S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    549
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              January 9, 2017
                                ___________
 
 Introduced  by  M.  of  A. GUNTHER, LUPARDO, BRINDISI, MAGEE, SKARTADOS,
   GALEF, STECK,  SANTABARBARA,  TITONE,  DiPIETRO,  PALMESANO,  GOODELL,
   CROUCH, RAIA, PALUMBO, RA, GARBARINO -- Multi-Sponsored by -- M. of A.
   HOOPER,  McDONOUGH,  MURRAY,  THIELE  -- read once and referred to the
   Committee 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".
   §  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

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

                                                            LBD01548-02-7

 A. 549                              2
 
 nonintegrated settings, but only when such a transfer is not opposed  by
 the  affected  individual. The legislature, therefore, declares this act
 to be a priority of  the  state's  actions  affecting  individuals  with
 developmental disabilities.
   §  3.  The mental hygiene law is amended by adding a new section 16.02
 to read as follows:
 § 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.

 A. 549                              3
 
   (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.
   (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.
   § 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".
   § 5. This act shall take effect immediately.