NY State Senate Bill 2015-S3893B

Senate Bill S3893B

2015-2016 Legislative Session

Enacts the "employment first choice act" to ensure that an individual with developmental disabilities in a nonintegrated setting shall have the right to remain in such a setting under certain circumstance

download bill text pdf

Archive: Last Bill Status - Stricken

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 20, 2016	recommit, enacting clause stricken
Jan 06, 2016	referred to mental health and developmental disabilities
Jun 25, 2015	recommitted to rules
Jun 18, 2015	ordered to third reading cal.1853 committee discharged and committed to rules
Jun 01, 2015	print number 3893b
Jun 01, 2015	amend and recommit to finance
May 13, 2015	reported and committed to finance
Mar 02, 2015	print number 3893a
Mar 02, 2015	amend and recommit to mental health and developmental disabilities
Feb 20, 2015	referred to mental health and developmental disabilities

Votes

- Jun 18, 2015 - Rules Committee Vote
  S3893B
  
  23
  
  Aye
  
  0
  
  Nay
  
  2
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Rules Committee Vote: Jun 18, 2015
      
      aye (23)
      
      Bonacic
      
      Breslin
      
      Carlucci
      
      Dilan
      
      Espaillat
      
      Farley
      
      Flanagan
      
      Hannon
      
      Hassell-Thompson
      
      LaValle
      
      Larkin
      
      Libous
      
      Little
      
      Marcellino
      
      Montgomery
      
      Nozzolio
      
      Parker
      
      Perkins
      
      Seward
      
      Skelos
      
      Stewart-Cousins
      
      Valesky
      
      Young
      
      aye wr (2)
      
      Gianaris
      
      Krueger
  May 13, 2015 - Committee Vote
  S3893B
  
  10
  
  Aye
  
  0
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Committee Vote: May 13, 2015
      
      aye (10)
      
      Carlucci
      
      Felder
      
      Hamilton
      
      Hannon
      
      Murphy
      
      Ortt
      
      Rivera
      
      Serino
      
      Serrano
      
      Seward
      
      aye wr (1)
      
      Krueger

Bill Amendments

Original

B (Active)

co-Sponsors

2015-S3893 - Details

Law Section:: Mental Hygiene Law
Laws Affected:: Add §16.02, Ment Hyg L

2015-S3893 - Summary

2015-S3893 - Sponsor Memo

                                BILL NUMBER:S3893

TITLE OF BILL:  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

PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to preserve the right of individuals with
developmental disabilities to choose to remain in a nonintegrated
setting. The bill also directs the Commissioner of the Office for
People With Developmental Disabilities to modify the State's agreement
on the closure of nonintegrated settings with the Centers for Medicare
and Medicaid Services, to allow for informed choice and to safeguard
the continued receipt of pertinent federal Medicaid funds.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 establishes the act to be known as the "Employment First
Choice Act."

Section 2 states the legislative intent of the act, which is to
preserve an individual's right to choose whether to remain in a
nonintegrated setting.

Section 3 adds a new section 16.02 to article 16 of the mental hygiene
law, to direct the Commissioner of the Office for People With
Developmental Disabilities to establish a procedure for granting
accommodations to individuals who choose to remain in a nonintegrated
setting. This section also provides for the continued receipt of
services regardless of the choice of setting.

Section 4 directs the Commissioner of the Office for People With
Developmental Disabilities to resubmit its final New York plan to
increase competitive employment opportunities for people with
developmental disabilities, in order to continue eligibility for
federal funding for prevocational services.

Section 5 establishes the effective date.

JUSTIFICATION:

According to the New York State Office for People with Developmental
Disabilities' ("OPWDD") report to the legislature pursuant to chapter
60 of the laws of 2014 (the "Report"), New York State plans to fully
eliminate funding for nonintegrated settings, including sheltered
workshops, over the next six years. Therefore, all individuals now in
nonintegrated settings, irrespective of their wishes, will be required
to leave those facilities by 2020 or 2021. Many individuals with
developmental disabilities depend on these settings to socialize, to
earn a paycheck, and to improve and maintain their functional and
vocational skills.

Further, in its Report, OPWDD estimates that only half of the current
approximately 8,000 workshop participants will transition to an
integrated work setting when nonintegrated settings are discontinued.


The remaining participants will likely choose not to join an
integrated work setting because the setting is not appropriate for
their unique needs and does not fit into their individualized service
plan. The disruption and hardship that will be experienced by some
individuals who currently participate in a nonintegrated setting, but
who do not want to transition to any other activity, is alarming.
While these concerns were raised numerous times by public participants
in the twelve community dialogues held by OPWDD in 2014, this issue
was not addressed or resolved in the Report.

This result is contrary to the clear wording of the guiding U.S.
Supreme Court decision in Olmstead v. L.C., which held that states are
required to place individuals with developmental disabilities in
community settings rather than in institutions when, among other
conditions, "the transfer from institutional care to a less
restrictive setting is not opposed by the affected individual . . . ."

New York's rural areas, which extend through much of the State, pose
additional challenges that may further limit an individual's choice,
making the choice to remain in a nonintegrated setting even more
important to preserve. An absence of competitive employment
opportunities may prevent an individual from realizing the choice to
participate in an integrated setting. In addition, and also specific
to rural areas throughout the State, alternatives to employment are
limited, and some individuals may be transferred from a nonintegrated
setting to simply staying at home. As such, individuals who either
cannot obtain integrated employment and would prefer nonintegrated
employment to other alternatives, or who choose to remain in a
nonintegrated setting altogether, are at risk of being divested of
their most meaningful or engaging activity should a nonintegrated
environment be unavailable.

This bill, therefore, preserves the right of individuals with
developmental disabilities to choose to remain in a nonintegrated
setting. The bill also directs the Commissioner of OPWDD to modify the
State's agreement on the closure of nonintegrated settings with the
Centers for Medicare and Medicaid Services, to allow for informed
choice and to safeguard the continued receipt of pertinent federal
Medicaid funds.

Finally, and critically, the bill echoes the intent of the U.S.
Supreme Court's decision in Olmstead v. L.C. as well as the provisions
of the Rhode Island Consent Decree. This landmark agreement between
the U.S. Department of Justice and the State of Rhode Island strongly
encourages integrated and competitive employment, but recognizes the
right of individuals with developmental disabilities who are current
sheltered workshop participants to remain in that setting if they
choose to do so.  Importantly, the bill also mirrors the Rhode Island
Consent Decree's process for making such an informed choice.

LEGISLATIVE HISTORY:

This is a new bill.

FISCAL IMPLICATIONS:

Undetermined.


EFFECTIVE DATE:

This act shall take effect immediately.

2015-S3893 - Bill Text download pdf

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

                                  3893

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            February 20, 2015
                               ___________

Introduced by Sen. YOUNG -- (at request of the Legislative Commission on
  Rural  Resources)  -- read twice and ordered printed, and when printed
  to be committed to the Committee on Mental  Health  and  Developmental
  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".
  S 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 wish 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09273-02-5

S. 3893                             2

the affected individual. The legislature, therefore, declares  this  act
to  be  a  priority  of  the  state's actions affecting individuals with
developmental disabilities.
  S  3.  The mental hygiene law is amended by adding a new section 16.02
to read as follows:
S 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 CHOOSES 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.
  (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 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,  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 INTEGRATED WORK EXPERIENCE
SHALL  BE  SELECTED THROUGH A PERSON-CENTERED PLANNING PROCESS AND SHALL
BE INDIVIDUALLY TAILORED TO EACH PERSON. ALTERNATIVELY, THE COMMISSIONER
MAY CONSIDER THE INDIVIDUAL'S DEMONSTRATION OF AN INABILITY  TO  PARTIC-
IPATE  IN  AN INTEGRATED WORK SETTING DUE TO A DOCUMENTED MEDICAL CONDI-
TION 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.
  (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.

S. 3893                             3

  (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 HE OR SHE SHALL DEEM NECESSARY TO IMPLEMENT THE PROVISIONS OF
THIS SECTION.
  S 4. The commissioner of developmental disabilities  shall  amend  and
resubmit  to  the Federal Centers for Medicare and Medicaid Services the
final New York plan to increase competitive employment opportunities for
people with developmental disabilities, as approved on May 1,  2014,  in
order to secure the continued federal financial participation for prevo-
cational  services and any other necessary federal funds for those indi-
viduals choosing a sheltered workshop setting pursuant to section  16.02
of  the  mental  hygiene  law.  The  plan,  as amended according to this
section, shall  stipulate  that  facility-based  prevocational  services
shall  continue  to  be eligible for federal funding, as allowed by such
centers' stated policy that its regulations do not prohibit  individuals
from  receiving prevocational services in a facility-based setting, such
as a sheltered workshop, as referenced in its Informational Bulletin  on
Employment  Services  dated September 16, 2011, and its related document
titled "HCBS Final Regulations 42 C.F.R. Part 441: Questions and Answers
Regarding  Home  and  Community-Based  Settings;   Public   Notice   and
Comments".
  S 5. This act shall take effect immediately.

co-Sponsors

View additional co-sponsors

2015-S3893A - Details

Law Section:: Mental Hygiene Law
Laws Affected:: Add §16.02, Ment Hyg L

2015-S3893A - Summary

2015-S3893A - Sponsor Memo

                                BILL NUMBER:S3893A

TITLE OF BILL:  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

PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to preserve the right of individuals with
developmental disabilities to choose to remain in a nonintegrated
setting. The bill also directs the Commissioner of the Office for
People With Developmental Disabilities to modify the State's agreement
on the closure of nonintegrated settings with the Centers for Medicare
and Medicaid Services, to allow for informed choice and to safeguard
the continued receipt of pertinent federal Medicaid funds.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 establishes the act to be known as the "Employment First
Choice Act."

Section 2 states the legislative intent of the act, which is to
preserve an individual's right to choose whether to remain in a
nonintegrated setting.

Section 3 adds a new section 16.02 to article 16 of the mental hygiene
law, to direct the Commissioner of the Office for People With
Developmental Disabilities to establish a procedure for granting
accommodations to individuals who choose to remain in a nonintegrated
setting. This section also provides for the continued receipt of
services regardless of the choice of setting.

Section 4 directs the Commissioner of the Office for People With
Developmental Disabilities to resubmit its final New York plan to
increase competitive employment opportunities for people with
developmental disabilities, in order to continue eligibility for
federal funding for prevocational services.

Section 5 establishes the effective date.

JUSTIFICATION:

According to the New York State Office for People with Developmental
Disabilities' ("OPWDD") report to the legislature pursuant to chapter
60 of the laws of 2014 (the "Report"), New York State plans to fully
eliminate funding for nonintegrated settings, including sheltered
workshops, over the next six years. Therefore, all individuals now in
nonintegrated settings, irrespective of their wishes, will be required
to leave those facilities by 2020 or 2021. Many individuals with
developmental disabilities depend on these settings to socialize, to
earn a paycheck, and to improve and maintain their functional and
vocational skills.

Further, in its Report, OPWDD estimates that only half of the current
approximately 8,000 workshop participants will transition to an
integrated work setting when nonintegrated settings are discontinued.


The remaining participants will likely choose not to join an
integrated work setting because the setting is not appropriate for
their unique needs and does not fit into their individualized service
plan. The disruption and hardship that will be experienced by some
individuals who currently participate in a nonintegrated setting, but
who do not want to transition to any other activity, is alarming.
While these concerns were raised numerous times by public participants
in the twelve community dialogues held by OPWDD in 2014, this issue
was not addressed or resolved in the Report.

This result is contrary to the clear wording of the guiding U.S.
Supreme Court decision in Olmstead v. L.C., which held that states are
required to place individuals with developmental disabilities in
community settings rather than in institutions when, among other
conditions, "the transfer from institutional care to a less
restrictive setting is not opposed by the affected individual....."

New York's rural areas, which extend through much of the State, pose
additional challenges that may further limit an individual's choice,
making the choice to remain in a nonintegrated setting even more
important to preserve. An absence of competitive employment
opportunities may prevent an individual from realizing the choice to
participate in an integrated setting. In addition, and also specific
to rural areas throughout the State, alternatives to employment are
limited, and some individuals may be transferred from a nonintegrated
setting to simply staying at home. As such, individuals who either
cannot obtain integrated employment and would prefer nonintegrated
employment to other alternatives, or who choose to remain in a
nonintegrated setting altogether, are at risk of being divested of
their most meaningful or engaging activity should a nonintegrated
environment be unavailable.

This bill, therefore, preserves the right of individuals with
developmental disabilities to choose to remain in a nonintegrated
setting. The bill also directs the Commissioner of OPWDD to modify the
State's agreement on the closure of nonintegrated settings with the
Centers for Medicare and Medicaid Services, to allow for informed
choice and to safeguard the continued receipt of pertinent federal
Medicaid funds.

Finally, and critically, the bill echoes the intent of the U.S.
Supreme Court's decision in Olmstead v. L.C. as well as the provisions
of the Rhode Island Consent. Decree. This landmark agreement between
the U.S. Department of Justice and the State of Rhode Island strongly
encourages integrated and competitive employment, but recognizes the
right of individuals with developmental disabilities who are current
sheltered workshop participants to remain in that setting if they
choose to do so.  Importantly, the bill also mirrors the Rhode Island
Consent Decree's process for making such an informed choice.

LEGISLATIVE HISTORY:

This is a new bill.

FISCAL IMPLICATIONS:

Undetermined.


EFFECTIVE DATE:

This act shall take effect immediately.

2015-S3893A - Bill Text download pdf

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

                                 3893--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            February 20, 2015
                               ___________

Introduced  by  Sens.  YOUNG,  VALESKY -- (at request of the Legislative
  Commission on Rural Resources) -- read twice and ordered printed,  and
  when  printed  to  be  committed to the Committee on Mental Health and
  Developmental Disabilities  --  committee  discharged,  bill  amended,
  ordered reprinted as amended and recommitted to said committee

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".
  S 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 wish 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09273-04-5

S. 3893--A                          2

nonintegrated  settings, but only when such a transfer is not opposed by
the affected individual. The legislature, therefore, declares  this  act
to  be  a  priority  of  the  state's actions affecting individuals with
developmental disabilities.
  S  3.  The mental hygiene law is amended by adding a new section 16.02
to read as follows:
S 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 CHOOSES 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.
  (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.

S. 3893--A                          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 HE OR SHE SHALL DEEM NECESSARY TO IMPLEMENT THE PROVISIONS OF
THIS SECTION.
  S 4. The commissioner of developmental disabilities  shall  amend  and
resubmit  to  the Federal Centers for Medicare and Medicaid Services the
final New York plan to increase competitive employment opportunities for
people with developmental disabilities, as approved on May 1,  2014,  in
order to secure the continued federal financial participation for prevo-
cational  services and any other necessary federal funds for those indi-
viduals choosing a sheltered workshop setting pursuant to section  16.02
of  the  mental  hygiene  law.  The  plan,  as amended according to this
section, shall  stipulate  that  facility-based  prevocational  services
shall  continue  to  be eligible for federal funding, as allowed by such
centers' stated policy that its regulations do not prohibit  individuals
from  receiving prevocational services in a facility-based setting, such
as a sheltered workshop, as referenced in its Informational Bulletin  on
Employment  Services  dated September 16, 2011, and its related document
titled "HCBS Final Regulations 42 C.F.R. Part 441: Questions and Answers
Regarding  Home  and  Community-Based  Settings;   Public   Notice   and
Comments".
  S 5. This act shall take effect immediately.

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2015-S3893B (ACTIVE) - Details

Law Section:: Mental Hygiene Law
Laws Affected:: Add §16.02, Ment Hyg L

2015-S3893B (ACTIVE) - Summary

2015-S3893B (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S3893B

TITLE OF BILL:  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

PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to
preserve the right of individuals with developmental disabilities to
choose to remain in a nonintegrated setting. The bill also directs the
Commissioner of the Office for People With Developmental Disabilities
to modify the State's agreement on the closure of nonintegrated
settings with the Centers for Medicare and Medicaid Services, to allow
for informed choice and to safeguard the continued receipt of
pertinent federal Medicaid funds.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 establishes the act to be known as the "Employment First
Choice Act."

Section 2 states the legislative intent of the act, which is to
preserve an individual's right to choose whether to remain in a
nonintegrated setting.

Section 3 adds a new section 16.02 to article 16 of the mental hygiene

law, to direct the Commissioner of the Office for People With
Developmental Disabilities to establish a procedure for granting
accommodations to individuals who choose to remain in a nonintegrated
setting. This section also provides for the continued receipt of
services regardless of the choice of setting.

Section 4 directs the Commissioner of the Office for People With
Developmental Disabilities to resubmit its final New York plan to
increase competitive employment opportunities for people with
developmental disabilities, in order to continue eligibility for
federal funding for prevocational services.

Section 5 establishes the effective date.

JUSTIFICATION:  According to the New York State Office for People with
Developmental Disabilities' ("OPWDD") report to the legislature
pursuant to chapter 60 of the laws of 2014 (the "Report"), New York
State plans to fully eliminate funding for nonintegrated settings,
including sheltered workshops, over the next six years. Therefore, all
individuals now in nonintegrated settings, irrespective of their
wishes, will be required to leave those facilities by 2020 or
2021.Many individuals with developmental disabilities depend on these
settings to socialize, to earn a paycheck, and to improve and maintain
their functional and vocational skills.

Further, in its Report, OPWDD estimates that only half of the current
approximately 8,000 workshop participants will transition to an
integrated work setting when nonintegrated settings are discontinued.
The remaining participants will likely choose not to join an
integrated work setting because the setting is not appropriate for
their unique needs and does not fit into their individualized service


plan. The disruption and hardship that will be experienced by some
individuals who currently participate in a nonintegrated setting, but
who do not want to transition to any other activity, is alarming.
While these concerns were raised numerous times by public participants
in the twelve community dialogues held by OPWDD in 2014, this issue
was not addressed or resolved in the Report.

This result is contrary to the clear wording of the guiding U.S.
Supreme Court decision in Olmstead v. L.C., which held that states are
required to place individuals with developmental disabilities in
community settings rather than in institutions when, among other
conditions, "the transfer from institutional care to a less
restrictive setting is not opposed by the affected individual . . . ."

New York's rural areas, which extend through much of the State, pose
additional challenges that may further limit an individual's choice,
making the choice to remain in a nonintegrated setting even more
important to preserve. An absence of competitive employment
opportunities may prevent an individual from realizing the choice to
participate in an integrated setting. In addition, and also specific
to rural areas throughout the State, alternatives to employment are
limited, and some individuals may be transferred from a nonintegrated
setting to simply staying at home. As such, individuals who either
cannot obtain integrated employment and would prefer nonintegrated
employment to other alternatives, or who choose to remain in a
nonintegrated setting altogether, are at risk of being divested of
their most meaningful or engaging activity should a nonintegrated
environment be unavailable.

This bill, therefore, preserves the right of individuals with
developmental disabilities to choose to remain in a nonintegrated
setting.

LEGISLATIVE HISTORY: This is a new bill.

FISCAL IMPLICATIONS: Undetermined.

EFFECTIVE DATE: This act shall take effect immediately.

2015-S3893B (ACTIVE) - Bill Text download pdf

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

                                 3893--B

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            February 20, 2015
                               ___________

Introduced  by  Sens.  YOUNG, BOYLE, CARLUCCI, GALLIVAN, LIBOUS, MURPHY,
  O'MARA, ORTT, RITCHIE, SEWARD, VALESKY -- (at request of the  Legisla-
  tive Commission on Rural Resources) -- read twice and ordered printed,
  and when printed to be committed to the Committee on Mental Health and
  Developmental  Disabilities  --  committee  discharged,  bill amended,
  ordered reprinted as amended and  recommitted  to  said  committee  --
  reported  favorably from said committee and committed to the Committee
  on Finance -- committee discharged, bill amended, ordered reprinted as
  amended and recommitted to said committee

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".
  S  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09273-05-5

S. 3893--B                          2

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
to be a priority of  the  state's  actions  affecting  individuals  with
developmental disabilities.
  S  3.  The mental hygiene law is amended by adding a new section 16.02
to read as follows:
S 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.

S. 3893--B                          3

  (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.
  (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.
  S 4. This act shall take effect immediately.

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Senate Bill S3893B

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2015-S3893B (ACTIVE) - Bill Text download pdf

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