Bill Text: NY S03893 | 2015-2016 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Enacts the "employment first choice act" to ensure that an individual with developmental disabilities in a nonintegrated setting shall have the right to remain in such a setting under certain circumstances.

Spectrum: Slight Partisan Bill (Republican 12-4)

Status: (Introduced - Dead) 2016-01-20 - RECOMMIT, ENACTING CLAUSE STRICKEN [S03893 Detail]

Download: New_York-2015-S03893-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         3893
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                   February 20, 2015
                                      ___________
       Introduced by Sen. YOUNG -- (at request of the Legislative Commission on
         Rural  Resources)  -- read twice and ordered printed, and when printed
         to be committed to the Committee on Mental  Health  and  Developmental
         Disabilities
       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:
    1    Section  1.  Short  title. This act shall be known and may be cited as
    2  the "employment first choice act".
    3    S 2. Legislative intent. The legislature  hereby  supports  increasing
    4  access  to  integrated employment settings for individuals with develop-
    5  mental disabilities. The legislature additionally finds,  however,  that
    6  the  policy  to  increase  integrated employment opportunities shall not
    7  preclude an individual's right to choose either an integrated or  nonin-
    8  tegrated  setting  in accordance with such individual's personal wishes.
    9  Furthermore, the legislature supports an individual's wish to remain  in
   10  a  nonintegrated  setting  in order to, among other personal priorities,
   11  retain friendships, continue their participation in their  community  as
   12  they so choose, and, in some instances, maintain their ability to earn a
   13  paycheck.
   14    The  legislature, therefore, finds that individuals with developmental
   15  disabilities, who currently  participate  in  a  nonintegrated  setting,
   16  should be allowed to choose to remain in such a setting. To require such
   17  individuals  to transition out of this chosen environment undermines the
   18  guiding Supreme Court decision in Olmstead v. L.C., which held that  the
   19  Americans  with  Disabilities Act of 1990 requires placement of individ-
   20  uals with developmental disabilities in integrated settings rather  than
   21  nonintegrated  settings, but only when such a transfer is not opposed by
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09273-02-5
       S. 3893                             2
    1  the affected individual. The legislature, therefore, declares  this  act
    2  to  be  a  priority  of  the  state's actions affecting individuals with
    3  developmental disabilities.
    4    S  3.  The mental hygiene law is amended by adding a new section 16.02
    5  to read as follows:
    6  S 16.02 INDIVIDUAL'S RIGHT OF CHOICE.
    7    ANY INDIVIDUAL WITH A DEVELOPMENTAL DISABILITY WHO IS PARTICIPATING IN
    8  A NONINTEGRATED SETTING INCLUDING, BUT NOT LIMITED TO, A SHELTERED WORK-
    9  SHOP, AND WHO CHOOSES TO REMAIN IN  A  NONINTEGRATED  SETTING  MAY  SEEK
   10  ACCOMMODATION  FROM  THE  COMMISSIONER TO ALLOW SUCH PLACEMENT, PROVIDED
   11  THAT PENDING SUCH REQUEST THE INDIVIDUAL MAY REMAIN IN THE NONINTEGRATED
   12  SETTING.
   13    (A) ACCOMMODATIONS SHALL BE GRANTED AT THE DISCRETION OF  THE  COMMIS-
   14  SIONER,  WHO MAY ALSO REQUIRE THAT THE INDIVIDUAL HAS COMPLETED AT LEAST
   15  ONE OF THE FOLLOWING:
   16    (1) PARTICIPATION IN AT LEAST ONE VOCATIONAL ASSESSMENT IN  ACCORDANCE
   17  WITH REGULATIONS PROMULGATED BY THE COMMISSIONER. THE PRIMARY PURPOSE OF
   18  A VOCATIONAL ASSESSMENT SHALL BE TO DETERMINE AN INDIVIDUAL'S INTERESTS,
   19  STRENGTHS  AND  ABILITIES, IN ORDER TO IDENTIFY A SUITABLE MATCH BETWEEN
   20  THE INDIVIDUAL AND A COMPETITIVE INTEGRATED EMPLOYMENT SETTING;
   21    (2) COMPLETION OF ONE TRIAL  INTEGRATED  WORK  EXPERIENCE,  WHICH  CAN
   22  INCLUDE  ANY WORK EXPERIENCE WITH OR WITHOUT PAY IN WHICH THE INDIVIDUAL
   23  WORKS ALONGSIDE NON-DISABLED COWORKERS, CUSTOMERS  OR  PEERS,  WITH  THE
   24  APPROPRIATE  SERVICES  AND  SUPPORTS  FOR A SUFFICIENT PERIOD OF TIME TO
   25  ESTABLISH WHETHER AN INDIVIDUAL'S INTERESTS, SKILLS  AND  ABILITIES  ARE
   26  WELL-SUITED FOR THE PARTICULAR JOB. THE TRIAL INTEGRATED WORK EXPERIENCE
   27  SHALL  BE  SELECTED THROUGH A PERSON-CENTERED PLANNING PROCESS AND SHALL
   28  BE INDIVIDUALLY TAILORED TO EACH PERSON. ALTERNATIVELY, THE COMMISSIONER
   29  MAY CONSIDER THE INDIVIDUAL'S DEMONSTRATION OF AN INABILITY  TO  PARTIC-
   30  IPATE  IN  AN INTEGRATED WORK SETTING DUE TO A DOCUMENTED MEDICAL CONDI-
   31  TION THAT POSES AN IMMEDIATE AND  SERIOUS  THREAT  TO  THE  INDIVIDUAL'S
   32  HEALTH  OR  SAFETY,  OR  THE HEALTH OR SAFETY OF OTHERS IN AN INTEGRATED
   33  WORK SETTING;
   34    (3) RECEIPT OF OUTREACH, EDUCATION AND SUPPORT SERVICES IN  ACCORDANCE
   35  WITH  REGULATIONS  PROMULGATED  BY THE COMMISSIONER. OUTREACH, EDUCATION
   36  AND SUPPORT SERVICES ARE SERVICES DESIGNED TO EXPLAIN  THE  BENEFITS  OF
   37  SUPPORTED  EMPLOYMENT,  AS  DEFINED IN SUBDIVISION ELEVEN OF SECTION ONE
   38  THOUSAND TWO OF THE EDUCATION LAW, THAT ADDRESS CONCERNS OF FAMILIES AND
   39  PERCEIVED OBSTACLES TO PARTICIPATION,  AND  ARE  DESIGNED  TO  ENCOURAGE
   40  INDIVIDUALS  IN  DAY  ACTIVITY  SERVICE PROGRAMS, INCLUDING IN SHELTERED
   41  WORKSHOPS AND FACILITY-BASED DAY PROGRAMS, AND THEIR  FAMILIES  TO  SEEK
   42  SUPPORTED  EMPLOYMENT  SERVICES,  AS DEFINED UNDER SUBDIVISION TWELVE OF
   43  SECTION ONE THOUSAND TWO OF THE EDUCATION LAW; OR
   44    (4) INVOLVEMENT IN A BENEFITS COUNSELING  CONSULTATION  IN  ACCORDANCE
   45  WITH  REGULATIONS  PROMULGATED BY THE COMMISSIONER. A BENEFIT COUNSELING
   46  CONSULTATION SHALL PROVIDE INFORMATION TO THE INDIVIDUAL AND HIS OR  HER
   47  FAMILY OR GUARDIAN ABOUT THE IMPACT OF EARNED INCOME ON THE INDIVIDUAL'S
   48  PUBLIC BENEFITS.
   49    (B)  THE OFFICE SHALL ENSURE THAT INDIVIDUALS WHO ARE GRANTED ACCOMMO-
   50  DATION TO PARTICIPATE IN  A  NONINTEGRATED  SETTING  SHALL  CONTINUE  TO
   51  RECEIVE  SERVICES  AND ANY ADDITIONAL SERVICES THE OFFICE DETERMINES ARE
   52  NECESSARY TO ENABLE THE INDIVIDUAL'S  MEANINGFUL  PARTICIPATION  IN  THE
   53  CHOSEN SETTING.
   54    (C) THE PROCEDURES FOR OBTAINING ACCOMMODATION TO REMAIN IN A NONINTE-
   55  GRATED  SETTING  SHALL  NOT SUPERSEDE NOR BAR THE INDIVIDUAL'S CHOICE TO
   56  REMAIN IN A NONINTEGRATED SETTING.
       S. 3893                             3
    1    (D) THE ACCOMMODATION TO REMAIN IN A NONINTEGRATED SETTING  SHALL  NOT
    2  DIMINISH  THE  INDIVIDUAL'S  ELIGIBILITY  FOR  RECEIPT OF SERVICES UNDER
    3  TITLE ELEVEN OF ARTICLE FIVE OF THE SOCIAL SERVICES LAW, AND SUCH  INDI-
    4  VIDUAL'S  ELIGIBILITY  TO  RECEIVE  SUCH SERVICES SHALL BE SUBSTANTIALLY
    5  SIMILAR  TO  BENEFITS  THAT  WOULD HAVE BEEN RECEIVED HAD THE INDIVIDUAL
    6  CHOSEN TO PARTICIPATE IN AN INTEGRATED SETTING.
    7    (E) THE COMMISSIONER IS AUTHORIZED TO ISSUE, AMEND OR REPEAL ANY REGU-
    8  LATIONS AS HE OR SHE SHALL DEEM NECESSARY TO IMPLEMENT THE PROVISIONS OF
    9  THIS SECTION.
   10    S 4. The commissioner of developmental disabilities  shall  amend  and
   11  resubmit  to  the Federal Centers for Medicare and Medicaid Services the
   12  final New York plan to increase competitive employment opportunities for
   13  people with developmental disabilities, as approved on May 1,  2014,  in
   14  order to secure the continued federal financial participation for prevo-
   15  cational  services and any other necessary federal funds for those indi-
   16  viduals choosing a sheltered workshop setting pursuant to section  16.02
   17  of  the  mental  hygiene  law.  The  plan,  as amended according to this
   18  section, shall  stipulate  that  facility-based  prevocational  services
   19  shall  continue  to  be eligible for federal funding, as allowed by such
   20  centers' stated policy that its regulations do not prohibit  individuals
   21  from  receiving prevocational services in a facility-based setting, such
   22  as a sheltered workshop, as referenced in its Informational Bulletin  on
   23  Employment  Services  dated September 16, 2011, and its related document
   24  titled "HCBS Final Regulations 42 C.F.R. Part 441: Questions and Answers
   25  Regarding  Home  and  Community-Based  Settings;   Public   Notice   and
   26  Comments".
   27    S 5. This act shall take effect immediately.