S T A T E O F N E W Y O R K
________________________________________________________________________
549
2017-2018 Regular Sessions
I N A S S E M B L Y
January 9, 2017
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Introduced by M. of A. GUNTHER, LUPARDO, BRINDISI, MAGEE, SKARTADOS,
GALEF, STECK, SANTABARBARA, TITONE, DiPIETRO, PALMESANO, GOODELL,
CROUCH, RAIA, PALUMBO, RA, GARBARINO -- Multi-Sponsored by -- M. of A.
HOOPER, McDONOUGH, MURRAY, THIELE -- read once and referred to the
Committee on Mental Health
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".
§ 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.
LBD01548-02-7
A. 549 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.
§ 3. The mental hygiene law is amended by adding a new section 16.02
to read as follows:
§ 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.
A. 549 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.
§ 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".
§ 5. This act shall take effect immediately.