Relates to the discharge of residents of a community residence

Section 2 of the bill would amend MHL § 41.41 to clarify that there is no landlord-tenant relationship between the operator of a community residence licensed or operated by OPWDD and a resident of such community residence.

Section 3 of the bill would amend MHL § 41.44 to clarify that there is no landlord-tenant relationship between the operator of a community residence licensed or operated by OMH and a resident of such community residence.

Section 3 of the bill would amend MHL § 41.44 to clarify that there is no landlord-tenant relationship between the operator of a community residence licensed or operated by OMH and a resident of such community residence.

Section 4 of the bill would add a new Section 713-b to the Real Property Actions and Proceedings Law (RPAPL) clarifying that discharges of residents from community residences licensed or operated by OPWDD or OMH, or terminations of such residency agreements, shall be made in accordance with procedures established by OMH or OPWDD, as applicable, in their respective governing statutes and implementing regulations.

Section 5 of the bill would provide for an immediate effective date.

Legislative history

2011-12: S.3078/A.8472 - Passed the Senate/Died in mental health. 2009/10: S.3486 - Died in Mental Health and Developmental Disabilities. In 2008, this bill passed the Senate (S.4145) and was referred to the Assembly Mental Health Committee (A.8927).

Statement of support

A "community residence," as such term is defined by MHL § 1.03(28), is any facility operated by or subject to licensure by OMH or OPWDD, which provides a supervised residence or residential respite services for mentally disabled persons. Such residences also provide a homelike environment and room, board and responsible supervision for the habilitation or rehabilitation of mentally disabled persons as part of an overall service delivery system. This proposal would clarify that the relationship of a resident of a community residence and the program operator is a clinical treatment relationship, not that of landlord and tenant.

In OMH programs, community residences are considered clinical treatment programs. In OPWDD programs, community residences are part of the overall program of services and supports provided to the person with a disability which is aimed at integrating the person into society as much as possible. Admission to, and discharge from, these programs are grounded in clinical determinations. However, in recognition of the fact that these programs provide room and board for residents of the program, current regulations of OMH and OPWDD provide appropriate due process protections, including notice and an opportunity to be heard, in cases where non-hospitalized residents are discharged prior to being discharge-ready and wish to dispute their discharge. These due process protections do not require eviction proceedings through housing court, because the relationship between a resident and the program is a clinical treatment relationship, nor a landlord-tenant relationship.

Courts have long urged action by the Legislature to clarify the residential rights of persons with mental disabilities who have been admitted to a treatment facility such as a community residence (see Metalsky v. Mercy Haven, 156 Misc.2d 558 (Sup. Ct. Nassau Cty. 1993); Wims v. Abraham Residence III, 184 Misc.2d 271 (N.Y.C. Civ. Ct. 2000)). In isolated cases such as these, courts have sought to apply statutory requirements appropriate to situations involving a landlord-tenant relationship to treatment facility discharges. However, the Court in Wims noted that there would be "far-reaching ramifications on residential rehabilitation programs throughout the State" that would follow from a treatment facility provider's obligation "to commence legal proceedings to recover possession of the premises upon a resident's termination from a program" (id. at 275).

The consequences of applying landlord-tenant requirements to community residence programs could be detrimental to persons with mental illness, mental retardation, or developmental disabilities. If disputed, discharges from community residences would not be made based upon appropriate clinical determinations, but rather by obtaining an order of eviction through the housing court. This could result in inappropriate clinical outcomes harmful to persons with mental disabilities. It also could be very costly to individual providers, and could have a negative impact on the continued availability of these programs for many persons with mental disabilities, particularly those who have higher service needs.

Budget implications

There is no fiscal impact associated with this proposal.

Effective date

This bill would take effect immediately upon enactment.