treatment facility such as a community residence (see
Metalsky v. Mercy Haven, 156 Misc.2d 558 (Sup. Ct.  Nassau Cty. 1993);
Wims v. Abraham Residence III, 184 Misc2d 271 (N.Y.C. Civ. Ct.
2000)). In isolated cases such as these, courts have sought to apply
statutory requirements appropriate to situations involving a
landlord-tenant relationship to treatment facility discharges.
However, the Court in Wims noted that there would be "far-reaching
ramifications on residential rehabilitation programs throughout the
State" that would follow from a treatment facility provider's
obligation "to commence legal proceedings to recover possession of the
premises upon a resident's termination from a program" (id. at 275).

The consequences of applying landlord-tenant requirements to community
residence programs could be detrimental to persons with mental
illness, mental retardation, or developmental disabilities. If
disputed, discharges from community residences would not be made based
upon appropriate clinical determinations, but rather by obtaining an
order of eviction through the housing court. This could result in
inappropriate clinical outcomes harmful to persons with mental
disabilities. It also could be very costly to individual providers,
and could have a negative impact on the continued availability of
these programs for many persons with mental disabilities, particularly
those who have higher service needs.

 BUDGET IMPLICATIONS :

There is no fiscal impact associated with this proposal.

 EFFECTIVE DATE :
This bill would take effect immediately upon enactment.