S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5959

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                              March 9, 2015
                               ___________

Introduced  by M. of A. GUNTHER -- read once and referred to the Commit-
  tee on Mental Health

AN ACT to amend the mental hygiene law, in  relation  to  directing  the
  commissioner  of  developmental  disabilities to establish a procedure
  through which persons with developmental disabilities  may  choose  to
  remain in a nonintegrated setting

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Short title. This act shall be known and may  be  cited  as
the "employment first choice act".
  S  2.  Legislative  intent. The legislature hereby supports increasing
access to integrated employment settings for individuals  with  develop-
mental  disabilities.  The legislature additionally finds, however, that
the policy to increase integrated  employment  opportunities  shall  not
preclude  an individual's right to choose either an integrated or nonin-
tegrated setting in accordance with such individual's  personal  wishes.
Furthermore,  the legislature supports an individual's wish to remain in
a nonintegrated setting in order to, among  other  personal  priorities,
retain  friendships,  continue their participation in their community as
they so choose, and, in some instances, maintain their ability to earn a
paycheck.
  The legislature, therefore, finds that individuals with  developmental
disabilities,  who  currently  participate  in  a nonintegrated setting,
should be allowed to choose to remain in such a setting. To require such
individuals to transition out of this chosen environment undermines  the
guiding  Supreme Court decision in Olmstead v. L.C., which held that the
Americans with Disabilities Act of 1990 requires placement  of  individ-
uals  with developmental disabilities in integrated settings rather than
nonintegrated settings, but only when such a transfer is not opposed  by
the  affected  individual. The legislature, therefore, declares this act

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09273-03-5

              

A. 5959                             2

to be a priority of  the  state's  actions  affecting  individuals  with
developmental disabilities.
  S  3.  The mental hygiene law is amended by adding a new section 16.02
to read as follows:
S 16.02 INDIVIDUAL'S RIGHT OF CHOICE.
  ANY INDIVIDUAL WITH A DEVELOPMENTAL DISABILITY WHO IS PARTICIPATING IN
A NONINTEGRATED SETTING INCLUDING, BUT NOT LIMITED TO, A SHELTERED WORK-
SHOP, AND WHO CHOOSES TO REMAIN IN  A  NONINTEGRATED  SETTING  MAY  SEEK
ACCOMMODATION  FROM  THE  COMMISSIONER TO ALLOW SUCH PLACEMENT, PROVIDED
THAT PENDING SUCH REQUEST THE INDIVIDUAL MAY REMAIN IN THE NONINTEGRATED
SETTING.
  (A) ACCOMMODATIONS SHALL BE GRANTED AT THE DISCRETION OF  THE  COMMIS-
SIONER,  WHO MAY ALSO REQUIRE THAT THE INDIVIDUAL HAS COMPLETED AT LEAST
ONE OF THE FOLLOWING:
  (1) PARTICIPATION IN AT LEAST ONE  VOCATIONAL  ASSESSMENT  EVERY  FIVE
YEARS  IN  ACCORDANCE  WITH REGULATIONS PROMULGATED BY THE COMMISSIONER.
THE PRIMARY PURPOSE OF A VOCATIONAL ASSESSMENT SHALL BE TO DETERMINE  AN
INDIVIDUAL'S  INTERESTS, STRENGTHS AND ABILITIES, IN ORDER TO IDENTIFY A
SUITABLE MATCH BETWEEN  THE  INDIVIDUAL  AND  A  COMPETITIVE  INTEGRATED
EMPLOYMENT SETTING;
  (2)  COMPLETION  OF  ONE  TRIAL  INTEGRATED WORK EXPERIENCE EVERY FIVE
YEARS, WHICH CAN INCLUDE ANY WORK EXPERIENCE  WITH  OR  WITHOUT  PAY  IN
WHICH  THE  INDIVIDUAL WORKS ALONGSIDE NON-DISABLED COWORKERS, CUSTOMERS
OR PEERS, WITH THE APPROPRIATE SERVICES AND SUPPORTS  FOR  A  SUFFICIENT
PERIOD  OF  TIME  TO ESTABLISH WHETHER AN INDIVIDUAL'S INTERESTS, SKILLS
AND ABILITIES ARE WELL-SUITED FOR THE PARTICULAR JOB.  THE  TRIAL  INTE-
GRATED WORK EXPERIENCE SHALL BE SELECTED THROUGH A PERSON-CENTERED PLAN-
NING PROCESS AND SHALL BE INDIVIDUALLY TAILORED TO EACH PERSON. ALTERNA-
TIVELY,  THE COMMISSIONER MAY CONSIDER THE INDIVIDUAL'S DEMONSTRATION OF
AN INABILITY TO PARTICIPATE IN AN INTEGRATED WORK SETTING DUE TO A DOCU-
MENTED MEDICAL CONDITION THAT POSES AN IMMEDIATE AND SERIOUS  THREAT  TO
THE  INDIVIDUAL'S HEALTH OR SAFETY, OR THE HEALTH OR SAFETY OF OTHERS IN
AN INTEGRATED WORK SETTING;
  (3) RECEIPT OF OUTREACH, EDUCATION AND SUPPORT SERVICES IN  ACCORDANCE
WITH  REGULATIONS  PROMULGATED  BY THE COMMISSIONER. OUTREACH, EDUCATION
AND SUPPORT SERVICES ARE SERVICES DESIGNED TO EXPLAIN  THE  BENEFITS  OF
SUPPORTED  EMPLOYMENT,  AS  DEFINED IN SUBDIVISION ELEVEN OF SECTION ONE
THOUSAND TWO OF THE EDUCATION LAW, THAT ADDRESS CONCERNS OF FAMILIES AND
PERCEIVED OBSTACLES TO PARTICIPATION,  AND  ARE  DESIGNED  TO  ENCOURAGE
INDIVIDUALS  IN  DAY  ACTIVITY  SERVICE PROGRAMS, INCLUDING IN SHELTERED
WORKSHOPS AND FACILITY-BASED DAY PROGRAMS, AND THEIR  FAMILIES  TO  SEEK
SUPPORTED  EMPLOYMENT  SERVICES,  AS DEFINED UNDER SUBDIVISION TWELVE OF
SECTION ONE THOUSAND TWO OF THE EDUCATION LAW; OR
  (4) INVOLVEMENT IN A BENEFITS COUNSELING  CONSULTATION  IN  ACCORDANCE
WITH  REGULATIONS  PROMULGATED BY THE COMMISSIONER. A BENEFIT COUNSELING
CONSULTATION SHALL PROVIDE INFORMATION TO THE INDIVIDUAL AND HIS OR  HER
FAMILY OR GUARDIAN ABOUT THE IMPACT OF EARNED INCOME ON THE INDIVIDUAL'S
PUBLIC BENEFITS.
  (B)  THE OFFICE SHALL ENSURE THAT INDIVIDUALS WHO ARE GRANTED ACCOMMO-
DATION TO PARTICIPATE IN  A  NONINTEGRATED  SETTING  SHALL  CONTINUE  TO
RECEIVE  SERVICES  AND ANY ADDITIONAL SERVICES THE OFFICE DETERMINES ARE
NECESSARY TO ENABLE THE INDIVIDUAL'S  MEANINGFUL  PARTICIPATION  IN  THE
CHOSEN SETTING.
  (C) THE PROCEDURES FOR OBTAINING ACCOMMODATION TO REMAIN IN A NONINTE-
GRATED  SETTING  SHALL  NOT SUPERSEDE NOR BAR THE INDIVIDUAL'S CHOICE TO
REMAIN IN A NONINTEGRATED SETTING.

A. 5959                             3

  (D) THE ACCOMMODATION TO REMAIN IN A NONINTEGRATED SETTING  SHALL  NOT
DIMINISH  THE  INDIVIDUAL'S  ELIGIBILITY  FOR  RECEIPT OF SERVICES UNDER
TITLE ELEVEN OF ARTICLE FIVE OF THE SOCIAL SERVICES LAW, AND SUCH  INDI-
VIDUAL'S  ELIGIBILITY  TO  RECEIVE  SUCH SERVICES SHALL BE SUBSTANTIALLY
SIMILAR  TO  BENEFITS  THAT  WOULD HAVE BEEN RECEIVED HAD THE INDIVIDUAL
CHOSEN TO PARTICIPATE IN AN INTEGRATED SETTING.
  (E) THE COMMISSIONER IS AUTHORIZED TO ISSUE, AMEND OR REPEAL ANY REGU-
LATIONS AS HE OR SHE SHALL DEEM NECESSARY TO IMPLEMENT THE PROVISIONS OF
THIS SECTION.
  S 4. The commissioner of developmental disabilities  shall  amend  and
resubmit  to  the Federal Centers for Medicare and Medicaid Services the
final New York plan to increase competitive employment opportunities for
people with developmental disabilities, as approved on May 1,  2014,  in
order to secure the continued federal financial participation for prevo-
cational  services and any other necessary federal funds for those indi-
viduals choosing a sheltered workshop setting pursuant to section  16.02
of  the  mental  hygiene  law.  The  plan,  as amended according to this
section, shall  stipulate  that  facility-based  prevocational  services
shall  continue  to  be eligible for federal funding, as allowed by such
centers' stated policy that its regulations do not prohibit  individuals
from  receiving prevocational services in a facility-based setting, such
as a sheltered workshop, as referenced in its Informational Bulletin  on
Employment  Services  dated September 16, 2011, and its related document
titled "HCBS Final Regulations 42 C.F.R. Part 441: Questions and Answers
Regarding  Home  and  Community-Based  Settings;   Public   Notice   and
Comments".
  S 5. This act shall take effect immediately.