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

                                   360

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2015
                               ___________

Introduced by M. of A. ABINANTI -- read once and referred to the Commit-
  tee on Mental Health

AN  ACT  to  amend  the  mental  hygiene law, in relation to due process
  procedures for all adults with mental 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 mental disabilities act".
  S  2.  Legislative findings and intent. Certain federal and state laws
and regulations currently provide various due  process  protections  for
certain  categories  of  persons with mental 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 disa-
bility. New York state also provides substantial due process protections
for the parents of a child with a disability who needs residential  care
while this child is in school.
  However,  when a mentally disabled individual reaches the age of twen-
ty-one, their due process protections  become  significantly  diminished
or,  in some cases, end completely.  Specifically, those developmentally
disabled adults in transitional care who reach the age of twenty-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 twen-
ty-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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05617-01-5
              

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  The legislature recognizes that inappropriate  or  ineffective  place-
ments  and/or  services  for  persons  with mental disabilities can have
devastating effects for those persons impacted, including  abuse,  self-
harm,  improper medication or even death.  Additionally, the legislature
recognizes  the  harm  a person with mental disabilities can suffer from
the disruption to his/her current treatment needs, home life and  famil-
iar  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
mentally  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 mentally 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 mental  disabilities,  the
legislature  hereby  finds  that  it is incumbent upon New York state to
institute uniform minimum due process protections for all  persons  with
mental 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 supple-
ment and strengthen the patchwork of various protections for adults with
mental disabilities in place under existing laws.
  S  3.  The mental hygiene law is amended by adding a new section 13.36
to read as follows:
S 13.36 PROTECTION OF ADULTS WITH MENTAL DISABILITIES.
  1. DEFINITIONS. AS USED IN THIS SECTION,  UNLESS  OTHERWISE  EXPRESSLY
STATED OR UNLESS THE CONTEXT OTHERWISE REQUIRES:
  (A)  "ADULTS WITH MENTAL DISABILITIES" MEANS ALL PERSONS WITH A MENTAL
DISABILITY, AS THAT TERM IS DEFINED IN SECTION 1.03 OF THIS CHAPTER, AND
WHO ARE TWENTY-ONE YEARS OLD OR OLDER, OR THE GUARDIAN OR  GUARDIANS  OR
REPRESENTATIVE OR REPRESENTATIVES OF ANY SUCH PERSON, IF ANY EXIST.
  (B) "SERVICES" MEANS ANY AND ALL CARE AND TREATMENT RENDERED TO ADULTS
WITH  MENTAL  DISABILITIES (I) WHO ARE UNDER THE CARE, AUTHORITY, JURIS-
DICTION, SUPERVISION OR CONTROL OF THE VARIOUS OFFICES  OF  THE  DEPART-
MENT,  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 MENTALLY 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  MENTAL
DISABILITIES, AND SHALL DEVELOP AND PROMULGATE REGULATIONS, POLICIES AND
PROCEDURES  NECESSARY  TO  RESOLVE  OBJECTIONS BY OR ON BEHALF OF ADULTS

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WITH MENTAL DISABILITIES IN CONFORMANCE  WITH  THIS  SECTION.  SUCH  DUE
PROCESS PROTECTIONS SHALL BE AFFORDED TO ADULTS WITH 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 MENTAL DISABILITIES,
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  MENTAL  DISABILITIES
PURSUANT  TO  AN INDIVIDUALIZED TREATMENT PLAN, INCLUDING AN INDIVIDUAL-
IZED 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
MENTAL DISABILITIES; OR,
  (B) ANY OFFICE OF THE DEPARTMENT:
  (I) DENIES AN ADULT WITH MENTAL DISABILITIES SPECIFIC  SERVICES  OR  A
SPECIFIC  PLACEMENT WHICH IS RECOMMENDED FOR THAT INDIVIDUAL PURSUANT 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 MENTAL
DISABILITIES.
  3. MINIMUM DUE PROCESS PROTECTIONS. DUE PROCESS PROTECTIONS FOR ADULTS
WITH MENTAL DISABILITIES IMPLEMENTED BY THE DEPARTMENT AND  ITS  OFFICES
SHALL  INCLUDE, AT A MINIMUM, THE RIGHTS OF ADULTS WITH MENTAL DISABILI-
TIES:
  (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 MENTAL DISABILITIES AS TO HIS OR HER
RIGHT TO FORMALLY OBJECT IN WRITING 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
INTRODUCED  AND  RENDERED  AT THE HEARING, AND IN WHICH IT IS DETERMINED
WHETHER THE TRIGGERING EVENT TAKEN OR PROPOSED BY THE RELEVANT OFFICE OF

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THE DEPARTMENT, IF ULTIMATELY ALLOWED, WOULD BE (I) IN THE OVERALL BEST,
INDIVIDUAL INTERESTS OF THE ADULT WITH MENTAL 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 MENTAL DISABILITIES IS UNDERGOING
ADMINISTRATIVE AND/OR APPELLATE REVIEW, UNLESS AS OTHERWISE AGREED TO BY
SUCH OFFICE AND SUCH ADULT WITH MENTAL DISABILITIES OR HIS OR HER GUARD-
IAN 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 MENTAL 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
MENTAL DISABILITIES OR HIS OR HER GUARDIAN OR REPRESENTATIVE.
  5. THE MINIMUM DUE PROCESS PROTECTIONS FOR ADULTS WITH MENTAL DISABIL-
ITIES  SET FORTH WITHIN THIS SECTION SHALL SERVE TO SUPPLEMENT AND REIN-
FORCE 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.
  S 4. This act shall take effect immediately.