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A06575 Summary:

BILL NOA06575A
 
SAME ASNo Same As
 
SPONSORSeawright
 
COSPNSRStirpe, 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.
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A06575 Actions:

BILL NOA06575A
 
04/19/2023referred to people with disabilities
04/21/2023amend and recommit to people with disabilities
04/21/2023print number 6575a
01/03/2024referred to people with disabilities
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A06575 Memo:

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.
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A06575 Text:



 
                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.
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