senate Bill S7374

Signed By Governor
2013-2014 Legislative Session

Relates to transitional care

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Archive: Last Bill Status - Signed by Governor


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Nov 21, 2014 approval memo.13
signed chap.478
Nov 10, 2014 delivered to governor
Jun 19, 2014 returned to senate
passed assembly
ordered to third reading rules cal.565
substituted for a9729
Jun 18, 2014 referred to mental health
delivered to assembly
passed senate
ordered to third reading cal.1541
committee discharged and committed to rules
May 14, 2014 referred to mental health and developmental disabilities

Votes

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Co-Sponsors

S7374 - Bill Details

See Assembly Version of this Bill:
A9729
Law Section:
Mental Hygiene Law
Laws Affected:
Amd ยงยง13.37-a & 13.38, Ment Hyg L

S7374 - Bill Texts

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Relates to transitional care.

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BILL NUMBER:S7374

TITLE OF BILL: An act to amend the mental hygiene law, in relation to
transitional care

PURPOSE OR GENERAL IDEA OF BILL:

This bill provides the parent(s) or guardian(s) of an adult with
developmental disabilities due process protections, including the
right to an impartial hearing to challenge the determination regarding
the appropriate setting for that individual. Under current law, due
process protections are afforded to the parents of children with
developmental disabilities who need residential care while they are in
school. However, those protections are severely curtailed for those
individuals who completed the school year in which they reach age
twenty-one before July 1, 1996, and eliminated completely for those
who "aged out" after July 1, 1996. This bill would help to ensure
appropriate placement of people with developmental disabilities by
affording them with due process rights after they turn 21.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1: Amends section 13.37-a of the mental hygiene law by
redefining transitional care such that all those who are disabled and
in need of residential care are treated equally, regardless of whether
they "aged out" prior to July 1, 1996 or after.

Section 2: Amends section 13.38-a of the mental hygiene law to apply
to all persons who are at the age or time to first qualify for
transitional care.

Section 3: Amends section 13.38-e of the mental hygiene law to provide
that upon the determination that a person who is receiving
transitional care can be appropriately cared for in an available adult
care facility approved by the office, the office shall notify the
person, the person's guardian, by certified mail, return receipt
requested. The person or the person's guardian or a qualified person
may then make a due process administrative appeal within 30 days of
the date of notification. Then an administrative appeal, consistent
with the State Administrative Procedure Act, will review the case and
make a determination as to the appropriateness of the proposed
placement. The decision is subject to judicial review under article 78
of the CPLR.

Section 4: Sets effective date (immediately).

JUSTIFICATION:

The Individuals with Disabilities Education Act (IDEA) gives the
parent(s) of a disabled child the right to a due process hearing to
challenge a determination regarding the most appropriate setting for a
disabled child. New York State provides protections for disabled
children and their parents while they are in school. Similarly, OPWDD
regulations provide due process protections for all OPWDD clients.

Developmentally disabled persons who reach the age of twenty-one and
remain continuously disabled and continuously in need of residential


care are afforded minimal or no due process protections. Pursuant to
section 13.38 of the mental hygiene law, those who reach age
twenty-one on or before June 30, 1996 may object to a change in
placement proposed by the office, by appealing to the commissioner of
the office. Effectively, parents are forced to appeal to the very same
office that originally proposed the transfer. Moreover, persons with
developmental disabilities who reach age twenty-one after June 30,
1996 are provided no due process rights whatsoever. New York State
eliminated the right to appeal entirely based on the belief that there
would be adequate availability of appropriate in-state placements and
services for such persons. Now, nineteen years later, the office
remains unable to place some persons with developmental disabilities
into appropriate in-state adult placements.

Notwithstanding the present unavailability of appropriate in-state
placements, current law fails to acknowledge the devastating effects
that an inappropriate placement can have on a person with
developmental disabilities, including abuse, self-injury, improper
medication or death. Additionally, there is absolutely no recognition
of the potential harm arising directly from a transfer which
necessitates a disruption to the disabled person's current treatment
needs, home life and familiar surroundings.

This bill would establish a mechanism for review of the proposed
change of placement of persons with developmental disabilities, taking
into account the overall appropriateness of the proposed placement and
the potential harm that could result from the proposed transfer.
There is no policy rationale for denying these disabled adults the
same due process rights as are provided to all other OPWDD clients.
In fact, the disparate treatment of these disabled transitional care
adults is probably actionable under our equal protection laws, and
exposes New York to potential liability.

This bill will restore confidence and ensure that New York State is
truly committed to the appropriate placement of our developmentally
disabled population by affording them due process rights regarding
transfers to different residential facilities.

PRIOR LEGISLATIVE HISTORY:

None.

FISCAL IMPLICATIONS:

Minimal

EFFECTIVE DATE:

This act shall take effect immediately after it shall have become a
law.

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

                                  7374

                            I N  S E N A T E

                              May 14, 2014
                               ___________

Introduced  by  Sen. BONACIC -- 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, in relation to transitional care

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

  Section  1.  Subdivision  (a) of section 13.37-a of the mental hygiene
law, as added by chapter 405 of the laws of 1998, is amended to read  as
follows:
  (a)  For purposes of this section, "transitional care" shall mean care
and maintenance of persons:
  1. who were placed in foster care by a social services district pursu-
ant to article six of the social services law and who have become  twen-
ty-one  years  of  age,  or who were placed in a residential educational
placement by a school district pursuant to article  eighty-nine  of  the
education  law  and  who  are  no  longer  eligible for free educational
services because they have completed  the  school  year  in  which  they
became twenty-one;
  2. who were disabled and in need of residential care prior to becoming
age  twenty-one  or  prior  to  becoming  ineligible  for free education
services and who have since remained continuously disabled  and  contin-
uously in need of residential care;
  3.  [who  became  twenty-one or became ineligible for free educational
services prior to July first, nineteen hundred ninety-six;
  4.]with respect to whom the office has approved a  plan  of  continued
out  of  home care for the person but has not yet identified a currently
available appropriate placement; AND
  [5.] 4. whose residential needs can be met by the  facility  in  which
the  persons resided prior to becoming age twenty-one or becoming ineli-
gible for free educational services[; and].
  [6. who on July first, nineteen hundred ninety-eight are in receipt of
transitional care, or who have continuously remained in the foster  care
or  residential education placement where they had received transitional
care.]
  S 2. Subdivision (a) of section 13.38 of the mental  hygiene  law,  as
amended  by  chapter  405  of  the  laws  of 1998, is amended to read as
follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14850-02-4

S. 7374                             2

  (a) The office shall, in consultation with the  department  of  social
services, the education department, the office of mental health, and the
council  on    children   and   families, develop   a plan and implement
procedures to help assure that all persons who are  at  the  age or time
to  first qualify for transitional care, as described in section 13.37-a
of this article, and  for whom the office has accepted planning  respon-
sibilities,  receive assistance in locating an appropriate and available
residential  placement or plan of services, within the state and  within
the system of care subject  to  the jurisdiction of the office, prior to
the age or time at which they would otherwise have qualified for transi-
tional care[, if such individuals had become twenty-one or become ineli-
gible  for  educational  services  prior to July first, nineteen hundred
ninety-six].  For purposes of this section, the age or time at  which  a
person  would qualify for transitional care is twenty-one for persons in
foster  care,  and the  end  of the school year  in  which  they  become
twenty-one for persons in residential schools.
  S  3.  Subdivision  (e) of section 13.38 of the mental hygiene law, as
amended by chapter 405 of the laws  of  1998,  is  amended  to  read  as
follows:
  (e) Upon making a determination that a person who is receiving transi-
tional  care  can  be appropriately cared for in an available adult care
facility or service licensed, certified or approved by the  office,  and
whose removal from a child care facility is not required on an expedited
basis, the  office  shall  notify  BY  CERTIFIED  MAIL,  RETURN  RECEIPT
REQUESTED,  the  person  and  the  person's  guardian,  if  one has been
appointed, [or] AND, WHEN APPLICABLE, another individual  who  has  been
involved  in  the  care  of  the  person and who [can] MAY represent the
person's interests, of the DESCRIPTION OF THE  PROPOSED  NEW  PLACEMENT,
THE  availability of an administrative  appeal  to  review  the determi-
nation INCLUDING A DESCRIPTION OF THE APPEAL PROCEDURE, CONSISTENT  WITH
THE  NEW YORK STATE ADMINISTRATIVE PROCEDURE ACT, CONTACT INFORMATION AS
IT RELATES TO MAKING AN OBJECTION, and of the need to  request  such  an
appeal  IN  WRITING within thirty days of the notice.  SUCH NOTIFICATION
SHALL BE PROVIDED TO THE PERSON AND THE PERSON'S GUARDIAN,  IF  ONE  HAS
BEEN  APPOINTED  AND,  WHEN  APPLICABLE, ANOTHER INDIVIDUAL WHO HAS BEEN
INVOLVED IN THE CARE OF THE PERSON AND WHO MAY  REPRESENT  THE  PERSON'S
INTERESTS  NO  LATER  THAN  FORTY-FIVE  DAYS  PRIOR  TO  THE DATE OF THE
OFFICE'S INTENDED CHANGE IN PLACEMENT. If the person, guardian or  other
individual requests an administrative appeal within the  time  required,
the  office shall WITHIN FIVE DAYS OF RECEIPT OF THE WRITTEN REQUEST FOR
APPEAL, schedule a hearing [and the] PROVIDING NO  LESS  THAN  TEN  DAYS
NOTICE  TO  THE OBJECTING PARTY. THE commissioner or his or her designee
shall issue a WRITTEN determination TO THE INVOLVED  INDIVIDUALS  within
thirty  days  of  the  adjournment  of the hearing, on whether the adult
placement identified by the office is appropriate to the  needs  of  the
person  and  is available or will become available on an identified date
certain. THE WRITTEN DETERMINATION SHALL  BE  THE  FINAL  ADMINISTRATIVE
REMEDY  AVAILABLE  AND SHALL BE SUBJECT TO REVIEW IN ACCORDANCE WITH THE
PROVISIONS OF ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
If the person, guardian or other individual does not request  a  hearing
within  the  time required, or if the hearing results in a determination
that the proposed adult services or  placement  is  appropriate  to  the
needs  of the person and is available or will be available on an identi-
fied date certain, the office shall discontinue transitional care  fund-
ing for the person as of a date certain.
  S 4. This act shall take effect immediately.

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