Relates to transitional care

Summary of specific provisions

Section 1: Amends section 13.37-a of the mental hygiene law by redefining transitional care such that all those who are disabled and in need of residential care are treated equally, regardless of whether they "aged out" prior to July 1, 1996 or after.

Section 2: Amends section 13.38-a of the mental hygiene law to apply to all persons who are at the age or time to first qualify for transitional care.

Section 3: Amends section 13.38-e of the mental hygiene law to provide that upon the determination that a person who is receiving transitional care can be appropriately cared for in an available adult care facility approved by the office, the office shall notify the person, the person's guardian, by certified mail, return receipt requested. The person or the person's guardian or a qualified person may then make a due process administrative appeal within 30 days of the date of notification. Then an administrative appeal, consistent with the State Administrative Procedure Act, will review the case and make a determination as to the appropriateness of the proposed placement. The decision is subject to judicial review under article 78 of the CPLR.

Section 4: Sets effective date (immediately).

Justification

The Individuals with Disabilities Education Act (IDEA) gives the parent(s) of a disabled child the right to a due process hearing to challenge a determination regarding the most appropriate setting for a disabled child. New York State provides protections for disabled children and their parents while they are in school. Similarly, OPWDD regulations provide due process protections for all OPWDD clients.

Developmentally disabled persons who reach the age of twenty-one and remain continuously disabled and continuously in need of residential

care are afforded minimal or no due process protections. Pursuant to section 13.38 of the mental hygiene law, those who reach age twenty-one on or before June 30, 1996 may object to a change in placement proposed by the office, by appealing to the commissioner of the office. Effectively, parents are forced to appeal to the very same office that originally proposed the transfer. Moreover, persons with developmental disabilities who reach age twenty-one after June 30, 1996 are provided no due process rights whatsoever. New York State eliminated the right to appeal entirely based on the belief that there would be adequate availability of appropriate in-state placements and services for such persons. Now, nineteen years later, the office remains unable to place some persons with developmental disabilities into appropriate in-state adult placements.

Notwithstanding the present unavailability of appropriate in-state placements, current law fails to acknowledge the devastating effects that an inappropriate placement can have on a person with developmental disabilities, including abuse, self-injury, improper medication or death. Additionally, there is absolutely no recognition of the potential harm arising directly from a transfer which necessitates a disruption to the disabled person's current treatment needs, home life and familiar surroundings.

This bill would establish a mechanism for review of the proposed change of placement of persons with developmental disabilities, taking into account the overall appropriateness of the proposed placement and the potential harm that could result from the proposed transfer. There is no policy rationale for denying these disabled adults the same due process rights as are provided to all other OPWDD clients. In fact, the disparate treatment of these disabled transitional care adults is probably actionable under our equal protection laws, and exposes New York to potential liability.

This bill will restore confidence and ensure that New York State is truly committed to the appropriate placement of our developmentally disabled population by affording them due process rights regarding transfers to different residential facilities.

Prior legislative history

None.

Fiscal implications

Minimal

Effective date

This act shall take effect immediately after it shall have become a law.