Creates the "protection of adults with mental disabilities act" to provide for fair and meaningful due process proceedings relating to a proposed change of placement, a proposed change in service or denial of services by the offices of the department of mental hygiene.
STATE OF NEW YORK
________________________________________________________________________
3897
2025-2026 Regular Sessions
IN ASSEMBLY
January 30, 2025
___________
Introduced by M. of A. SIMON, SEAWRIGHT -- read once and referred to the
Committee on Judiciary
AN ACT to amend the mental hygiene law, in relation to due process
procedures for all adults with developmental disabilities
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "protection
2 of adults with developmental disabilities act".
3 § 2. Legislative findings and intent. Certain federal and state laws
4 and regulations currently provide various due process protections for
5 certain categories of persons with developmental disabilities. For
6 example, the federal Individuals with Disabilities Education Act
7 provides a child or parents of a child with a disability important due
8 process protections, including the right to an impartial hearing to
9 challenge a determination regarding the appropriate setting for a child
10 with a disability. New York state also provides substantial due process
11 protections for the parents of a child with a disability who needs resi-
12 dential care while this child is in school.
13 However, when a developmentally disabled individual reaches the age of
14 twenty-one, their due process protections become significantly dimin-
15 ished or, in some cases, end completely. Specifically, those develop-
16 mentally disabled adults in transitional care who reach the age of twen-
17 ty-one on or before June 30, 1996 have minimal due process protections
18 pursuant to section 13.38 of the mental hygiene law, and those who
19 reached age twenty-one on or after July 1, 1996 receive no due process
20 protections. Some of New York's most vulnerable adult populations,
21 including those who remain continuously disabled and continuously in
22 need of residential or other forms of care, thus lose important due
23 process protections simply because of their age.
24 The legislature recognizes that inappropriate or ineffective place-
25 ments and/or services for persons with developmental disabilities can
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06454-01-5
A. 3897 2
1 have devastating effects for those persons impacted, including abuse,
2 self-harm, improper medication or even death. Additionally, the legis-
3 lature recognizes the harm a person with developmental disabilities can
4 suffer from the disruption to such person with development disabilities'
5 current treatment needs, home life and familiar surroundings that an
6 inappropriate change in placement, or an improper change in services,
7 entails. Moreover, it is increasingly the policy of the state of New
8 York to afford persons with disabilities the opportunity to participate
9 in their treatment and residential placement decisions, and to obtain
10 their or their guardian's consent prior to any changes of placement.
11 The legislature hereby finds that New York state must ensure that all
12 developmentally disabled adults are afforded necessary and basic due
13 process protections, and fair and meaningful due process proceedings,
14 relating to proposed changes in placement, or proposed changes in
15 services rendered, to those developmentally disabled adults under the
16 care of New York state agencies to ensure that appropriate, effective
17 treatment and placements are provided for this highly vulnerable adult
18 population.
19 In order to ensure that New York state is providing the most appropri-
20 ate setting and services for all persons with developmental disabili-
21 ties, the legislature hereby finds that it is incumbent upon New York
22 state to institute uniform minimum due process protections for all
23 persons with developmental disabilities age twenty-one and older. These
24 protections provide, in part, for fair and meaningful due process
25 proceedings relating to a proposed change of placement or a proposed
26 change in services by the offices of the department of mental hygiene,
27 and are intended to supplement and strengthen the patchwork of various
28 protections for adults with developmental disabilities in place under
29 existing laws.
30 § 3. The mental hygiene law is amended by adding a new section 13.36
31 to read as follows:
32 § 13.36 Protection of adults with developmental disabilities.
33 1. Definitions. As used in this section, unless otherwise expressly
34 stated or unless the context otherwise requires:
35 (a) "Adults with developmental disabilities" means all persons with a
36 mental disability, as that term is defined in section 1.03 of this chap-
37 ter, and who are twenty-one years old or older, or the guardian or guar-
38 dians or representative or representatives of any such person, if any
39 exist.
40 (b) "Services" means any and all care and treatment rendered to adults
41 with developmental disabilities (i) who are under the care, authority,
42 jurisdiction, supervision or control of the various offices of the
43 department, and/or (ii) which are funded in any part by any office of
44 the department. As used in this section, "services" includes, but is not
45 limited to, "services for the developmentally disabled" as that term is
46 defined in section 1.03 of this chapter, as well as any other treatment
47 of any form or type.
48 (c) "Triggering event" means any proposed action, or denial, by the
49 department or any of its offices, as described in subparagraph (i) of
50 paragraph (a) or subparagraph (i) of paragraph (b) of subdivision two of
51 this section.
52 2. Role of department; triggering events. The department, through its
53 various offices and in conjunction with any other necessary state agency
54 or office, where applicable, shall develop, implement, and ensure a
55 system of meaningful due process protections for adults with develop-
56 mental disabilities, and shall develop and promulgate regulations, poli-
A. 3897 3
1 cies and procedures necessary to resolve objections by or on behalf of
2 adults with developmental disabilities in conformance with this section.
3 Such due process protections shall be afforded to adults with develop-
4 mental disabilities when:
5 (a) any office of the department initiates a proposal which may result
6 in:
7 (i) a change in placement for an adult with developmental disabili-
8 ties, including any proposed discharge or relocation from a facility
9 where services are being provided; or
10 (ii) a reduction, suspension or termination of specific services or
11 funding which is being provided to an adult with developmental disabili-
12 ties pursuant to an individualized treatment plan, including an individ-
13 ualized services plan; and,
14 (iii) a timely objection to such proposal or proposals and a request
15 for an administrative appeal is made by or on behalf of an adult with
16 developmental disabilities; or,
17 (b) any office of the department:
18 (i) denies an adult with developmental disabilities specific services
19 or a specific placement which is recommended for that individual pursu-
20 ant to an individualized treatment plan, including an individualized
21 services plan; and,
22 (ii) a timely objection to such denial or denials and a request for an
23 administrative appeal is made by or on behalf of an adult with develop-
24 mental disabilities.
25 3. Minimum due process protections. Due process protections for adults
26 with developmental disabilities implemented by the department and its
27 offices shall include, at a minimum, the rights of adults with develop-
28 mental disabilities:
29 (a) to be provided with advance written notice by the relevant office
30 of the department of any triggering event, whether it be a proposed
31 action or a denial by such office of the department, which notice shall
32 set forth all reasons and documentation, if any, in support of the
33 determination by the relevant office of the department, and which shall
34 specifically advise an adult with developmental disabilities as to such
35 adult with developmental disabilities' right to formally object in writ-
36 ing and to request an administrative hearing within thirty days of
37 receipt of notice of the triggering event, and as to their other rights
38 as provided within this section;
39 (b) to be represented in any proceedings before the relevant office of
40 the department by any person including, but not limited to, a parent,
41 guardian, correspondent, advocate, legal representative, themselves, or
42 any other person or representative;
43 (c) to request, and to be provided with, an opportunity to present, in
44 a meaningful fashion and at a reasonable time not less than fourteen
45 days from the date a written request for an administrative hearing is
46 made, any objection to a triggering event by the relevant office of the
47 department to an impartial decision maker in the context of an evidenti-
48 ary hearing;
49 (d) to discover and obtain, and have a meaningful opportunity to
50 review in advance of the evidentiary hearing, any documents to be used
51 by the relevant office of the department in support of its determination
52 at such hearing;
53 (e) to present and elicit evidence and witnesses, and confront and
54 cross-examine evidence and witnesses at such evidentiary hearing;
55 (f) to obtain a reasonably prompt written determination by the impar-
56 tial hearing officer, which shall be based on the evidence and testimony
A. 3897 4
1 introduced and rendered at the hearing, and in which it is determined
2 whether the triggering event taken or proposed by the relevant office of
3 the department, if ultimately allowed, would be (i) in the overall best,
4 individual interests of the adult with developmental disabilities, (ii)
5 result in appropriate, effective services and/or placement for such
6 individual, and (iii) so as to best enable their personal development;
7 (g) to appeal, if necessary, the written determination rendered by the
8 impartial hearing officer to the commissioner of the relevant office of
9 the department, who may remand the matter to the hearing officer for
10 further review or findings, if necessary, and who shall, after review of
11 the matter, issue a further written determination which shall be binding
12 on the relevant office of the department as its final administrative
13 determination;
14 (h) to appeal, if necessary, the final written determination rendered
15 by the commissioner on behalf of the relevant office of the department
16 by way of a proceeding pursuant to article seventy-eight of the civil
17 practice law and rules; and
18 (i) to continued services, programming, funding and placement by the
19 relevant office of the department, of the same level and type as that
20 provided by such office prior to the triggering event, during the period
21 that an objection by an adult with developmental disabilities is under-
22 going administrative and/or appellate review, unless as otherwise agreed
23 to by such office and such adult with developmental disabilities or such
24 adult with developmental disabilities' guardian or representative.
25 4. Nothing in this section shall prevent the department and its
26 offices from designing and implementing dispute resolution mechanisms
27 which are not inconsistent with the due process protections for adults
28 with developmental disabilities set forth by this section, including
29 expedited, or informal (non-binding), dispute resolution mechanisms that
30 may be agreed to by the relevant office of the department and such adult
31 with developmental disabilities or such adult with developmental disa-
32 bilities' guardian or representative.
33 5. The minimum due process protections for adults with developmental
34 disabilities set forth within this section shall serve to supplement and
35 reinforce any and all other laws or authorities which provide for
36 certain rights for the developmentally disabled adult population,
37 including the state administrative procedure act or applicable federal
38 requirements, if any, pertaining to due process protections for such
39 individuals. In the absence of regulations, the provisions of the state
40 administrative procedure act shall control the hearing process where not
41 inconsistent with the provisions of this section. The department,
42 through its offices, shall take all actions necessary to ensure the
43 continued compliance with any applicable federal authorities to the
44 extent that any provision of this section may be deemed to conflict with
45 such authorities.
46 § 4. This act shall take effect immediately.
