Senate Bill S5028A

2023-2024 Legislative Session

Relates to the creation of an innovative supportive housing program for persons with a developmental disability who wish and are able to safely live independently; creates an exemption from certain filings

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Archive: Last Bill Status - In Senate Committee Disabilities Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to disabilities
May 08, 2023	reported and committed to finance
May 02, 2023	print number 5028a
May 02, 2023	amend (t) and recommit to disabilities
Feb 22, 2023	referred to disabilities

Votes

- May 8, 2023 - Disabilities Committee Vote
  S5028A
  
  Aye
  
  6
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  
  0
  - - Disabilities Committee Vote: May 8, 2023
      
      aye (6)
      
      Ashby
      
      Felder
      
      Gonzalez
      
      Mannion
      
      Persaud
      
      Scarcella-Spanton
      
      nay (1)
      
      Weber

Bill Amendments

Original

A (Active)

co-Sponsors

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2023-S5028 - Details

Current Committee:: Senate Disabilities
Law Section:: Mental Hygiene Law
Laws Affected:: Add §16.38, Ment Hyg L; amd §352-g, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2021-2022: S8521
2025-2026: S4908

2023-S5028 - Summary

Relates to the creation of an innovative housing initiative for persons with a developmental disability who wish and are able to safely live independently; directs the division of housing and community renewal to establish guidelines for the dissemination of disclosure materials for the offer and sale of interests in residential environments formed under the innovative housing initiative; creates an exemption from certain filing requirements for residential environments that are formed as cooperative interests in realty for persons receiving services under the innovative housing initiative.

2023-S5028 - Sponsor Memo

                                 
BILL NUMBER: S5028

SPONSOR: MANNION
 
TITLE OF BILL:

An act to amend the mental hygiene law, in relation to the creation of
an innovative housing initiative for persons with a developmental disa-
bility who wish and are able to safely reside in such a setting; to
direct the division of housing and community renewal to establish guide-
lines for the dissemination of disclosure materials for the offer and
sale of interests in residential environments formed under the innova-
tive housing initiative; and to amend the general business law, in
relation to creating an exemption from certain filing requirements for
residential environments that are formed as cooperative interests in
realty for persons receiving services under the innovative housing
initiative

 
PURPOSE OR GENERAL IDEA:

The purpose of this bill is to provide innovative housing opportunities
for persons with a developmental disability and enable them to reside
together and live more independently.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill would establish the legislative purpose and find-
ings.

Section 2 of this bill would amend the Mental Hygiene Law by adding a
new section 16.38 titled Innovative Housing Initiative to provide that:

*the Office for People with Developmental Disabilities shall enable
persons with a developmental disability to live independently, with
support services, including staffing support, shared staffing support
and opportunities for social engagement and recreation, in a residential
environment.

*such residential environment may be comprised of a single housing unit
or multiple units of housing, in one or more buildings, including leased
residential housing, housing that qualifies as a cooperative interest in
realty and condominium units.

*the selection of the residential environment, the persons with whom the
individual lives and the determination that a person with a develop-
mental disability may independently live in such residential environ-
ment, with support services, shall be made solely by such person with a
disability and their qualified representative.

*in recognition of the requirement that the individual's experience
shall determine whether a residential environment is the most integrated
and appropriate for the needs of the person with a developmental disa-
bility, in determining eligibility for any housing program, support
services or other benefits, the office shall:

*honor the right of the person with a developmental disability to choose
the residential environment in which such individual may live and with
whom;


*maximize the types of residential settings in which a person with a
developmental disability may live while being eligible for funds through
a home and community based waiver, to the full extent permitted by
federal law; and,

*permit a number of persons with developmental disabilities to live in a
residential environment when viewed as a whole up to the full extent
permitted by federal law; .

*this section shall not limit or otherwise affect requirements applying
to an integrated supporting housing program administered by the office;
or projects developed as part of an empire state supportive housing
initiative.

*the Office and the Department of Health shall determine whether an
amendment to the state plan or a waiver is required to maximize federal
financial participation for the program. If the department determines it
is required or desirable, the department of health shall submit such
amendment or apply for such waiver within twelve months from the date of
such determination; and,

*This section shall not be construed to permit the operation without an
operating certificate of any provider of service requiring an operating
certificate under section 16.03 of this article.

Section 3 of this bill would provide that the division of housing and
community renewal shall establish guidelines for the dissemination of
disclosure materials for the offer and sale of interests in residential
environments formed under the innovative housing initiative established
by section 16.38 of the mental hygiene law, to ensure material informa-
tion is disclosed to a prospective purchaser.

Section 4 of this bill would amend section 352-g of the General Business
Law, to provide that residential environments that are formed as housing
development fund corporations and pursuant to section four hundred two
of the business corporation law where such residential environment is
formed for persons receiving services under the innovative housing
initiative established by section 16.38 of the mental hygiene law, shall
be exempt from any filing requirements of section three hundred fifty-
two-e of the general business law for the investment in any residential
environments and the conversion of any building, group of buildings or
development which are converted to a housing development fund corpo-
ration.

Section 5 of this bill would provide that the effective date shall take
effect immediately.

 
JUSTIFICATION:

In 1999, in the seminal case Olmstead v. L.C. (hereinafter "Olmstead"),
the United States Supreme Court held that governments must provide
community-based services to persons with disabilities when (i) such
services are appropriate; (ii) the affected persons do not oppose commu-
nity-based treatment; and (iii) community-based services can be reason-
ably accommodated, taking into account the resources available to the
public entity and the needs of others who are receiving disability
services from the entity.

As a result of Olmstead, as well as subsequent actions brought by fami-
lies and advocates, state and local governments are required to ensure
that persons with disabilities, including developmental disabilities,
can live in the most integrated setting appropriate for their needs.
Today, many persons with developmental disabilities live with a parent
or parents, a family member, or other similar direct support personnel.
However, many such persons wish to live more independently, and would do
so if an option existed that included certain supports. For such
persons, living with a parent or other direct support personnel is not
the most integrated setting that is appropriate for their needs.

Further, although family caregiving is appropriate in many instances, a
system that relies primarily on parents and similar direct support
personnel to provide a non-institutional living setting is not sustaina-
ble. The parent or direct support personnel eventually becomes unable to
continue supporting the person who has a developmental disability, due
to the direct support personnel's infirmity, death, or other concerns.

When that happens, the person with a developmental disability may need
to move to a certified housing setting, commonly referred to as a group
home, which is a more restrictive environment than an innovative housing
program could provide. Often, available group homes are located far from
the communities in which people have lived their entire lives. Although
group homes may be appropriate for some persons with developmental disa-
bilities, they are not appropriate for those persons with disabilities
who wish and are able to live more independently. Currently, group
homes, even for those who choose to live in that setting, do not number
nearly enough to meet the need.

A system that creates unnecessary pressure to place persons with devel-
opmental disabilities in group homes directly contravenes the spirit of
Olmstead. Perhaps more importantly, it works a double trauma upon the
person with a developmental disability, who has no option but to move
from their long-time home while, at the same time, grieving the loss of
a parent or direct support personnel.

Accordingly, there is a need to create new and innovative housing initi-
atives that maximize independence for persons with developmental disa-
bilities. This legislation will do just that. This legislation would
provide more opportunities to provide independent housing options to
persons with developmental disabilities, where such persons wish and are
able with support services to take advantage of such opportunities.

Indeed, in a recent letter, the Acting Deputy Administrator and Director
of the federal Centers for Medicare and Medicaid Services ("CMS") stated
that there is no cap or percentage used to determine whether housing for
people with developmental disabilities satisfies the federal home and
community-based setting rule, which is designed to ensure that Medicaid
funded housing programs comply with Olmstead principles. CMS clarified
that every state must assess each setting and "focus ... on the experi-
ence of the individual in the setting."

Persons with developmental disabilities can in fact live in close prox-
imity in a safe, healthy and integrated residential environment, espe-
cially when that environment is chosen by the person and augmented with
supports that maximize the person's independence and that are less
intensive than the services provided in an institutional setting.

Thus, to maximize the availability of innovative housing settings, this
legislation sets forth the criteria for the Office for People with
Developmental Disabilities ("OPWDD") to maximize the opportunity for
innovative housing initiatives that enable persons with developmental
disabilities to live more independently, with certain supports provided
through OPWDD, such as shared direct support personnel. In this way,
these housing initiatives will ensure that persons with developmental
disabilities are afforded settings that are the most integrated and
appropriate for their needs and honors their right to choose where they
may live and with whom.

The legislation also exempts residential environments that are formed as
housing development fund corporations from the filing requirements of
the Martin Act, and vests sole jurisdiction with the Division of Housing
and Community Renewal as the supervising agency of any residential envi-
ronment to determine disclosure requirements for investors and purchas-
ers of shares. This exemption will ensure that residential environments
that are formed under the private housing finance law are not impeded by
the strict filing requirements of the Martin Act given the roles of the
division of housing and community renewal as supervising agency of resi-
dential environments formed under the private housing finance law devel-
opment fund corporation.

 
LEGISLATIVE HISTORY:

2021-22: S.8521-C (Mannion) - Reported and committed to Finance.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S5028 - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5028
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 22, 2023
                                ___________
 
 Introduced  by  Sen. MANNION -- read twice and ordered printed, and when
   printed to be committed to the Committee on Disabilities
 
 AN ACT to amend the mental hygiene law, in relation to the  creation  of
   an  innovative  housing  initiative  for  persons with a developmental
   disability who wish and are able to safely reside in such  a  setting;
   to  direct  the division of housing and community renewal to establish
   guidelines for the dissemination of disclosure materials for the offer
   and sale of interests in residential  environments  formed  under  the
   innovative  housing initiative; and to amend the general business law,
   in relation to creating an exemption from certain filing  requirements
   for  residential environments that are formed as cooperative interests
   in realty for persons receiving services under the innovative  housing
   initiative
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Legislative purpose and findings.  The  legislature  hereby
 finds and declares as follows:
   (a)  New  York  state  is currently facing a severe housing crisis for
 people with developmental disabilities. Staffing shortages for certified
 housing, commonly referred to as group homes, has put  additional  pres-
 sure  on the state to provide alternative and innovative housing models,
 especially for those persons who are able to live more independently and
 wish to do so.
   (b) Many persons with developmental disabilities live with a parent or
 parents, a family member, or other  similar  direct  support  personnel.
 However, many such persons wish to live more independently, and would do
 so if an option existed that included certain appropriate supports.
   (c)  Further,  although  family  caregiving  is  appropriate  in  many
 instances, parents and similar direct support personnel  may  eventually
 become  unable to continue supporting the person who has a developmental

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05184-03-3
 S. 5028                             2

 
 disability, due to the direct support personnel's infirmity,  death,  or
 other concerns.
   (d)  Accordingly, there is a need to create new and innovative housing
 models that maximize independence for persons with  developmental  disa-
 bilities.  The  state should provide more independent housing options to
 persons with developmental disabilities, where such persons wish and are
 able to take advantage of such opportunities.
   (e) Thus, to maximize the availability of innovative housing settings,
 this legislation directs the office for people with developmental  disa-
 bilities  ("OPWDD")  to  create  an  Innovative  Housing Initiative that
 enables persons with developmental disabilities to live  more  independ-
 ently,  including  housing  that is owned or leased in their name, or by
 someone else on behalf of such person or that of a trust established for
 their benefit, with supports provided through OPWDD, such as availabili-
 ty of shared direct support personnel. In  this  way,  OPWDD  will  help
 ensure   that  persons  with  developmental  disabilities  are  afforded
 settings that are the most integrated and appropriate for their needs.
   § 2. The mental hygiene law is amended by adding a new  section  16.38
 to read as follows:
 § 16.38 INNOVATIVE HOUSING INITIATIVE.
   (A) THE OFFICE SHALL ENABLE PERSONS WITH A DEVELOPMENTAL DISABILITY TO
 LIVE  INDEPENDENTLY IN A RESIDENTIAL ENVIRONMENT, WITH SUPPORT SERVICES,
 INCLUDING BUT NOT LIMITED TO STAFFING SUPPORT, SHARED STAFFING  SUPPORT,
 AND OPPORTUNITIES FOR SOCIAL ENGAGEMENT AND RECREATION.
   (B)  SUCH RESIDENTIAL ENVIRONMENT MAY BE COMPRISED OF A SINGLE HOUSING
 UNIT OR MULTIPLE UNITS OF HOUSING, IN ONE OR MORE  BUILDINGS,  INCLUDING
 BUT  NOT  LIMITED TO: (I) LEASED RESIDENTIAL HOUSING UNITS; (II) HOUSING
 THAT QUALIFIES AS A COOPERATIVE INTEREST IN REALTY UNDER  SECTION  THREE
 HUNDRED  FIFTY-TWO-E  OF THE GENERAL BUSINESS LAW; AND (III) CONDOMINIUM
 UNITS UNDER ARTICLE NINE-B OF THE REAL PROPERTY LAW.   THE  INTEREST  IN
 SUCH RESIDENTIAL UNIT MAY BE LEASED OR OWNED BY A PERSON WITH A DEVELOP-
 MENTAL  DISABILITY, OR AN ENTITY ON BEHALF OF SUCH PERSON, INCLUDING BUT
 NOT LIMITED TO A TRUST ESTABLISHED FOR SUCH PERSON'S BENEFIT.  EACH UNIT
 OF RESIDENTIAL HOUSING MAY BE OCCUPIED BY NO MORE  THAN  THE  NUMBER  OF
 UNRELATED PERSONS PERMITTED BY LOCAL LAW.
   (C)  THE  SELECTION  OF  THE  RESIDENTIAL  ENVIRONMENT,  THE PERSON OR
 PERSONS WITH WHOM THEY LIVE AND THE DETERMINATION THAT  THEY  MAY  INDE-
 PENDENTLY  LIVE  IN SUCH RESIDENTIAL ENVIRONMENT, WITH SUPPORT SERVICES,
 SHALL BE MADE SOLELY BY SUCH PERSON WITH A DEVELOPMENTAL DISABILITY  AND
 THEIR QUALIFIED REPRESENTATIVE.
   (D) IN RECOGNITION OF THE REQUIREMENT THAT THE INDIVIDUAL'S EXPERIENCE
 SHALL DETERMINE WHETHER A RESIDENTIAL ENVIRONMENT IS THE MOST INTEGRATED
 AND  APPROPRIATE  FOR THE NEEDS OF THE PERSON WITH A DEVELOPMENTAL DISA-
 BILITY, IN DETERMINING ELIGIBILITY  FOR  ANY  HOUSING  PROGRAM,  SUPPORT
 SERVICES OR OTHER BENEFITS, THE OFFICE SHALL:
   (1)  HONOR  THE RIGHT OF THE PERSON WITH A DEVELOPMENTAL DISABILITY TO
 CHOOSE THE RESIDENTIAL ENVIRONMENT AND WITH WHOM THEY MAY LIVE;
   (2) MAXIMIZE THE TYPES OF RESIDENTIAL ENVIRONMENTS IN WHICH  A  PERSON
 WITH  A DEVELOPMENTAL DISABILITY MAY LIVE WHILE BEING ELIGIBLE FOR FUNDS
 THROUGH A HOME AND COMMUNITY BASED WAIVER TO THE FULL  EXTENT  PERMITTED
 BY FEDERAL LAW; AND
   (3) PERMIT A NUMBER OF PERSONS WITH A DEVELOPMENTAL DISABILITY TO LIVE
 IN  A  RESIDENTIAL  ENVIRONMENT  WHEN  VIEWED  AS A WHOLE UP TO THE FULL
 EXTENT PERMITTED BY FEDERAL LAW.
   (E) THIS SECTION SHALL NOT  LIMIT  OR  OTHERWISE  AFFECT  REQUIREMENTS
 APPLYING TO:
 S. 5028                             3
 
   (1)  AN  INTEGRATED  SUPPORTIVE  HOUSING  PROGRAM  ADMINISTERED BY THE
 OFFICE IN COORDINATION  WITH  THE  DIVISION  OF  HOUSING  AND  COMMUNITY
 RENEWAL  (COMMONLY  REFERRED  TO  AS  THE INTEGRATIVE SUPPORTIVE HOUSING
 PROGRAM OR "ISH"); OR
   (2)  PROJECTS  DEVELOPED AS PART OF AN EMPIRE STATE SUPPORTIVE HOUSING
 INITIATIVE (COMMONLY REFERRED TO AS "ESSHI").
   (F) THE OFFICE SHALL COORDINATE  WITH  THE  DEPARTMENT  OF  HEALTH  TO
 DETERMINE  WHETHER  AN AMENDMENT TO THE STATE PLAN AUTHORIZED BY SECTION
 THREE HUNDRED SIXTY-THREE-A OF THE SOCIAL SERVICES LAW OR  A  WAIVER  IS
 REQUIRED  FROM  THE  FEDERAL  CENTERS FOR MEDICARE AND MEDICAID SERVICES
 ("CMS") TO MAXIMIZE FEDERAL FINANCIAL PARTICIPATION FOR  THE  INITIATIVE
 DESCRIBED  IN  THIS  SECTION NO MORE THAN THIRTY DAYS FROM THE EFFECTIVE
 DATE OF THIS SECTION. IF THE OFFICE DETERMINES THAT AN AMENDMENT TO  THE
 STATE  PLAN  OR  A  WAIVER  IS  REQUIRED OR DESIRABLE, THE DEPARTMENT OF
 HEALTH SHALL SUBMIT SUCH AMENDMENT OR APPLY TO CMS FOR SUCH WAIVER WITH-
 IN TWELVE MONTHS FROM THE DATE OF SAID DETERMINATION.
   (G) THE OFFICE MAY CONDUCT PUBLIC HEARINGS TO RECEIVE  PUBLIC  COMMENT
 ON  HOW RESIDENTIAL ENVIRONMENTS THAT INCLUDE INNOVATIVE HOUSING AUTHOR-
 IZED BY THIS SECTION CAN BEST BE INTEGRATED WITH THE BROADER COMMUNITY.
   (H) THIS SECTION SHALL NOT BE CONSTRUED TO PERMIT THE OPERATION  WITH-
 OUT  AN  OPERATING CERTIFICATE OF A COMMUNITY RESIDENCE, COMMUNITY RESI-
 DENTIAL FACILITY FOR THE DISABLED, SUPERVISED LIVING FACILITY,  SUPPORT-
 IVE  LIVING  FACILITY,  OR  ANY  OTHER  PROVIDER OF SERVICE REQUIRING AN
 OPERATING CERTIFICATE UNDER SECTION 16.03 OF THIS  ARTICLE.  NOTHING  IN
 THIS  SECTION  SHALL  BE  INTERPRETED  AS AUTHORIZING AN INCREASE IN THE
 NUMBER OF BEDS APPROVED FOR A COMMUNITY RESIDENCE, COMMUNITY RESIDENTIAL
 FACILITY FOR THE DISABLED, SUPERVISED LIVING FACILITY, SUPPORTIVE LIVING
 FACILITY, OR ANY  OTHER  PROVIDER  OF  SERVICE  REQUIRING  AN  OPERATING
 CERTIFICATE UNDER SECTION 16.03 OF THIS ARTICLE.
   (I)  RESIDENTIAL  ENVIRONMENTS  IN  WHICH PERSONS WITH A DEVELOPMENTAL
 DISABILITY RECEIVE SERVICES PURSUANT TO THE  INNOVATIVE  HOUSING  INITI-
 ATIVE DESCRIBED BY THIS SECTION SHALL NOT DISCRIMINATE AGAINST ANY RESI-
 DENT OR POTENTIAL RESIDENT BASED ON RACE, CREED, AGE OTHER THAN BEING AT
 LEAST  EIGHTEEN  YEARS  OF AGE, COLOR, NATIONAL ORIGIN, SEX, DISABILITY,
 MARITAL STATUS, MILITARY  STATUS,  FAMILY  STATUS,  SEXUAL  ORIENTATION,
 GENDER  IDENTITY  OR  EXPRESSION,  OR ANY OTHER PROTECTED CHARACTERISTIC
 UNDER THE NEW YORK STATE HUMAN RIGHTS LAW.
   § 3. The division of housing and  community  renewal  shall  establish
 guidelines  for  the dissemination of disclosure materials for the offer
 and sale of interests in residential environments formed under the inno-
 vative housing initiative established by section  16.38  of  the  mental
 hygiene  law,  including  (a)  housing  that  qualifies as a cooperative
 interest in realty under section 352-e of the general business law;  (b)
 condominium  units  under article 9-B of  the real property law; and (c)
 shares in a housing development fund  corporation  which  are  otherwise
 exempt  from  the  filing  requirements  of section 352-e of the general
 business law,  to  ensure  material  information  is  disclosed  to  any
 prospective  shareholder  that:  (i)  fully  describes  the  risks  to a
 prospective shareholder's investment; and (ii) encourages  the  prospec-
 tive  shareholder  to consult with legal counsel prior to purchasing any
 shares.  The division of housing and community renewal  shall  make  the
 disclosure  guidelines  publicly  available on its website in compliance
 with section 102(14) of the state administrative procedure act.
   § 4. Section 352-g of the general business law, as  added  by  chapter
 987 of the laws of 1960, is amended to read as follows:
 S. 5028                             4
 
   §  352-g.  Exemptions. (A) The attorney general, upon application, may
 exempt from the provisions of sections three hundred fifty-two-e,  three
 hundred fifty-two-f and three hundred fifty-two-h any offerings of secu-
 rities  (1)  made  to persons not exceeding forty in number or (2) which
 securities  have  been fully registered with the securities and exchange
 commission of the United States of America or have received an exemption
 therefrom for reasons other than said offering is an intrastate offering
 to residents of the state of New York only.
   (B) RESIDENTIAL ENVIRONMENTS THAT ARE FORMED  AS  HOUSING  DEVELOPMENT
 FUND  CORPORATIONS PURSUANT TO ARTICLE XI OF THE PRIVATE HOUSING FINANCE
 LAW AND SECTION FOUR HUNDRED TWO OF THE BUSINESS CORPORATION  LAW  WHERE
 SUCH  RESIDENTIAL  ENVIRONMENT  IS FORMED FOR PERSONS RECEIVING SERVICES
 UNDER THE INNOVATIVE HOUSING INITIATIVE ESTABLISHED BY SECTION 16.38  OF
 THE  MENTAL  HYGIENE LAW AND WHERE THE DIVISION OF HOUSING AND COMMUNITY
 RENEWAL IS THE SUPERVISING AGENCY AS DEFINED  BY  SECTION  FIVE  HUNDRED
 SEVENTY-TWO  OF  THE PRIVATE HOUSING FINANCE LAW, AND WHERE THE DIVISION
 OF HOUSING AND COMMUNITY RENEWAL REQUIRES THE HOUSING  DEVELOPMENT  FUND
 CORPORATION  TO  ENTER INTO A MONITORING AGREEMENT WITH A QUALIFIED NOT-
 FOR-PROFIT WITH EXPERIENCE IN THE OVERSIGHT, SUPPORT AND  MANAGEMENT  OF
 HOUSING  DEVELOPMENT  FUND  CORPORATIONS SHALL BE EXEMPT FROM ANY FILING
 REQUIREMENTS OF SECTION THREE HUNDRED FIFTY-TWO-E OF  THIS  ARTICLE  FOR
 THE INVESTMENT IN ANY RESIDENTIAL ENVIRONMENTS AND THE CONVERSION OF ANY
 BUILDING,  GROUP  OF  BUILDINGS  OR DEVELOPMENT WHICH ARE CONVERTED TO A
 HOUSING DEVELOPMENT FUND CORPORATION.
   § 5. This act shall take effect immediately.

co-Sponsors

View additional co-sponsors

2023-S5028A (ACTIVE) - Details

Current Committee:: Senate Disabilities
Law Section:: Mental Hygiene Law
Laws Affected:: Add §16.38, Ment Hyg L; amd §352-g, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2021-2022: S8521
2025-2026: S4908

2023-S5028A (ACTIVE) - Summary

2023-S5028A (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S5028A

SPONSOR: MANNION
 
TITLE OF BILL:

An act to amend the mental hygiene law, in relation to the creation of
an innovative housing initiative for persons with a developmental disa-
bility who wish and are able to safely live independently; to direct the
division of housing and community renewal to establish guidelines for
the dissemination of disclosure materials for the offer and sale of
interests in residential environments formed under the innovative hous-
ing initiative; and to amend the general business law, in relation to
creating an exemption from certain filing requirements for residential
environments that are formed as cooperative interests in realty for
persons receiving services under the innovative housing initiative

 
PURPOSE OR GENERAL IDEA:

The purpose of this bill is to provide innovative housing opportunities
for persons with a developmental disability and enable them to reside
together and live more independently.

SUMMARY OF PROVISIONS:

Section 1 of this bill would amend the Mental Hygiene Law by adding a
new section 16.38 titled Innovative Housing Initiative to provide that:

*the Office for People with Developmental Disabilities (OPWDD) shall
assist persons with a developmental disability to live independently,
with support services, including staffing support, shared staffing
support and opportunities for social engagement and recreation, in a
residential environment; and,

*such residential environment may be comprised of a single housing unit
or multiple units of housing, in one or more buildings, including leased
residential housing, housing that qualifies as a cooperative interest in
realty and condominium units.

Section 2 of this bill would require that OPWDD conduct public hearings
on residential environments that include the innovative housing initi-
ative.

Section 3 of this bill would provide that the division of housing and
community renewal shall establish guidelines for the dissemination of
disclosure materials for the offer and sale of interests in residential
environments formed under the innovative housing initiative, to ensure
material information is disclosed to a prospective purchaser.

Section 4 of this bill would amend section 352-g of the General Business
Law, to provide that residential environments that are formed as housing
development fund corporations and pursuant to section four hundred two
of the business corporation law where such residential environment is
formed for persons receiving services under the innovative housing
initiative established by section 16.38 of the mental hygiene law, shall
be exempt from any filing requirements of section three hundred fifty-
two-e of the general business law for the investment in any residential
environments and the conversion of any building, group of buildings or
development which are converted to a housing development fund corpo-
ration.
Section 5 of this bill would provide that the effective date shall take
effect one year after it shall have become a law; provided, however,
that section two of this act shall take effect immediately.  Effective
immediately, the addition, amendment, and/or repeal of any rule or regu-
lation necessary for the implementation of this act on its effective
date are authorized to be made and completed on or before such effective
date.

 
JUSTIFICATION:

In 1999, in the seminal case Olmstead v. L.C. (hereinafter "Olmstead"),
the United States Supreme Court held that governments must provide
community-based services to persons with disabilities when (i) such
services are appropriate; (ii) the affected persons do not oppose commu-
nity-based treatment; and (iii) community-based services can be reason-
ably accommodated, taking into account the resources available to the
public entity and the needs of others who are receiving disability
services from the entity.

As a result of Olmstead, as well as subsequent actions brought by fami-
lies and advocates, state and local governments are required to ensure
that persons with disabilities, including developmental disabilities,
can live in the most integrated setting appropriate for their needs.
Today, many persons with developmental disabilities live with a parent
or parents, a family member, or other similar direct support personnel.
However, many such persons wish to live more independently, and would do
so if an option existed that included certain supports. For such
persons, living with a parent or other direct support personnel is not
the most integrated setting that is appropriate for their needs.

Further, although family caregiving is appropriate in many instances, a
system that relies primarily on parents and similar direct support
personnel to provide a non-institutional living setting is not sustaina-
ble. The parent or direct support personnel eventually becomes unable to
continue supporting the person who has a developmental disability, due
to the direct support personnel's infirmity, death, or other concerns.

When that happens, the person with a developmental disability may need
to move to a certified housing setting, commonly referred to as a group
home, which is a more restrictive environment than an innovative housing
program could provide. Often, available group homes are located far from
the communities in which people have lived their entire lives. Although
group homes may be appropriate for some persons with developmental disa-
bilities, they are not appropriate for those persons with disabilities
who wish and are able to live more independently. Currently, group
homes, even for those who choose to live in that setting, do not number
nearly enough to meet the need.

A system that creates unnecessary pressure to place persons with devel-
opmental disabilities in group homes directly contravenes the spirit of
Olmstead. Perhaps more importantly, it works a double trauma upon the
person with a developmental disability, who has no option but to move
from their long-time home while, at the same time, grieving the loss of
a parent or direct support personnel.

Accordingly, there is a need to create new and innovative housing initi-
atives that maximize independence for persons with developmental disa-
bilities. This bill would provide more opportunities to provide inde-
pendent housing options to persons with developmental disabilities,
where such persons wish and are able with support services to take
advantage of such opportunities.

Indeed, in a recent letter, the Acting Deputy Administrator and Director
of the federal Centers for Medicare and Medicaid Services ("CMS") stated
that there is no cap or percentage used to determine whether housing for
people with developmental disabilities satisfies the federal home and
community-based setting rule, which is designed to ensure that Medicaid
funded housing programs comply with Olmstead principles. CMS clarified
that every state must assess each setting and "focus ... on the experi-
ence of the individual in the setting."

Persons with developmental disabilities can in fact live in close prox-
imity in a safe, healthy and integrated residential environment, espe-
cially when that environment is chosen by the person and augmented with
supports that maximize the person's independence and that are less
intensive than the services provided in an institutional setting.

Thus, to maximize the availability of innovative housing settings, this
legislation sets forth the criteria for the Office for People with
Developmental Disabilities ("OPWDD") to maximize the opportunity for
innovative housing initiatives that enable persons with developmental
disabilities to live more independently, with certain supports provided
through OPWDD, such as shared direct support personnel. In this way,
these housing initiatives will ensure that persons with developmental
disabilities are afforded settings that are the most integrated and
appropriate for their needs and honors their right to choose where they
may live and with whom.

The bill would also exempt residential environments that are formed as
housing development fund corporations from the filing requirements of
the Martin Act, and vests sole jurisdiction with the Division of Housing
and Community Renewal as the supervising agency of any residential envi-
ronment to determine disclosure requirements for investors and purchas-
ers of shares. This exemption will ensure that residential environments
that are formed under the private housing finance law are not impeded by
the strict filing requirements of the Martin Act given the roles of the
division of housing and community renewal as supervising agency of resi-
dential environments formed under the private housing finance law devel-
opment fund corporation.

 
LEGISLATIVE HISTORY:

2021-22: S.8521-C (Mannion) - Reported and committed to Finance.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
This act shall take effect one year after it shall have become a law;
provided, however, that section two of this act shall take effect imme-
diately. Effective immediately, the addition, amendment, and/or repeal
of any rule or regulation necessary for the implementation of this act
on its effective date are authorized to be made and completed on or
before such effective date.

2023-S5028A (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5028--A
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 22, 2023
                                ___________
 
 Introduced by Sens. MANNION, ADDABBO, ASHBY, CLEARE, GALLIVAN, GONZALEZ,
   HOYLMAN-SIGAL,  KENNEDY,  MAY,  PALUMBO,  SALAZAR,  SCARCELLA-SPANTON,
   WEBB, WEBER -- read twice and ordered printed, and when printed to  be
   committed  to  the  Committee on Disabilities -- committee discharged,
   bill amended, ordered reprinted as amended  and  recommitted  to  said
   committee
 
 AN  ACT  to amend the mental hygiene law, in relation to the creation of
   an innovative housing initiative  for  persons  with  a  developmental
   disability  who  wish  and  are  able to safely live independently; to
   direct the division of housing  and  community  renewal  to  establish
   guidelines for the dissemination of disclosure materials for the offer
   and  sale  of  interests  in residential environments formed under the
   innovative housing initiative; and to amend the general business  law,
   in  relation to creating an exemption from certain filing requirements
   for residential environments that are formed as cooperative  interests
   in  realty for persons receiving services under the innovative housing
   initiative
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  The mental hygiene law is amended by adding a new section
 16.38 to read as follows:
 § 16.38 INNOVATIVE HOUSING INITIATIVE.
   (A) THE OFFICE SHALL ASSIST A PERSON WITH A  DEVELOPMENTAL  DISABILITY
 TO LIVE INDEPENDENTLY, WHERE APPROPRIATE, IN A NON-CERTIFIED RESIDENTIAL
 ENVIRONMENT,  WITH SUPPORT SERVICES, INCLUDING BUT NOT LIMITED TO STAFF-
 ING SUPPORT, SHARED  STAFFING  SUPPORT,  AND  OPPORTUNITIES  FOR  SOCIAL
 ENGAGEMENT AND RECREATION, WHEN DETERMINED BY THE OFFICE TO BE AN APPRO-
 PRIATE NON-CERTIFIED RESIDENTIAL ENVIRONMENT FOR SUCH PERSON.
   (B)  SUCH RESIDENTIAL ENVIRONMENT MAY BE COMPRISED OF A SINGLE HOUSING
 UNIT OR MULTIPLE UNITS OF HOUSING, IN ONE OR MORE  BUILDINGS,  INCLUDING
 BUT  NOT  LIMITED TO: (I) LEASED RESIDENTIAL HOUSING UNITS; (II) HOUSING
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05184-07-3

 S. 5028--A                          2
 
 THAT QUALIFIES AS A COOPERATIVE INTEREST IN REALTY UNDER  SECTION  THREE
 HUNDRED  FIFTY-TWO-E  OF THE GENERAL BUSINESS LAW; AND (III) CONDOMINIUM
 UNITS UNDER ARTICLE NINE-B OF THE REAL PROPERTY LAW.   THE  INTEREST  IN
 SUCH RESIDENTIAL UNIT MAY BE LEASED OR OWNED BY A PERSON WITH A DEVELOP-
 MENTAL  DISABILITY, OR AN ENTITY ON BEHALF OF SUCH PERSON, INCLUDING BUT
 NOT LIMITED TO A TRUST ESTABLISHED FOR SUCH PERSON'S BENEFIT.  EACH UNIT
 OF RESIDENTIAL HOUSING MAY BE OCCUPIED BY NO MORE  THAN  THE  NUMBER  OF
 UNRELATED  PERSONS PERMITTED BY LOCAL LAW, OR OTHER APPLICABLE LAW, RULE
 OR REGULATION.
   (C) THE OFFICE SHALL HAVE THE AUTHORITY TO DETERMINE A PERSON'S ELIGI-
 BILITY FOR THE  INNOVATIVE  HOUSING  INITIATIVE  AS  DESCRIBED  IN  THIS
 SECTION, INCLUDING:
   (1)  WHERE A PERSON WITH A DEVELOPMENTAL DISABILITY MAY PREFER TO LIVE
 AND WITH WHOM THEY MAY PREFER TO LIVE WITH, WHERE APPROPRIATE;
   (2) MAXIMIZING THE TYPES OF RESIDENTIAL ENVIRONMENTS IN WHICH A PERSON
 WITH A DEVELOPMENTAL  DISABILITY  MAY  LIVE  WHILE  BEING  ELIGIBLE  FOR
 SERVICES  AUTHORIZED AND FUNDED THROUGH A HOME AND COMMUNITY BASED WAIV-
 ER, OR OTHER PAYMENT MECHANISM, AS APPROPRIATE,  AS  DETERMINED  BY  THE
 OFFICE, TO THE FULL EXTENT PERMITTED; AND
   (3)  PERMITTING A NUMBER OF PERSONS WITH A DEVELOPMENTAL DISABILITY TO
 LIVE IN A RESIDENTIAL ENVIRONMENT, WHERE APPROPRIATE AND TO  THE  EXTENT
 PERMITTED.
   (D)  THIS  SECTION  SHALL  NOT  LIMIT OR OTHERWISE AFFECT REQUIREMENTS
 APPLYING TO:
   (1) AN INTEGRATED  SUPPORTIVE  HOUSING  PROGRAM  ADMINISTERED  BY  THE
 OFFICE  IN  COORDINATION  WITH  THE  DIVISION  OF  HOUSING AND COMMUNITY
 RENEWAL (COMMONLY REFERRED TO  AS  THE  INTEGRATIVE  SUPPORTIVE  HOUSING
 PROGRAM OR "ISH"); OR
   (2)  PROJECTS  DEVELOPED AS PART OF AN EMPIRE STATE SUPPORTIVE HOUSING
 INITIATIVE (COMMONLY REFERRED TO AS "ESSHI").
   (E) THE OFFICE SHALL COORDINATE  WITH  THE  DEPARTMENT  OF  HEALTH  TO
 DETERMINE  WHETHER  AN AMENDMENT TO THE STATE PLAN AUTHORIZED BY SECTION
 THREE HUNDRED SIXTY-THREE-A OF THE SOCIAL SERVICES LAW OR  A  WAIVER  IS
 REQUIRED  FROM  THE  FEDERAL  CENTERS FOR MEDICARE AND MEDICAID SERVICES
 ("CMS") TO MAXIMIZE FEDERAL FINANCIAL PARTICIPATION FOR  THE  INITIATIVE
 DESCRIBED  IN THIS SECTION NO MORE THAN ONE HUNDRED EIGHTY DAYS FROM THE
 EFFECTIVE DATE OF THIS SECTION. IF THE OFFICE DETERMINES THAT AN  AMEND-
 MENT TO THE STATE PLAN OR A WAIVER IS REQUIRED OR DESIRABLE, THE DEPART-
 MENT  OF  HEALTH  SHALL  SUBMIT  SUCH AMENDMENT OR APPLY TO CMS FOR SUCH
 WAIVER.
   (F) THIS SECTION SHALL NOT BE CONSTRUED TO PERMIT THE OPERATION  WITH-
 OUT  AN  OPERATING CERTIFICATE OF A COMMUNITY RESIDENCE, COMMUNITY RESI-
 DENTIAL FACILITY FOR THE DISABLED, SUPERVISED LIVING FACILITY,  SUPPORT-
 IVE  LIVING  FACILITY,  OR  ANY  OTHER  PROVIDER OF SERVICE REQUIRING AN
 OPERATING CERTIFICATE UNDER SECTION 16.03 OF THIS  ARTICLE.  NOTHING  IN
 THIS  SECTION  SHALL  BE  INTERPRETED  AS AUTHORIZING AN INCREASE IN THE
 NUMBER OF BEDS APPROVED FOR A COMMUNITY RESIDENCE, COMMUNITY RESIDENTIAL
 FACILITY FOR THE DISABLED, SUPERVISED LIVING FACILITY, SUPPORTIVE LIVING
 FACILITY, OR ANY  OTHER  PROVIDER  OF  SERVICE  REQUIRING  AN  OPERATING
 CERTIFICATE UNDER SECTION 16.03 OF THIS ARTICLE.
   (G)  RESIDENTIAL  ENVIRONMENTS  IN  WHICH PERSONS WITH A DEVELOPMENTAL
 DISABILITY RECEIVE SERVICES PURSUANT TO THE  INNOVATIVE  HOUSING  INITI-
 ATIVE DESCRIBED BY THIS SECTION SHALL NOT DISCRIMINATE AGAINST ANY RESI-
 DENT OR POTENTIAL RESIDENT BASED ON RACE, CREED, AGE OTHER THAN BEING AT
 LEAST  EIGHTEEN  YEARS  OF AGE, COLOR, NATIONAL ORIGIN, SEX, DISABILITY,
 MARITAL STATUS, MILITARY  STATUS,  FAMILY  STATUS,  SEXUAL  ORIENTATION,
 S. 5028--A                          3
 
 GENDER  IDENTITY  OR  EXPRESSION,  OR ANY OTHER PROTECTED CHARACTERISTIC
 UNDER THE NEW YORK STATE HUMAN RIGHTS LAW.
   §  2.  The  office  for  people  with developmental disabilities shall
 conduct public hearings on residential  environments  that  include  the
 innovative  housing initiative as described pursuant to section 16.38 of
 the mental hygiene law.
   § 3. The division of housing and  community  renewal  shall  establish
 guidelines  for  the dissemination of disclosure materials for the offer
 and sale of interests in residential environments formed under the inno-
 vative housing initiative established by section  16.38  of  the  mental
 hygiene  law,  including  (a)  housing  that  qualifies as a cooperative
 interest in realty under section 352-e of the general business law;  (b)
 condominium  units  under article 9-B of  the real property law; and (c)
 shares in a housing development fund  corporation  which  are  otherwise
 exempt  from  the  filing  requirements  of section 352-e of the general
 business law,  to  ensure  material  information  is  disclosed  to  any
 prospective  shareholder  that:  (i)  fully  describes  the  risks  to a
 prospective shareholder's investment; and (ii) encourages  the  prospec-
 tive  shareholder  to consult with legal counsel prior to purchasing any
 shares.  The division of housing and community renewal  shall  make  the
 disclosure  guidelines  publicly  available on its website in compliance
 with section 102(14) of the state administrative procedure act.
   § 4. Section 352-g of the general business law, as  added  by  chapter
 987 of the laws of 1960, is amended to read as follows:
   §  352-g.  Exemptions. (A) The attorney general, upon application, may
 exempt from the provisions of sections three hundred fifty-two-e,  three
 hundred  fifty-two-f  and  three hundred fifty-two-h OF THIS ARTICLE any
 offerings of securities (1) made  to  persons  not  exceeding  forty  in
 number or (2) which securities have been fully registered with the secu-
 rities  and  exchange commission of the United States of America or have
 received an exemption therefrom for reasons other than said offering  is
 an intrastate offering to residents of the state of New York only.
   (B)  RESIDENTIAL  ENVIRONMENTS  THAT ARE FORMED AS HOUSING DEVELOPMENT
 FUND CORPORATIONS PURSUANT TO ARTICLE XI OF THE PRIVATE HOUSING  FINANCE
 LAW  AND  SECTION FOUR HUNDRED TWO OF THE BUSINESS CORPORATION LAW WHERE
 SUCH RESIDENTIAL ENVIRONMENT IS FORMED FOR  PERSONS  RECEIVING  SERVICES
 UNDER  THE INNOVATIVE HOUSING INITIATIVE ESTABLISHED BY SECTION 16.38 OF
 THE MENTAL HYGIENE LAW AND WHERE THE DIVISION OF HOUSING  AND  COMMUNITY
 RENEWAL  IS  THE  SUPERVISING  AGENCY AS DEFINED BY SECTION FIVE HUNDRED
 SEVENTY-TWO OF THE PRIVATE HOUSING FINANCE LAW, AND WHERE  THE  DIVISION
 OF  HOUSING  AND COMMUNITY RENEWAL REQUIRES THE HOUSING DEVELOPMENT FUND
 CORPORATION TO ENTER INTO A MONITORING AGREEMENT WITH A  QUALIFIED  NOT-
 FOR-PROFIT  WITH  EXPERIENCE IN THE OVERSIGHT, SUPPORT AND MANAGEMENT OF
 HOUSING DEVELOPMENT FUND CORPORATIONS SHALL BE EXEMPT  FROM  ANY  FILING
 REQUIREMENTS  OF  SECTION  THREE HUNDRED FIFTY-TWO-E OF THIS ARTICLE FOR
 THE INVESTMENT IN ANY RESIDENTIAL ENVIRONMENTS AND THE CONVERSION OF ANY
 BUILDING, GROUP OF BUILDINGS OR DEVELOPMENT WHICH  ARE  CONVERTED  TO  A
 HOUSING DEVELOPMENT FUND CORPORATION.
   §  5. This act shall take effect one year after it shall have become a
 law; provided, however, that section two of this act shall  take  effect
 immediately.  Effective  immediately,  the  addition,  amendment, and/or
 repeal of any rule or regulation necessary  for  the  implementation  of
 this  act  on its effective date are authorized to be made and completed
 on or before such effective date.

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