senate Bill S3078

Relates to the discharge of residents of a community residence

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 08 / Feb / 2011
    • REFERRED TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES
  • 06 / Jun / 2011
    • 1ST REPORT CAL.1002
  • 07 / Jun / 2011
    • 2ND REPORT CAL.
  • 13 / Jun / 2011
    • ADVANCED TO THIRD READING
  • 16 / Jun / 2011
    • PASSED SENATE
  • 16 / Jun / 2011
    • DELIVERED TO ASSEMBLY
  • 16 / Jun / 2011
    • REFERRED TO MENTAL HEALTH
  • 04 / Jan / 2012
    • DIED IN ASSEMBLY
  • 04 / Jan / 2012
    • RETURNED TO SENATE
  • 04 / Jan / 2012
    • REFERRED TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES
  • 14 / Mar / 2012
    • 1ST REPORT CAL.354
  • 15 / Mar / 2012
    • 2ND REPORT CAL.
  • 19 / Mar / 2012
    • ADVANCED TO THIRD READING
  • 25 / Apr / 2012
    • PASSED SENATE
  • 25 / Apr / 2012
    • DELIVERED TO ASSEMBLY
  • 25 / Apr / 2012
    • REFERRED TO MENTAL HEALTH

Summary

Relates to the discharge of residents of a community residence; provides that nothing shall be deemed construed as creating a relationship of landlord and tenant between an operator of a community residence and a resident; defines community residence.

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Bill Details

See Assembly Version of this Bill:
A8472
Versions:
S3078
Legislative Cycle:
2011-2012
Current Committee:
Law Section:
Mental Hygiene Law
Laws Affected:
Amd §§41.33, 41.41 & 41.44, Ment Hyg L; add §713-b, RPAP L
Versions Introduced in 2009-2010 Legislative Cycle:
S3486, S3486

Sponsor Memo

BILL NUMBER:S3078 REVISED 06/06/11

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 People with Developmental Disabilities (OPWDD) 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 OPWDD 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 OPWDD or OMH, or terminations of such residency
agreements, shall be made in accordance with procedures established
by OMH or OPWDD, as applicable, in their respective governing
statutes and implementing regulations.

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

LEGISLATIVE HISTORY:
2009/10: S.3486 - Died in Mental Health and Developmental Disabilities.
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 OPWDD,
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 OPWDD 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 OPWDD
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.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3078

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 8, 2011
                               ___________

Introduced  by  Sen. HUNTLEY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Mental Health and Develop-
  mental Disabilities

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

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 41.33 of the mental  hygiene  law,  as  amended  by
chapter 298 of the laws of 1984, is amended to read as follows:
S 41.33 Community residences for the mentally disabled.
  The  commissioner shall have the power to operate or cause to be oper-
ated  community  residential  facilities  for  the  mentally   disabled.
NOTWITHSTANDING ANY CONTRARY PROVISION OF LAW, NOTHING CONTAINED IN THIS
SECTION  SHALL  BE  CONSTRUED AS CREATING A RELATIONSHIP OF LANDLORD AND
TENANT BETWEEN AN OPERATOR OF A COMMUNITY RESIDENCE AND A RESIDENT THER-
EOF. Within amounts available therefor and subject to regulations estab-
lished by him OR HER and notwithstanding any other  provisions  of  this
article,  he  OR  SHE  may provide state aid to local governments and to
voluntary agencies (i) in an amount not  to  exceed  fifty  percent  for
acquisition or construction of such community residences, and (ii) in an
amount  not  to  exceed  fifty  percent for the total operating costs of
community residences except community residences for the  mentally  ill.
Such  state  aid to voluntary agencies shall not be granted unless there
has been prior approval of the proposed community residence by the local
governmental unit.
  S 2.  Section 41.41 of the mental hygiene law is amended by  adding  a
new subdivision 3 to read as follows:
  3.    NOTWITHSTANDING ANY CONTRARY PROVISION OF LAW, NOTHING CONTAINED
IN THIS SECTION SHALL BE CONSTRUED AS CREATING A RELATIONSHIP  OF  LAND-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08708-01-1

S. 3078                             2

LORD AND TENANT BETWEEN AN OPERATOR OF A COMMUNITY RESIDENCE AND A RESI-
DENT THEREOF.
  S  3.  Section  41.44 of the mental hygiene law is amended by adding a
new subdivision (h) to read as follows:
  (H) NOTWITHSTANDING ANY CONTRARY PROVISION OF LAW,  NOTHING  CONTAINED
IN  THIS  SECTION SHALL BE CONSTRUED AS CREATING A RELATIONSHIP OF LAND-
LORD AND TENANT BETWEEN AN OPERATOR OF A COMMUNITY RESIDENCE AND A RESI-
DENT THEREOF.
  S 4. The real property actions  and  proceedings  law  is  amended  by
adding a new section 713-b to read as follows:
  S  713-B.  SPECIAL REQUIREMENTS FOR DISCHARGE OF RESIDENTS FROM COMMU-
NITY RESIDENCES OR TERMINATION OF RESIDENCY AGREEMENTS.  1. FOR PURPOSES
OF THIS SECTION, A "COMMUNITY RESIDENCE" SHALL MEAN  A  COMMUNITY  RESI-
DENCE  AS  DEFINED  IN  SUBDIVISION  TWENTY-EIGHT OF SECTION 1.03 OF THE
MENTAL HYGIENE LAW.
  2. NOTWITHSTANDING ANY CONTRARY PROVISIONS OF LAW,  NOTHING  CONTAINED
IN  THIS  ARTICLE SHALL BE CONSTRUED AS CREATING A RELATIONSHIP OF LAND-
LORD AND TENANT BETWEEN AN OPERATOR OF A COMMUNITY RESIDENCE AND A RESI-
DENT THEREOF, AND DISCHARGE OF A RESIDENT FROM A COMMUNITY RESIDENCE  OR
TERMINATION  OF  A  RESIDENCY  AGREEMENT SHALL BE IN ACCORDANCE WITH THE
LAWS, REGULATIONS AND PROCEDURES OF THE OFFICE OF MENTAL HEALTH  OR  THE
OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, AS APPLICABLE.
  S 5. This act shall take effect immediately.

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