Relates to transitional care.
Ayes (59): Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Farley, Felder, Flanagan, Gallivan, Gianaris, Gipson, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, O'Mara, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousins, Tkaczyk, Valesky, Young, Zeldin
Excused (2): Espaillat, Golden
TITLE OF BILL: An act to amend the mental hygiene law, in relation to transitional care
PURPOSE OR GENERAL IDEA OF BILL:
This bill provides the parent(s) or guardians of an adult with developmental disabilities due process protections, including the right to an impartial hearing to challenge the determination regarding the appropriate setting for that individual. Under current law, due process protections are afforded to the parents of children with developmental disabilities who need residential care while they are in school. However, those protections are severely curtailed for those individuals who completed the school year in which they reach age twenty-one before July 1, 1996, and eliminated completely for those who "aged out" after July 1, 1996. This bill would help to ensure appropriate placement of people with developmental disabilities by affording them with due process rights after they turn 21.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1: Amends section 13.37-a of the mental hygiene law by redefining transitional care such that all those who are disabled and in need of residential care are treated equally, regardless of whether they "aged out" prior to July 1, 1996 or after.
Section 2: Amends section 13.38-a of the mental hygiene law to apply to all persons who are at the age or time to first qualify for transitional care.
Section 3: Amends section 13.38-e of the mental hygiene law to provide that upon the determination that a person who is receiving transitional care can be appropriately cared for in an available adult care facility approved by the office, the office shall notify the person, the person's guardian, by certified mail, return receipt requested. The person or the person's guardian or a qualified person may then make a due process administrative appeal within 30 days of the date of notification. Then an administrative appeal, consistent with the State Administrative Procedure Act, will review the case and make a determination as to the appropriateness of the proposed placement. The decision is subject to judicial review under article 78 of the CPLR.
Section 4: Sets effective date (immediately).
The Individuals with Disabilities Education Act (IDEA) gives the parent(s) of a disabled child the right to a due process hearing to challenge a determination regarding the most appropriate setting for a disabled child. While New York State provides protections for disabled
children and their parents while they are in school. Similarly, OPWDD regulations provide due process protections for all OPWDD clients.
Developmentally disabled persons who reach the age of twenty-one and remain continuously disabled and continuously in need of residential care are afforded minimal or no due process protections. Pursuant to section 13.38 of the mental hygiene law, those who reach age twenty-one on or before June 30, 1996 may object to a change in placement proposed by the office, by appealing to the commissioner of the office. Effectively, parents are forced to appeal to the very same office that originally proposed the transfer. Moreover, persons with developmental disabilities who reach age twenty-one after June 30, 1996 are provided no due process rights whatsoever. New York State eliminated the right to appeal entirely based on the belief that there would be adequate availability of appropriate in-state placements and services for such persons. Now, nineteen years later, the office remains unable to place some persons with developmental disabilities into appropriate in-state adult placements.
Notwithstanding the present unavailability of appropriate in-state placements, current law fails to acknowledge the devastating effects that an inappropriate placement can have on a person with developmental disabilities, including abuse, self-injury, improper medication or death. Additionally, there is absolutely no recognition of the potential harm arising directly from a transfer which necessitates a disruption to the disabled person's current treatment needs, home life and familiar surroundings.
This bill would establish a mechanism for review of the proposed change of placement of person with developmental disabilities, taking into account the overall appropriateness of the proposed placement and the potential harm that could result from the proposed transfer. There is no policy rationale for denying these disabled adults the same due process rights as are provided to all other OPWDD clients. In fact, the disparate treatment of these disabled transitional care adults is probably actionable under our equal protection laws, and exposes New York to potential liability.
This bill will restore confidence and ensure that New York State is truly committed to the appropriate placement of our developmentally disabled population by affording them due process rights regarding transfers to different residential facilities.
PRIOR LEGISLATIVE HISTORY:
This act shall take effect immediately after it shall have become a law.
STATE OF NEW YORK ________________________________________________________________________ 7374 IN SENATE May 14, 2014 ___________Introduced by Sen. BONACIC -- 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, in relation to transitional care THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision (a) of section 13.37-a of the mental hygiene law, as added by chapter 405 of the laws of 1998, is amended to read as follows: (a) For purposes of this section, "transitional care" shall mean care and maintenance of persons: 1. who were placed in foster care by a social services district pursu- ant to article six of the social services law and who have become twen- ty-one years of age, or who were placed in a residential educational placement by a school district pursuant to article eighty-nine of the education law and who are no longer eligible for free educational services because they have completed the school year in which they became twenty-one; 2. who were disabled and in need of residential care prior to becoming age twenty-one or prior to becoming ineligible for free education services and who have since remained continuously disabled and contin- uously in need of residential care; 3.
[who became twenty-one or became ineligible for free educational services prior to July first, nineteen hundred ninety-six; 4.]with respect to whom the office has approved a plan of continued out of home care for the person but has not yet identified a currently available appropriate placement; AND [5.]4. whose residential needs can be met by the facility in which the persons resided prior to becoming age twenty-one or becoming ineli- gible for free educational services [; and]. [6. who on July first, nineteen hundred ninety-eight are in receipt of transitional care, or who have continuously remained in the foster care or residential education placement where they had received transitional care.]S 2. Subdivision (a) of section 13.38 of the mental hygiene law, as amended by chapter 405 of the laws of 1998, is amended to read as follows:EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14850-02-4 S. 7374 2
(a) The office shall, in consultation with the department of social services, the education department, the office of mental health, and the council on children and families, develop a plan and implement procedures to help assure that all persons who are at the age or time to first qualify for transitional care, as described in section 13.37-a of this article, and for whom the office has accepted planning respon- sibilities, receive assistance in locating an appropriate and available residential placement or plan of services, within the state and within the system of care subject to the jurisdiction of the office, prior to the age or time at which they would otherwise have qualified for transi- tional care
[, if such individuals had become twenty-one or become ineli- gible for educational services prior to July first, nineteen hundred ninety-six]. For purposes of this section, the age or time at which a person would qualify for transitional care is twenty-one for persons in foster care, and the end of the school year in which they become twenty-one for persons in residential schools. S 3. Subdivision (e) of section 13.38 of the mental hygiene law, as amended by chapter 405 of the laws of 1998, is amended to read as follows: (e) Upon making a determination that a person who is receiving transi- tional care can be appropriately cared for in an available adult care facility or service licensed, certified or approved by the office, and whose removal from a child care facility is not required on an expedited basis, the office shall notify BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, the person and the person's guardian, if one has been appointed, [or]AND, WHEN APPLICABLE, another individual who has been involved in the care of the person and who [can]MAY represent the person's interests, of the DESCRIPTION OF THE PROPOSED NEW PLACEMENT, THE availability of an administrative appeal to review the determi- nation INCLUDING A DESCRIPTION OF THE APPEAL PROCEDURE, CONSISTENT WITH THE NEW YORK STATE ADMINISTRATIVE PROCEDURE ACT, CONTACT INFORMATION AS IT RELATES TO MAKING AN OBJECTION, and of the need to request such an appeal IN WRITING within thirty days of the notice. SUCH NOTIFICATION SHALL BE PROVIDED TO THE PERSON AND THE PERSON'S GUARDIAN, IF ONE HAS BEEN APPOINTED AND, WHEN APPLICABLE, ANOTHER INDIVIDUAL WHO HAS BEEN INVOLVED IN THE CARE OF THE PERSON AND WHO MAY REPRESENT THE PERSON'S INTERESTS NO LATER THAN FORTY-FIVE DAYS PRIOR TO THE DATE OF THE OFFICE'S INTENDED CHANGE IN PLACEMENT. If the person, guardian or other individual requests an administrative appeal within the time required, the office shall WITHIN FIVE DAYS OF RECEIPT OF THE WRITTEN REQUEST FOR APPEAL, schedule a hearing [and the]PROVIDING NO LESS THAN TEN DAYS NOTICE TO THE OBJECTING PARTY. THE commissioner or his or her designee shall issue a WRITTEN determination TO THE INVOLVED INDIVIDUALS within thirty days of the adjournment of the hearing, on whether the adult placement identified by the office is appropriate to the needs of the person and is available or will become available on an identified date certain. THE WRITTEN DETERMINATION SHALL BE THE FINAL ADMINISTRATIVE REMEDY AVAILABLE AND SHALL BE SUBJECT TO REVIEW IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES. If the person, guardian or other individual does not request a hearing within the time required, or if the hearing results in a determination that the proposed adult services or placement is appropriate to the needs of the person and is available or will be available on an identi- fied date certain, the office shall discontinue transitional care fund- ing for the person as of a date certain. S 4. This act shall take effect immediately.