S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7912
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              August 4, 2023
                                ___________
 
 Introduced  by M. of A. SIMON -- read once and referred to the Committee
   on Judiciary
 
 AN ACT to amend the mental hygiene  law,  in  relation  to  due  process
   procedures for all adults with developmental 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 developmental 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  developmental  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 disability. New York state also provides substantial due process
 protections for the parents of a child with a disability who needs resi-
 dential care while this child is in school.
   However, when a developmentally disabled individual reaches the age of
 twenty-one, their due process protections  become  significantly  dimin-
 ished  or,  in some cases, end completely.  Specifically, those develop-
 mentally disabled adults in transitional care who reach the age of twen-
 ty-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 twenty-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 developmental disabilities can
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09789-01-3
              

 A. 7912                             2
 
 have devastating effects for those persons  impacted,  including  abuse,
 self-harm,  improper medication or even death.  Additionally, the legis-
 lature recognizes the harm a person with developmental disabilities  can
 suffer from the disruption to his/her current treatment needs, home life
 and  familiar 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 place-
 ment 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
 developmentally  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 developmentally 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 developmental disabili-
 ties, the legislature hereby finds that it is incumbent  upon  New  York
 state  to  institute  uniform  minimum  due  process protections for all
 persons with developmental 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 supplement and strengthen the patchwork  of  various
 protections  for  adults  with developmental 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 DEVELOPMENTAL DISABILITIES.
   1.  DEFINITIONS.  AS  USED IN THIS SECTION, UNLESS OTHERWISE EXPRESSLY
 STATED OR UNLESS THE CONTEXT OTHERWISE REQUIRES:
   (A) "ADULTS WITH DEVELOPMENTAL DISABILITIES" MEANS ALL PERSONS WITH  A
 MENTAL DISABILITY, AS THAT TERM IS DEFINED IN SECTION 1.03 OF THIS CHAP-
 TER, AND WHO ARE TWENTY-ONE YEARS OLD OR OLDER, OR THE GUARDIAN OR GUAR-
 DIANS  OR  REPRESENTATIVE  OR REPRESENTATIVES OF ANY SUCH PERSON, IF ANY
 EXIST.
   (B) "SERVICES" MEANS ANY AND ALL CARE AND TREATMENT RENDERED TO ADULTS
 WITH DEVELOPMENTAL DISABILITIES (I) WHO ARE UNDER THE  CARE,  AUTHORITY,
 JURISDICTION,  SUPERVISION  OR  CONTROL  OF  THE  VARIOUS OFFICES OF THE
 DEPARTMENT, 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 DEVELOPMENTALLY 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 DEVELOP-
 MENTAL DISABILITIES, AND SHALL DEVELOP AND PROMULGATE REGULATIONS, POLI-
 A. 7912                             3
 
 CIES AND PROCEDURES NECESSARY TO RESOLVE OBJECTIONS BY OR ON  BEHALF  OF
 ADULTS WITH DEVELOPMENTAL DISABILITIES IN CONFORMANCE WITH THIS SECTION.
 SUCH  DUE  PROCESS PROTECTIONS SHALL BE AFFORDED TO ADULTS WITH DEVELOP-
 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 DEVELOPMENTAL DISABILI-
 TIES, 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 DEVELOPMENTAL DISABILI-
 TIES PURSUANT TO AN INDIVIDUALIZED TREATMENT PLAN, INCLUDING AN INDIVID-
 UALIZED 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
 DEVELOPMENTAL DISABILITIES; OR,
   (B) ANY OFFICE OF THE DEPARTMENT:
   (I) DENIES AN ADULT WITH DEVELOPMENTAL DISABILITIES SPECIFIC  SERVICES
 OR  A SPECIFIC PLACEMENT WHICH IS RECOMMENDED FOR THAT INDIVIDUAL PURSU-
 ANT 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 DEVELOP-
 MENTAL DISABILITIES.
   3. MINIMUM DUE PROCESS PROTECTIONS. DUE PROCESS PROTECTIONS FOR ADULTS
 WITH DEVELOPMENTAL DISABILITIES IMPLEMENTED BY THE  DEPARTMENT  AND  ITS
 OFFICES  SHALL INCLUDE, AT A MINIMUM, THE RIGHTS OF ADULTS WITH DEVELOP-
 MENTAL DISABILITIES:
   (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 DEVELOPMENTAL DISABILITIES AS TO HIS
 OR HER RIGHT TO FORMALLY OBJECT IN WRITING AND TO REQUEST AN ADMINISTRA-
 TIVE 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
 A. 7912                             4
 
 WHETHER THE TRIGGERING EVENT TAKEN OR PROPOSED BY THE RELEVANT OFFICE OF
 THE DEPARTMENT, IF ULTIMATELY ALLOWED, WOULD BE (I) IN THE OVERALL BEST,
 INDIVIDUAL  INTERESTS OF THE ADULT WITH DEVELOPMENTAL 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 DEVELOPMENTAL DISABILITIES IS  UNDER-
 GOING ADMINISTRATIVE AND/OR APPELLATE REVIEW, UNLESS AS OTHERWISE AGREED
 TO  BY SUCH OFFICE AND SUCH ADULT WITH DEVELOPMENTAL DISABILITIES OR HIS
 OR HER GUARDIAN 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  DEVELOPMENTAL  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 DEVELOPMENTAL DISABILITIES OR HIS  OR  HER  GUARDIAN  OR  REPRESEN-
 TATIVE.
   5.  THE  MINIMUM DUE PROCESS PROTECTIONS FOR ADULTS WITH DEVELOPMENTAL
 DISABILITIES SET FORTH WITHIN THIS SECTION SHALL SERVE TO SUPPLEMENT AND
 REINFORCE 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.