BILL NUMBER: S7279

SPONSOR: SCARCELLA-SPANTON
 
TITLE OF BILL:

An act to amend the surrogate's court procedure act, in relation to
authorizing certified school psychologists to participate in the certif-
ication of certain persons as intellectually disabled or developmentally
disabled

 
SUMMARY OF PROVISIONS:

Section 1. Subdivisions 1 and 2 of section 1750 of the surrogate's court
procedure act, as amended by chapter 198 of the laws of 2016, are
amended to read as follows:

1. For the purposes of article, a person who is intellectually disabled
is a person who has been certified by one licensed physician and one
licensed psychologist, one licensed physician and one certified school
psychologist, or by two licensed physicians at least one of whom is
familiar with or has professional knowledge in the care and treatment of
persons with an intellectual disability, having qualifications to make
sure certification, as being incapable to manage  
              

HIM OR HERSELF AND/OR
HIS OR HER themselves and/or their affairs by reason of intellectual
disability and that such condition is (permanent in nature or likely to
continue indefinitely.

2. Every such certification pursuant to subdivision one of this section,
made on or after the effective date of this subdivision, shall include a
specific determination by such physician and psychologist, such physi-
cian and such certified school psychologist, or by such physicians, as
to whether the person who is intellectually disabled has the capacity to
make health care decisions, as defined by subdivision three of section
twenty-nine hundred eighty of the public health law, for (himself or
herself) themself.

§ 2. Subdivisions 1 and 2 of section 1750-a of the surrogate's court
procedure act, as amended by chapter 198 of the laws of 2016, are
amended to read as follows:

1. When it appears to the satisfaction of the court that a person is a
person who is developmentally disabled, the court is authorized to
appoint a guardian of the person or of the property or of both if such
appointment of a guardian or guardians is in the best interest of the
person who is developmentally disabled. The purpose of this article, a
person who is developmentally disabled is a person who has been certi-
fied by one licensed physician and one licensed psychologist, one
licensed physician and one certified school psychologist, or by two
licensed physicians at least one of whom is familiar with or has profes-
sional knowledge in the care and treatment of persons with developmental
disabilities, having qualifications to make such certification, as
having an impaired ability to understand and appreciate the nature and
consequences of decisions which result in such person being incapable of
managing (himself or herself and/or his or her') themselves and/or their
affairs by reason of developmental disability and that such condition is
permanent in nature or likely to continue indefinitely, and whose disa-
bility:


(a) Is attributable to cerebral palsy, epilepsy, neurological impair-
ment, autism or traumatic head injury;

(b) Is attributable to any other condition of a person found to be
closely related to intellectual disability because such condition
results in similar impairment of general intellectual functioning or
adaptive behavior to that of persons with intellectual disabilities; or

(c) Is attributable to dyslexia resulting from a disability described in
(subdivision one) paragraph (a) or (two) (b) of this (section) subdivi-
sion or from intellectual disability; and

(d) Originates before such person attains age twenty-two , provided,
however, that no such age of origination shall apply for the purposes of
this article to a person with traumatic head injury.

2. Notwithstanding any provision of law to the contrary for the purposes
of subdivision two of section seventeen hundred fifty and section seven-
teen hundred fifty-b of this article, (") any reference made to a person
who is intellectually disabled (and his r her) and/or such person's
guardian(") shat (also) mean or include a person (and his or he) and/or
such person's guardian appointed pursuant to this section; provided that
such person has been certified, by the physicians (and/or psychologists)
or by the physician and the psychologist or the certified school
psychologist, as specified in subdivision one of this section, as (i)
having an intellectual disabilitiy, or (ii) having a developmental disa-
bility, as defined in section 1.03 of the mental hygiene law, which (A)
includes intellectual disability, or (B) results in a similar impairment
of general intellectual functioning or adaptive behavior so that such
person is incapable of managing (himself or herself, and/or his or her)
themseif and/or their affairs by reason of such developmental disabili-
ty.

§ 3. Relates to the effective date.

 
JUSTIFICATION:

When parents wish to apply for SCPA Article 17- A guardianship, they
have to go through many steps including getting a certification of a
developmentally or intellectually disabled person. The current SCPA
defines that in order for a person to be intellectually disabled they
have to be certified by one licensed physician and one licensed psychol-
ogist or two licensed physicians. This allows a licensed physician to
certify that a person is disabled, however, it prevents unlicensed
school psychologists in NYC from providing a certification. This creates
a high demand and causes a holdup within the courts (Up to 7 months in
Staten Island, In Manhattan, the waiting period is longer).

Typically, when a parent or proposed guardian wishes to apply for SCPA
Article 17-A guardianship, parents obtain the affidavit of the person's
licensed physician, who examines that person two to four times per
year., and an affidavit of a licensed psychologist or second physician,
who has never examined or treated that person, apart from this request.
The affidavits pertaining to the person's disability include short-form
answers only stating the diagnosis and minimal requirements to meet the
diagnosis. They usually dont inform the reader of the person's competen-
cies and limitations because the licensed physician or psychologist does
not have experience with the person like that of a parent or school
professional. Also, most times the actual exam and affidavits are based
on test scores, not experience, and the visit isn't covered by insur-
ance. On the other hand, every District 75 school in NYC has a School
psychologist and school counselor. They interact with the students a lot
and witness their development. They can explain in detail the capabili-
ties and weaknesses of children in their educational setting and their
future prognosis. This type of affidavit would be informative and
provide the court with a complete picture of the person for whom a
comprehensive guardianship is sought. School psychologists are required
to be certified to work within a school setting; it just doesn't require
a doctoral program.

 
LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

Yet to be determined.

 
EFFECTIVE DATE:
This act shall take effect immediately.