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

Section 2 states the legislative intent of the act, which is to preserve an individual's right to choose whether to remain in a nonintegrated setting.

Section 3 adds a new section 16.02 to article 16 of the mental hygiene law, to direct the Commissioner of the Office for People With Developmental Disabilities to establish a procedure for granting accommodations to individuals who choose to remain in a nonintegrated setting. This section also provides for the continued receipt of services regardless of the choice of setting.

Section 4 directs the Commissioner of the Office for People With Developmental Disabilities to resubmit its final New York plan to increase competitive employment opportunities for people with developmental disabilities, in order to continue eligibility for federal funding for prevocational services.

Section 5 establishes the effective date.

Justification

According to the New York State Office for People with Developmental Disabilities' ("OPWDD") report to the legislature pursuant to chapter 60 of the laws of 2014 (the "Report"), New York State plans to fully eliminate funding for nonintegrated settings, including sheltered workshops, over the next six years. Therefore, all individuals now in nonintegrated settings, irrespective of their wishes, will be required to leave those facilities by 2020 or 2021. Many individuals with developmental disabilities depend on these settings to socialize, to earn a paycheck, and to improve and maintain their functional and vocational skills.

Further, in its Report, OPWDD estimates that only half of the current approximately 8,000 workshop participants will transition to an integrated work setting when nonintegrated settings are discontinued. The remaining participants will likely choose not to join an integrated work setting because the setting is not appropriate for their unique needs and does not fit into their individualized service plan. The disruption and hardship that will be experienced by some individuals who currently participate in a nonintegrated setting, but who do not want to transition to any other activity, is alarming. While these concerns were raised numerous times by public participants in the twelve community dialogues held by OPWDD in 2014, this issue was not addressed or resolved in the Report. This result is contrary to the clear wording of the guiding U.S. Supreme Court decision in Olmstead v. L.C., which held that states are required to place individuals with developmental disabilities in community settings rather than in institutions when, among other conditions, "the transfer from institutional care to a less restrictive setting is not opposed by the affected individual . . . ."

New York's rural areas, which extend through much of the State, pose additional challenges that may further limit an individual's choice, making the choice to remain in a nonintegrated setting even more important to preserve. An absence of competitive employment opportunities may prevent an individual from realizing the choice to participate in an integrated setting. In addition, and also specific to rural areas throughout the State, alternatives to employment are limited, and some individuals may be transferred from a nonintegrated setting to simply staying at home. As such, individuals who either cannot obtain integrated employment and would prefer nonintegrated employment to other alternatives, or who choose to remain in a nonintegrated setting altogether, are at risk of being divested of their most meaningful or engaging activity should a nonintegrated environment be unavailable.

This bill, therefore, preserves the right of individuals with developmental disabilities to choose to remain in a nonintegrated setting. The bill also directs the Commissioner of OPWDD to modify the State's agreement on the closure of nonintegrated settings with the Centers for Medicare and Medicaid Services, to allow for informed choice and to safeguard the continued receipt of pertinent federal Medicaid funds.

Finally, and critically, the bill echoes the intent of the U.S. Supreme Court's decision in Olmstead v. L.C. as well as the provisions of the Rhode Island Consent Decree. This landmark agreement between the U.S. Department of Justice and the State of Rhode Island strongly encourages integrated and competitive employment, but recognizes the right of individuals with developmental disabilities who are current sheltered workshop participants to remain in that setting if they choose to do so. Importantly, the bill also mirrors the Rhode Island Consent Decree's process for making such an informed choice.

Legislative history

2015:S.3893-B

Fiscal implications

Undetermined.

Effective date

This act shall take effect immediately.