Senate Bill S8355

                                 
BILL NUMBER: S8355A

SPONSOR: CLEARE
 
TITLE OF BILL:

An act to amend the mental hygiene law, in relation to due process
procedures for certain persons who will become eligible to receive tran-
sitional care or certain care at a future date

 
PURPOSE OR GENERAL IDEA OF BILL:

To ensure that written notice is given to an individual or the individ-
ual's parent or guardian if the Office for People with Developmental
Disabilities (OPWDD)offers a placement to individuals placed in approved
out-of-state residential schools prior to when an individual's due proc-
ess rights vest; and to ensure no loss of funding or due process rights
if the offered placement is declined.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill amends section 13.38 of the mental hygiene law by
adding a new subdivision 13.38(e-1) to provide that the subdivision
              

applies to planning for persons currently are placed in New York State
Education Department approved out-of-state residential schools who will
become eligible to receive transitional care or care pursuant to subdi-
vision (g) of this section at a future date.

This subdivision further provides that OPWDD may seek to identify an
adult care facility or service where such person can receive appropriate
care and where such care is available to commence, on, or after, the
date when funding for transitional care or care pursuant to section (g)
of this section will otherwise commence.

If OPWDD offers a person a new placement at a facility and program that
it has determined to be appropriate, OPWDD must notify in writing the
person or guardian that: (i) the person or the person's guardian has the
unconditional right not to accept the offer; (ii) if the offer is not
responded to, or is expressly declined, then funding for transitional
care pursuant to subdivision (g) of this section will commence as if no
offer had been made; and (iii) if, after the commencement of such fund-
ing, OPWDD proposes a new placement, then the notice, appeal, and due
process rights of the person that are set forth in subdivision (e) of
this section shall apply.

Section 2 is the effective date.

 
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION:

The amended version makes clear that this subdivision applies to persons
who currently are placed in New York State Education Department approved
out-of-state residential schools.

 
JUSTIFICATION:

For years the State has placed some individuals with developmental disa-
bilities in out-of-state adult residential placements because there are
no facilities in the State that can adequately care for these high-need
individuals. This includes school aged special education students who
are placed in New York State Educational Department (NYSED)- approved
out-of-state residential schools by their school districts. Pursuant to
state and federal laws, the school district where the student resides
provides the funding for these residential school programs, until the
end of the school year in which the student turns 21 (June 30th for most
students, but August 31st for students whose birthdays fall in July or
August). This "transitional care" serves as a bridge until OPWDD can
find appropriate in-state adult placements. For more than a decade,
OPWDD was relatively judicious about proposing transfers of persons in
transitional care to in-state adult placements. However, in 2012, as a
cost-cutting measure, OPWDD began implementing a policy of returning all
individuals in out-of-state schools on an arbitrary timeline.

Due to the serious concerns and potential serious harm of placing their
children with developmental disabilities in state facilities that lacked
appropriate services, parent advocacy resulted in the Legislature pass-
ing legislation in 2014 and 2015. These laws provided the individual
with developmental disabilities or the parent or guardian of an adult
with developmental disabilities due process protections, including the
right to an administrative hearing to challenge the determination
regarding the appropriate setting for that individual. Under these
current laws, during the administrative hearing the funding and the
out-of-state placements remained in place for these individuals.

At the time these due process laws were enacted, the general practice of
OPWDD was to make transfer offers, if at all, after the person with a
disability was already receiving transitional care. However, since that
time OPWDD has changed the timing of service offers to parents and guar-
dians of adults with disabilities who are beginning to receive transi-
tional care. Since current law does not provide these due process
protections to parents or guardians of adults with disabilities who are
about to receive transitional care, these adults with disabilities or
their parents or guardians were not given prior notice of the placement
or the opportunity to question or object to the placement.

OPWDD notified parents that their children would be moved from the out-
of-state residential school where their behaviors had dramatically
improved, and where they lived in houses in residential neighborhoods
and participated in activities in the community, to state-run "Intense
Care" developmental centers. After significant pushback from the parents
and members of the Legislature, OPWDD placed a hold on its policy of
rushing these placements through and notified the affected families that
emergency funding for their children would continue for a period of no
less than six months.  While this delay averted the initial crisis and
allows these families to access due process protections that exist
currently in law, this bill will prevent a recurrence of this evasion of
the legislative intent of the 2014 and 2015 due process laws. This bill
will address this issue by requiring specific written notice to a person
or their parent/guardian, if OPWDD is offering them a placement prior to
when their due process rights vest and ensure continued funding and due
process rights if the offer is declined. This bill will help ensure that
our most needy individuals with developmental disabilities continue to
get the care and services that they deser ve and need.

 
PRIOR LEGISLATIVE HISTORY:

New Bill

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.

 
EFFECTIVE DATE:
This act shall take effect immediately.

                                 
BILL NUMBER: S8355B

SPONSOR: CLEARE
 
TITLE OF BILL:

An act to amend the mental hygiene law, in relation to due process
procedures for certain persons who will become eligible to receive tran-
sitional care or certain care at a future date

 
PURPOSE OR GENERAL IDEA OF BILL:

This bill ensures due process rights when OPWDD seeks to place young
adults in a new facility and when families question the appropriateness
of the placement offers. The bill closes a loophole in the 2014/15 due
process law, for persons who are on the cusp of turning 21 and aging out
of educational funding, by ensuring that due process rights apply in
this limited circumstance.

 
SUMMARY OF PROVISIONS:

This bill does exactly two things:  One, ensures due process rights when
OPWDD seeks to place young adults in a new facility in the limited
              

circumstances where the affected individual is on the cusp of turning 21
and aging out of educational funding, but given an offer for transi-
tional care by OPWDD before actually turning 21. This loophole is
closed.  Two, restates that if an OPWDD offer is made before the
affected individual turns 21, the individual does not need to terminate
their educational (FAPE) funding and support prematurely.

 
JUSTIFICATION:

For years the State has placed some individuals with developmental disa-
bilities in out-of-state adult residential placements because there are
no facilities in the State that can adequately care for these high-need
individuals. This includes school aged special education students who
are placed in New York State Educational Department (NYSED) - approved
out-of-state residential schools by their school districts. Pursuant to
state and federal laws, the school district where the student resides
provides the funding for these residential school programs, until the
end of the school year in which the student turns 21 ;June 30th for most
students, but August 31st for students whose birthdays fall in July or
August).  This "transitional care" serves as a bridge until OPWDD can
find appropriate in-state adult placements. For more than a decade,
OPWDD was relatively judicious about proposing transfers of persons in
transitional care to in-state adult placements. However, in 2012, as a
cost-cutting measure, OPWDD began implementing a policy of returning all
individuals in out-of-state schools on an arbitrary timeline.

Due to the serious concerns and potential serious harm of placing their
children with developmental disabilities in state facilities that lacked
appropriate services, parent advocacy resulted in the Legislature pass-
ing legislation in 2014 and 2015. These laws provided the individual
with developmental disabilities or the parent or guardian of an adult
with developmental disabilities due process protections, including the
right to an administrative hearing to challenge the determination
regarding the appropriate setting for that individual. Under these
current laws, during the administrative hearing the funding and the
out-of-state placements remained in place for these individuals.

At the time these due process laws were enacted, the general practice of
OPWDD was to make transfer offers, if at all, after the person with a
disability was already receiving transitional care. However, since that
time OPWDD has changed the timing of service offers to parents and guar-
dians of adults with disabilities who are beginning to receive transi-
tional care. Since current law does not provide these due process
protections to parents or guardians of adults with disabilities who are
about to receive transitional care, these adults with disabilities or
their parents or guardians were not given prior notice of the placement
or the opportunity to question or object to the placement.

OPWDD notified parents that their children would be moved from the out-
of-state residential school where their behaviors had dramatically
improved, and where they lived in houses in residential neighborhoods
and participated in activities in the community, to state-run "Intense
Care" developmental centers. After significant pushback from the parents
and members of the Legislature, OPWDD placed a hold on its policy of
rushing these placements through and notified the affected families that
emergency funding for their children would continue for a period of no
less than six months.  While this delay averted the initial crisis and
allows these families to access due process protections that exist
currently in law, this bill will prevent a recurrence of this evasion of
the legislative intent of the 2014 and 2015 due process laws. This bill
will address this issue by the same due process rights in all cases,
irrespective of the age and date at which an affected individual is
offered transitional care.

 
PRIOR LEGISLATIVE HISTORY:

New Bill. Amended 5.23.2022

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.