S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1763
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 17, 2019
                                ___________
 
 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".
   §  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.
   The legislature recognizes that inappropriate  or  ineffective  place-
 ments  and/or  services  for  persons  with mental disabilities can have

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

                                                            LBD04403-01-9

 A. 1763                             2
 
 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.
   § 3. The mental hygiene law is amended by adding a new  section  13.36
 to read as follows:
 § 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
 WITH  MENTAL  DISABILITIES  IN  CONFORMANCE  WITH THIS SECTION. SUCH DUE

 A. 1763                             3
 
 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
 THE DEPARTMENT, IF ULTIMATELY ALLOWED, WOULD BE (I) IN THE OVERALL BEST,

 A. 1763                             4

 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.
   § 4. This act shall take effect immediately.