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.
STATE OF NEW YORK
________________________________________________________________________
3480
2023-2024 Regular Sessions
IN SENATE
January 31, 2023
___________
Introduced by Sens. HELMING, BORRELLO, GALLIVAN -- read twice and
ordered printed, and when printed to be committed 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:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "employment first choice act".
3 § 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 informed choice to
10 remain in a nonintegrated setting in order to, among other personal
11 priorities, retain friendships, continue their participation in their
12 community as they so choose, and, in some instances, maintain their
13 ability to earn a 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
22 the affected individual. The legislature, therefore, declares this act
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04926-01-3
S. 3480 2
1 to be a priority of the state's actions affecting individuals with
2 developmental disabilities.
3 § 3. The mental hygiene law is amended by adding a new section 16.02
4 to read as follows:
5 § 16.02 Individual's right of choice.
6 Any individual with a developmental disability who is participating in
7 a nonintegrated setting including, but not limited to, a sheltered work-
8 shop, and who makes an informed choice to remain in a nonintegrated
9 setting may seek accommodation from the commissioner to allow such
10 placement, provided that pending such request the individual may remain
11 in the nonintegrated setting. For purposes of this section, an "informed
12 choice" includes the informed choice of an individual or of an individ-
13 ual's personal representative.
14 (a) Accommodations shall be granted at the discretion of the commis-
15 sioner, who may also require that the individual has completed at least
16 one of the following:
17 (1) Participation in at least one vocational assessment every five
18 years in accordance with regulations promulgated by the commissioner.
19 The primary purpose of a vocational assessment shall be to determine an
20 individual's interests, strengths and abilities, in order to identify a
21 suitable match between the individual and a competitive integrated
22 employment setting;
23 (2) Completion of one trial integrated work experience every five
24 years, which can include any work experience with or without pay in
25 which the individual works alongside non-disabled coworkers, customers
26 or peers, with the appropriate services and supports for a sufficient
27 period of time to establish whether an individual's interests, skills
28 and abilities are well-suited for the particular job. The trial inte-
29 grated work experience shall be selected through a person-centered plan-
30 ning process and shall be individually tailored to each person. Alterna-
31 tively, the commissioner may consider the individual's demonstration of
32 an inability to participate in an integrated work setting due to a docu-
33 mented medical condition that poses an immediate and serious threat to
34 the individual's health or safety, or the health or safety of others in
35 an integrated work setting;
36 (3) Receipt of outreach, education and support services in accordance
37 with regulations promulgated by the commissioner. Outreach, education
38 and support services are services designed to explain the benefits of
39 supported employment, as defined in subdivision eleven of section one
40 thousand two of the education law, that address concerns of families and
41 perceived obstacles to participation, and are designed to encourage
42 individuals in day activity service programs, including in sheltered
43 workshops and facility-based day programs, and their families to seek
44 supported employment services, as defined under subdivision twelve of
45 section one thousand two of the education law; or
46 (4) Involvement in a benefits counseling consultation in accordance
47 with regulations promulgated by the commissioner. A benefit counseling
48 consultation shall provide information to the individual and his or her
49 family or guardian about the impact of earned income on the individual's
50 public benefits.
51 (b) The office shall ensure that individuals who are granted accommo-
52 dation to participate in a nonintegrated setting shall continue to
53 receive services and any additional services the office determines are
54 necessary to enable the individual's meaningful participation in the
55 chosen setting.
S. 3480 3
1 (c) The procedures for obtaining accommodation to remain in a noninte-
2 grated setting shall not supersede nor bar the individual's choice to
3 remain in a nonintegrated setting.
4 (d) The accommodation to remain in a nonintegrated setting shall not
5 diminish the individual's eligibility for receipt of services under
6 title eleven of article five of the social services law, and such indi-
7 vidual's eligibility to receive such services shall be substantially
8 similar to benefits that would have been received had the individual
9 chosen to participate in an integrated setting.
10 (e) The commissioner is authorized to issue, amend or repeal any regu-
11 lations as necessary to implement the provisions of this section.
12 (f) The commissioner, in consultation with stakeholders, shall take
13 such actions as shall be necessary to comply with federal law, obtain
14 federal funding, and assist work settings to remain eligible for federal
15 funding, in order to enable each individual's choice, for the purpose of
16 this section, on and after May first, two thousand twenty-seven.
17 § 4. This act shall take effect immediately.
