Stirpe, Hunter, Clark, Magnarelli, Darling, Burdick, Jensen, Byrnes, McMahon, Simon, McDonald,
Gunther, Alvarez, Paulin, Shimsky, Lunsford, Woerner, DeStefano, Epstein, Santabarbara, Levenberg,
De Los Santos, Zinerman, Brabenec, Giglio JA
 
MLTSPNSR
 
Add §16.38, Ment Hyg L; amd §352-g, Gen Bus L
 
Relates to the creation of an innovative housing initiative for persons with a developmental disability who wish and are able to safely reside in such a setting; directs the division of housing and community renewal to establish guidelines for the dissemination of disclosure materials for the offer and sale of interests in residential environments formed under the innovative housing initiative; creates an exemption from certain filing requirements for residential environments that are formed as cooperative interests in realty for persons receiving services under the innovative housing initiative.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A6575A
SPONSOR: Seawright
 
TITLE OF BILL:
An act to amend the mental hygiene law, in relation to the creation of
an innovative housing initiative for persons with a developmental disa-
bility who wish and are able to safely reside in such a setting; to
direct the division of housing and community renewal to establish guide-
lines for the dissemination of disclosure materials for the offer and
sale of interests in residential environments formed under the innova-
tive housing initiative; and to amend the general business law, in
relation to creating an exemption from certain filing requirements for
residential environments that are formed as cooperative interests in
realty for persons receiving services under the innovative housing
initiative
 
PURPOSE OR GENERAL IDEA:
This legislation would provide innovative housing opportunities for
persons with a developmental disability and enable them to reside
together and live more independently.
 
SUMMARY OF PROVISIONS:
Section 1 of the bill is the legislative purpose and findings.
Section 2 amends the mental hygiene law by adding a new section 16.38
titled Innovative Housing Initiative to provide that:
(a) The office for people with developmental disabilities shall enable
persons with a developmental disability to live independently, with
support services, including staffing support, shared staffing support
and opportunities for social engagement and recreation, in a residential
environment.
(b) Such residential environment may be comprised of a single housing
unit or multiple units of housing, in one or more buildings, including
leased . residential housing, housing that qualifies as a cooperative
interest in-realty and condominium units.
(c) The selection of the residential environment, the persons with whom
the individual lives and the determination that a person with a develop-
mental disability may independently live in such residential environ-
ment, with support services, shall be made solely by such person with a
disability and their qualified representative.
(d)recognition of the requirement that the individual's experience shall
determine whether a residential environment is the most integrated and
appropriate for the needs of the person with a developmental disability,
in determining eligibility for any housing program, support services or
other benefits, the office shall: ' 1. honor the right of the person
with a developmental disability to choose the residential environment in
which such individual may live and with whom;
2. maximize the types of residential settings in which a person with a
developmental disability may live while being eligible for funds through
a home and community based waiver, to the full extent permitted by
federal law; and
3. permit a number of persons with developmental disabilities to live in
a residential environment when viewed as a whole up to the.full extent
permitted by federal law.
(e) This section shall not limit or otherwise affect requirements apply-
ing to an integrated supporting housing program administered by the
office; or projects developed as part of an empire state supportive
housing initiative.
(f) The office and the department of health shall determine whether an
amendment to the state plan or a waiver is required to maximize federal
financial participation for the program. If the department determines it
is required or desirable, the department of health shall submit such
amendment or apply for such waiver within twelve months from the date of
such determination.
(g) This section shall not be construed to permit the operation without
an operating certificate of any provider of service requiring an operat-
ing certificate under section 16.03 of this article.
Section 3 provides that the division of housing and community renewal
shall establish guidelines for the dissemination of disclosure materials
for the offer and sale of interests in residential environments formed
under the innovative housing initiative established by section 16.38 of
the mental hygiene law, to ensure material information is disclosed to a
prospective Purchaser.
Section 4 amends general business law section 352-g, to provide that
residential environments that are formed as housing development fund
corporations and pursuant to section four hundred two of the business
corporation law where such residential environment is formed for persons
receiving services under the innovative housing initiative established
by section 16.38 of the mental hygiene law, shall be exempt from any
filing requirements of section three hundred fifty-two-e of the general
business law for the investment in any residential environments and the
conversion of any building, group of buildings or development which are
converted to a housing development fund corporation.
Section 5 is the effective date.
 
JUSTIFICATION:
In 1999, in the seminal case Olmstead v. L.C. (hereinafter "Olmstead"),
the United States Supreme Court held that governments must provide
community-based services to persons with disabilities when (i) such
services are appropriate; (ii) the affected persons do not oppose commu-
nity-based treatment; and (iii) community-based services can be reason-
ably accommodated, taking into account the resources available to the
public entity and the needs of others who are receiving disability
services from the entity.
As a result of Olmstead, as well as subsequent actions brought by fami-
lies and advocates, state and local governments are required to ensure
that persons with disabilities, including developmental disabilities,
can live in the most integrated setting appropriate for their needs.
Today, many persons with developmental disabilities live with a parent
or parents, a family member, or other similar direct support personnel.
However, many such persons wish to live more independently, and would do
so if an option existed that included certain supports. For such
persons, living with a parent or other direct support personnel is not
the most integrated setting that is appropriate for their needs.
Further, although family caregiving is appropriate in many instances, a
system that relies primarily on parents and similar direct support
personnel to provide a non-institutional living setting is not sustaina-
ble. The parent or direct support personnel eventually becomes unable to
continue supporting the person who has a developmental disability, due
to the direct support personnel's infirmity, death, or other concerns.
When that happens, the person with a developmental disability may need
to move to a certified housing setting, commonly referred to as a group
home, which is a more restrictive environment than an innovative housing
program could provide. Often, available group homes are located far from
the communities in which people have lived their entire lives. Although
group homes may be appropriate for some persons with developmental disa-
bilities, they are not appropriate for those persons with disabilities
who wish and are able to live more independently. Currently, group
homes, even for those who choose to live in that setting, do not number
nearly enough to meet the need.
A system that creates unnecessary pressure to place persons with devel-
opmental disabilities in group homes directly contravenes the spirit of
Olmstead. Perhaps more. importantly, it works a double trauma upon the
person with a developmental disability, who has no option but to move
from their long-time home while, at the same time, grieving the loss of
a parent or direct support personnel.
Accordingly, there is a need to create new and innovative housing initi-
atives that maximize independence for persons with developmental disa-
bilities. This legislation will do just that.
This legislation would provide more opportunities to provide independent
housing options to persons with developmental disabilities, where such
persons wish and are able with support services to take advantage of
such opportunities.
Indeed, in a recent letter, the Acting Deputy Administrator and Director
of the federal Centers for Medicate and Medicaid Services ("CMS") stated
that there is no cap or percentage used to determine whether housing for
people with developmental disabilities satisfies the federal home and
community-based setting rule, which is designed to ensure that Medicaid
funded housing programs comply with Olmstead principles. CMS clarified
that every state must assess each setting and "focus ... on the experi-
ence of the individual in the Setting."
Persons with developmental disabilities can in fact live in close prox-
imity in a safe, healthy and integrated residential environment, espe-
cially when that environment is chosen by the person and augmented with
supports that Maximize the pers6n's .independence and that are less
intensive than the services provided in an institutional setting.
Thus, to maximize the availability of innovative housing settings, this
legislation sets forth the criteria for the Office for People with
Developmental Disabilities ("OPWDD") to maximize the opportunity for
innovative housing initiatives that enable persons with developmental
disabilities to live more independently, with certain supports provided
through OPWDD, such as shared direct support personnel. In this way,
these housing initiatives will ensure that persons with developmental
disabilities are afforded settings that are the most integrated and
appropriate for their needs and honors their right to choose where they
may live and with whom.
The legislation also exempts residential environments that are formed as
housing development fund ccrporations from the filing requirements of
the Martin Act, and vests sole jurisdiction with the Division of Housing
and Community Renewal as the supervising agency of any residential envi-
ronment to determine disclosure requirements for investors and purchas-
ers of shares. This exemption will ensure that residential environments
that are formed under the private housing finance law are not impeded by
the strict filing requirements of the Martin Act given the roles of the
division of housing and community renewal as supervising agency of resi-
dential environments formed under the private housing finance law.
 
LEGISLATIVE HISTORY:
2022: A9492-C Passed Assembly; Same as S8521-C (Mannion) recommitted to
Finance
 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None
 
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
6575--A
2023-2024 Regular Sessions
IN ASSEMBLY
April 19, 2023
___________
Introduced by M. of A. SEAWRIGHT, STIRPE, HUNTER, CLARK, MAGNARELLI,
DARLING, BURDICK, JENSEN, BYRNES, McMAHON, SIMON, McDONALD -- read
once and referred to the Committee on People with Disabilities --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the mental hygiene law, in relation to the creation of
an innovative housing initiative for persons with a developmental
disability who wish and are able to safely reside in such a setting;
to direct the division of housing and community renewal to establish
guidelines for the dissemination of disclosure materials for the offer
and sale of interests in residential environments formed under the
innovative housing initiative; and to amend the general business law,
in relation to creating an exemption from certain filing requirements
for residential environments that are formed as cooperative interests
in realty for persons receiving services under the innovative housing
initiative
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative purpose and findings. The legislature hereby
2 finds and declares as follows:
3 (a) New York state is currently facing a severe housing crisis for
4 people with developmental disabilities. Staffing shortages for certified
5 housing, commonly referred to as group homes, has put additional pres-
6 sure on the state to provide alternative and innovative housing models,
7 especially for those persons who are able to live more independently and
8 wish to do so.
9 (b) Many persons with developmental disabilities live with a parent or
10 parents, a family member, or other similar direct support personnel.
11 However, many such persons wish to live more independently, and would do
12 so if an option existed that included certain appropriate supports.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05184-04-3
A. 6575--A 2
1 (c) Further, although family caregiving is appropriate in many
2 instances, parents and similar direct support personnel may eventually
3 become unable to continue supporting the person who has a developmental
4 disability, due to the direct support personnel's infirmity, death, or
5 other concerns.
6 (d) Accordingly, there is a need to create new and innovative housing
7 models that maximize independence for persons with developmental disa-
8 bilities. The state should provide more independent housing options to
9 persons with developmental disabilities, where such persons wish and are
10 able to take advantage of such opportunities.
11 (e) Thus, to maximize the availability of innovative housing settings,
12 this legislation directs the office for people with developmental disa-
13 bilities ("OPWDD") to create an Innovative Housing Initiative that
14 enables persons with developmental disabilities to live more independ-
15 ently, including housing that is owned or leased in their name, or by
16 someone else on behalf of such person or that of a trust established for
17 their benefit, with supports provided through OPWDD, such as availabili-
18 ty of shared direct support personnel. In this way, OPWDD will help
19 ensure that persons with developmental disabilities are afforded
20 settings that are the most integrated and appropriate for their needs.
21 § 2. The mental hygiene law is amended by adding a new section 16.38
22 to read as follows:
23 § 16.38 Innovative housing initiative.
24 (a) The office shall enable persons with a developmental disability to
25 live independently in a residential environment, with support services,
26 including but not limited to staffing support, shared staffing support,
27 and opportunities for social engagement and recreation.
28 (b) Such residential environment may be comprised of a single housing
29 unit or multiple units of housing, in one or more buildings, including
30 but not limited to: (i) leased residential housing units; (ii) housing
31 that qualifies as a cooperative interest in realty under section three
32 hundred fifty-two-e of the general business law; and (iii) condominium
33 units under article nine-B of the real property law. The interest in
34 such residential unit may be leased or owned by a person with a develop-
35 mental disability, or an entity on behalf of such person, including but
36 not limited to a trust established for such person's benefit. Each unit
37 of residential housing may be occupied by no more than the number of
38 unrelated persons permitted by local law.
39 (c) The selection of the residential environment, the person or
40 persons with whom they live and the determination that they may inde-
41 pendently live in such residential environment, with support services,
42 shall be made solely by such person with a developmental disability and
43 their qualified representative.
44 (d) In recognition of the requirement that the individual's experience
45 shall determine whether a residential environment is the most integrated
46 and appropriate for the needs of the person with a developmental disa-
47 bility, in determining eligibility for any housing program, support
48 services or other benefits, the office shall:
49 (1) honor the right of the person with a developmental disability to
50 choose the residential environment and with whom they may live;
51 (2) maximize the types of residential environments in which a person
52 with a developmental disability may live while being eligible for funds
53 through a home and community based waiver to the full extent permitted
54 by federal law; and
A. 6575--A 3
1 (3) permit a number of persons with a developmental disability to live
2 in a residential environment when viewed as a whole up to the full
3 extent permitted by federal law.
4 (e) This section shall not limit or otherwise affect requirements
5 applying to:
6 (1) an integrated supportive housing program administered by the
7 office in coordination with the division of housing and community
8 renewal (commonly referred to as the Integrative Supportive Housing
9 program or "ISH"); or
10 (2) projects developed as part of an empire state supportive housing
11 initiative (commonly referred to as "ESSHI").
12 (f) The office shall coordinate with the department of health to
13 determine whether an amendment to the state plan authorized by section
14 three hundred sixty-three-a of the social services law or a waiver is
15 required from the federal Centers for Medicare and Medicaid Services
16 ("CMS") to maximize federal financial participation for the initiative
17 described in this section no more than thirty days from the effective
18 date of this section. If the office determines that an amendment to the
19 state plan or a waiver is required or desirable, the department of
20 health shall submit such amendment or apply to CMS for such waiver with-
21 in twelve months from the date of said determination.
22 (g) The office may conduct public hearings to receive public comment
23 on how residential environments that include innovative housing author-
24 ized by this section can best be integrated with the broader community.
25 (h) This section shall not be construed to permit the operation with-
26 out an operating certificate of a community residence, community resi-
27 dential facility for the disabled, supervised living facility, support-
28 ive living facility, or any other provider of service requiring an
29 operating certificate under section 16.03 of this article. Nothing in
30 this section shall be interpreted as authorizing an increase in the
31 number of beds approved for a community residence, community residential
32 facility for the disabled, supervised living facility, supportive living
33 facility, or any other provider of service requiring an operating
34 certificate under section 16.03 of this article.
35 (i) Residential environments in which persons with a developmental
36 disability receive services pursuant to the innovative housing initi-
37 ative described by this section shall not discriminate against any resi-
38 dent or potential resident based on race, creed, age other than being at
39 least eighteen years of age, color, national origin, sex, disability,
40 marital status, military status, family status, sexual orientation,
41 gender identity or expression, or any other protected characteristic
42 under the New York state human rights law.
43 § 3. The division of housing and community renewal shall establish
44 guidelines for the dissemination of disclosure materials for the offer
45 and sale of interests in residential environments formed under the inno-
46 vative housing initiative established by section 16.38 of the mental
47 hygiene law, including (a) housing that qualifies as a cooperative
48 interest in realty under section 352-e of the general business law; (b)
49 condominium units under article 9-B of the real property law; and (c)
50 shares in a housing development fund corporation which are otherwise
51 exempt from the filing requirements of section 352-e of the general
52 business law, to ensure material information is disclosed to any
53 prospective shareholder that: (i) fully describes the risks to a
54 prospective shareholder's investment; and (ii) encourages the prospec-
55 tive shareholder to consult with legal counsel prior to purchasing any
56 shares. The division of housing and community renewal shall make the
A. 6575--A 4
1 disclosure guidelines publicly available on its website in compliance
2 with section 102(14) of the state administrative procedure act.
3 § 4. Section 352-g of the general business law, as added by chapter
4 987 of the laws of 1960, is amended to read as follows:
5 § 352-g. Exemptions. (a) The attorney general, upon application, may
6 exempt from the provisions of sections three hundred fifty-two-e, three
7 hundred fifty-two-f and three hundred fifty-two-h any offerings of secu-
8 rities (1) made to persons not exceeding forty in number or (2) which
9 securities have been fully registered with the securities and exchange
10 commission of the United States of America or have received an exemption
11 therefrom for reasons other than said offering is an intrastate offering
12 to residents of the state of New York only.
13 (b) Residential environments that are formed as housing development
14 fund corporations pursuant to article XI of the private housing finance
15 law and section four hundred two of the business corporation law where
16 such residential environment is formed for persons receiving services
17 under the innovative housing initiative established by section 16.38 of
18 the mental hygiene law and where the division of housing and community
19 renewal is the supervising agency as defined by section five hundred
20 seventy-two of the private housing finance law, and where the division
21 of housing and community renewal requires the housing development fund
22 corporation to enter into a monitoring agreement with a qualified not-
23 for-profit with experience in the oversight, support and management of
24 housing development fund corporations shall be exempt from any filing
25 requirements of section three hundred fifty-two-e of this article for
26 the investment in any residential environments and the conversion of any
27 building, group of buildings or development which are converted to a
28 housing development fund corporation.
29 § 5. This act shall take effect immediately.