Bill S3078-2011

Relates to the discharge of residents of a community residence

Relates to the discharge of residents of a community residence; provides that nothing shall be deemed construed as creating a relationship of landlord and tenant between an operator of a community residence and a resident; defines community residence.

Details

Actions

  • Apr 25, 2012: referred to mental health
  • Apr 25, 2012: DELIVERED TO ASSEMBLY
  • Apr 25, 2012: PASSED SENATE
  • Mar 19, 2012: ADVANCED TO THIRD READING
  • Mar 15, 2012: 2ND REPORT CAL.
  • Mar 14, 2012: 1ST REPORT CAL.354
  • Jan 4, 2012: REFERRED TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES
  • Jan 4, 2012: returned to senate
  • Jan 4, 2012: died in assembly
  • Jun 16, 2011: referred to mental health
  • Jun 16, 2011: DELIVERED TO ASSEMBLY
  • Jun 16, 2011: PASSED SENATE
  • Jun 13, 2011: ADVANCED TO THIRD READING
  • Jun 7, 2011: 2ND REPORT CAL.
  • Jun 6, 2011: 1ST REPORT CAL.1002
  • Feb 8, 2011: REFERRED TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES

Votes

VOTE: COMMITTEE VOTE: - Mental Health and Developmental Disabilities - Jun 6, 2011
Ayes (9): McDonald, Ball, Bonacic, Hannon, Seward, Huntley, Duane, Peralta, Klein
Ayes W/R (1): Zeldin
VOTE: COMMITTEE VOTE: - Mental Health and Developmental Disabilities - Mar 14, 2012
Ayes (9): McDonald, Ball, Bonacic, Hannon, Seward, Zeldin, Huntley, Peralta, Klein
Ayes W/R (1): Duane

Memo

BILL NUMBER:S3078               REVISED 06/06/11

TITLE OF BILL: An act to amend the mental hygiene law and the real property actions and proceedings law, in relation to discharge of residents of a community residence

PURPOSE: This bill clarifies that the discharge of a resident from a community residence licensed or operated by the Office of Mental Health (OMH) or the Office of People with Developmental Disabilities (OPWDD) shall be governed by the regulations of those agencies, respectively, and shall not be considered to involve a relationship of landlord and tenant.

SUMMARY OF PROVISIONS: Section 1 of the bill would amend Mental Hygiene Law (MHL) § 41.33 to clarify that there is no landlord-tenant relationship between the operator of a community residence for the mentally disabled and a resident.

Section 2 of the bill would amend MHL § 41.41 to clarify that there is no landlord-tenant relationship between the operator of a community residence licensed or operated by OPWDD and a resident of such community residence.

Section 3 of the bill would amend MHL § 41.44 to clarify that there is no landlord-tenant relationship between the operator of a community residence licensed or operated by OMH and a resident of such community residence.

Section 4 of the bill would add a new Section 713-b to the Real Property Actions and Proceedings Law (RPAPL) clarifying that discharges of residents from community residences licensed or operated by OPWDD or OMH, or terminations of such residency agreements, shall be made in accordance with procedures established by OMH or OPWDD, as applicable, in their respective governing statutes and implementing regulations.

Section 5 of the bill would provide for an immediate effective date.

LEGISLATIVE HISTORY: 2009/10: S.3486 - Died in Mental Health and Developmental Disabilities. In 2008, this bill passed the Senate (S.4145) and was referred to the Assembly Mental Health Committee (A.8927).

STATEMENT OF SUPPORT: A "community residence," as such term is defined by MHL § 1.03(28), is any facility operated by or subject to licensure by OMH or OPWDD, which provides a supervised residence or residential respite services for mentally disabled persons. Such residences also provide a homelike environment and room, board and responsible supervision for the habilitation or rehabilitation of mentally disabled persons as part of an overall service delivery system. This proposal would clarify that the relationship of a resident of a community residence

and the program operator is a clinical treatment relationship, not that of landlord and tenant.

In OMH programs, community residences are considered clinical treatment programs. In OPWDD programs, community residences are part of the overall program of services and supports provided to the person with a disability which is aimed at integrating the person into society as much as possible. Admission to, and discharge from, these programs are grounded in clinical determinations. However, in recognition of the fact that these programs provide room and board for residents of the program, current regulations of OMH and OPWDD provide appropriate due process protections, including notice and an opportunity to be heard, in cases where non-hospitalized residents are discharged prior to being discharge-ready and wish to dispute their discharge. These due process protections do not require eviction proceedings through housing court, because the relationship between a resident and the program is a clinical treatment relationship, nor a landlord-tenant relationship.

Courts have long urged action by the Legislature to clarify the residential rights of persons with mental disabilities who have been admitted to a treatment facility such as a community residence (see Metalsky v. Mercy Haven, 156 Misc.2d 558 (Sup. Ct. Nassau Cty. 1993); Wims v. Abraham Residence III, 184 Misc2d 271 (N.Y.C. Civ. Ct. 2000)). In isolated cases such as these, courts have sought to apply statutory requirements appropriate to situations involving a landlord-tenant relationship to treatment facility discharges. However, the Court in Wims noted that there would be "far-reaching ramifications on residential rehabilitation programs throughout the State" that would follow from a treatment facility provider's obligation "to commence legal proceedings to recover possession of the premises upon a resident's termination from a program" (id. at 275).

The consequences of applying landlord-tenant requirements to community residence programs could be detrimental to persons with mental illness, mental retardation, or developmental disabilities. If disputed, discharges from community residences would not be made based upon appropriate clinical determinations, but rather by obtaining an order of eviction through the housing court. This could result in inappropriate clinical outcomes harmful to persons with mental disabilities. It also could be very costly to individual providers, and could have a negative impact on the continued availability of these programs for many persons with mental disabilities, particularly those who have higher service needs.

BUDGET IMPLICATIONS: There is no fiscal impact associated with this proposal.

EFFECTIVE DATE: This bill would take effect immediately upon enactment.


Text

STATE OF NEW YORK ________________________________________________________________________ 3078 2011-2012 Regular Sessions IN SENATE February 8, 2011 ___________
Introduced by Sen. HUNTLEY -- read twice and ordered printed, and when printed to be committed to the Committee on Mental Health and Develop- mental Disabilities AN ACT to amend the mental hygiene law and the real property actions and proceedings law, in relation to discharge of residents of a community residence THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 41.33 of the mental hygiene law, as amended by chapter 298 of the laws of 1984, is amended to read as follows: S 41.33 Community residences for the mentally disabled. The commissioner shall have the power to operate or cause to be oper- ated community residential facilities for the mentally disabled. NOTWITHSTANDING ANY CONTRARY PROVISION OF LAW, NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS CREATING A RELATIONSHIP OF LANDLORD AND TENANT BETWEEN AN OPERATOR OF A COMMUNITY RESIDENCE AND A RESIDENT THER- EOF. Within amounts available therefor and subject to regulations estab- lished by him OR HER and notwithstanding any other provisions of this article, he OR SHE may provide state aid to local governments and to voluntary agencies (i) in an amount not to exceed fifty percent for acquisition or construction of such community residences, and (ii) in an amount not to exceed fifty percent for the total operating costs of community residences except community residences for the mentally ill. Such state aid to voluntary agencies shall not be granted unless there has been prior approval of the proposed community residence by the local governmental unit. S 2. Section 41.41 of the mental hygiene law is amended by adding a new subdivision 3 to read as follows: 3. NOTWITHSTANDING ANY CONTRARY PROVISION OF LAW, NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS CREATING A RELATIONSHIP OF LAND-
LORD AND TENANT BETWEEN AN OPERATOR OF A COMMUNITY RESIDENCE AND A RESI- DENT THEREOF. S 3. Section 41.44 of the mental hygiene law is amended by adding a new subdivision (h) to read as follows: (H) NOTWITHSTANDING ANY CONTRARY PROVISION OF LAW, NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS CREATING A RELATIONSHIP OF LAND- LORD AND TENANT BETWEEN AN OPERATOR OF A COMMUNITY RESIDENCE AND A RESI- DENT THEREOF. S 4. The real property actions and proceedings law is amended by adding a new section 713-b to read as follows: S 713-B. SPECIAL REQUIREMENTS FOR DISCHARGE OF RESIDENTS FROM COMMU- NITY RESIDENCES OR TERMINATION OF RESIDENCY AGREEMENTS. 1. FOR PURPOSES OF THIS SECTION, A "COMMUNITY RESIDENCE" SHALL MEAN A COMMUNITY RESI- DENCE AS DEFINED IN SUBDIVISION TWENTY-EIGHT OF SECTION 1.03 OF THE MENTAL HYGIENE LAW. 2. NOTWITHSTANDING ANY CONTRARY PROVISIONS OF LAW, NOTHING CONTAINED IN THIS ARTICLE SHALL BE CONSTRUED AS CREATING A RELATIONSHIP OF LAND- LORD AND TENANT BETWEEN AN OPERATOR OF A COMMUNITY RESIDENCE AND A RESI- DENT THEREOF, AND DISCHARGE OF A RESIDENT FROM A COMMUNITY RESIDENCE OR TERMINATION OF A RESIDENCY AGREEMENT SHALL BE IN ACCORDANCE WITH THE LAWS, REGULATIONS AND PROCEDURES OF THE OFFICE OF MENTAL HEALTH OR THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, AS APPLICABLE. S 5. This act shall take effect immediately.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Discuss!

blog comments powered by Disqus