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Sponsors
2 Co-sponsors
History
- Substituted by A9518
- Advanced to third reading
- 2nd report cal.
- 1st report cal.341
- Referred to children and families
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Relates to the substitution of the term intellectual disability for the term mental retardation in family court proceedings
Signed by Governor · Sponsor Jo Anne Simon
Full text
The text isn't available here yet. Check nysenate.gov.
Sponsor's memo
Title of bill
An act to amend the domestic relations law, the family court act, the executive law and the social services law, in relation to the substitution of the term intellectual disability for the term mental retardation in family court proceedings
This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of his Family Court and Rules Advisory Committee.
In 2010, the name of the New York State Office of Mental Retardation and Developmental Disabilities was changed to the Office for People With Developmental Disabilities and, in 2011, various provisions of the Mental Hygiene Law were amended to reflect this change. See L. 2010, c. 168; L. 2011, c. 37. Likewise, in 2010, the Federal Rosa's Law was enacted, substituting the term "intellectual disability" for "mental retardation" and discontinuing use of the term "mental retardation" throughout Federal health, education and labor policy. See Public Law 111-256. Significantly, the American Psychiatric Association revised the diagnosis of "mental retardation" to "intellectual disability" in the 2013 Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), the standard manual used by clinicians and researchers to diagnose and classify mental disorders. The revised diagnosis addressed not only the name of the disorder, but also the comprehensive assessment required for its diagnosis, that is, the impact on the conceptual, social and practical domains of an individual's capacity to function. The change to "intellectual disability" brought the DSM-5 into accord with terminology used by the World Health Organization's International Classification of Diseases, the American Association on Intellectual and Developmental Disabilities and the U.S. Department of Education. See DSM-5, at pages 33-41 (Amer. Psychiatric Assoc., 2013); Fact Sheet: Intellectual Disability (Amer. Psychiatric Assoc., 2013). {1}
Read the full memo (945 words)
The provisions of New York State statutes, however, affecting Family Court and family law have not caught up with this advancing trend in both law and psychiatry. Most significantly, the term "mental retardation" remains a ground for termination of parental rights and is the criterion used to determine a child's legal capacity to be prosecuted as a juvenile delinquent. We submit this measure, therefore, to incorporate the modern terminology into the Family Court Act, Domestic Relations Law and Social Services Law. With the stipulation that case law regarding use of the phrase "mental retardation" would remain applicable to the term "intellectual disability," this measure amends the provisions in the Family Court Act, Domestic Relations Law and Social Services Law regarding grounds for termination of parental rights. It further amends the provisions of the Family Court Act regarding the determination of whether a commitment of a child is necessary and of the capacity of an accused juvenile delinquent to stand trial. Additionally, the measure amends the Family Court Act, Executive Law and Social Services Law to correct the name of the State agency to the Office for People With Developmental Disabilities.
The continued, anachronistic use of the term "mental retardation" in New York State law means that the testimony by clinicians in Family Court cases regarding both termination of parental rights of adults and the capacity of children to stand trial no longer matches the statutes. Mental health experts, who have been called upon to testify since the publication of the DSM-5, are using the term "intellectual disability" and acknowledging that this diagnosis was formerly referred to as "mental retardation." As might be expected, this leads to confusion, since the fact-finding order still refers to mental retardation and is not cast in the DSM-5 framework of intellectual capacity in the three functional domains.{2} Moreover, as recognized in the bill memo supporting chapter 37 of the Laws of 2011, the terms "mental retardation" and "mentally retarded" are "outdated and offensive to persons with disabilities"; the supporting memo from O.P.W.D.D. notes that the terms are "derogatory or demeaning" and inconsistent with the "important" international trend to remove "retardation" from nomenclature. See Memo in Support of Assembly Bill 6840 and Memo of O.P.W.D.D. (N.Y. Bill Jacket 2011 A.B. 6840, Ch. 37).
In upholding the constitutionality of section 384-b(4)(c) of the Social Services Law, which authorizes termination of parental rights on the ground of "mental retardation," the New York Court of Appeals stated that "(t)he statutes provide significant procedural safeguards for the birth parent's rights and authorize termination of parental rights only when specific and definite criteria are met and when necessary in the best interest of the child," In the Matter of Guardianship and Custody of Nereida S., 57 NY2d 636, 640 (1982). Given the high court's emphasis on "specific and definite criteria," it is critically important for the clinical testimony and evidence to match the statutory criteria for the drastic remedy of parental rights termination and, in turn, for the statute to incorporate the medically-accepted term, "intellectual disability."
This proposed change in language will not only bring the statutes into conformity with current medical terminology, but it also will recognize the societal norm in defining persons with this mental disorder. Moreover, the proposed change will be invaluable to mental health experts, legal practitioners and jurists in their ability to accurately define, apply and make legal determinations concerning persons who are "intellectually disabled" within the meaning and criteria of the DSM-5.
This measure, which would have no fiscal impact on the State, would take effect immediately.
Legislative history
None. New proposal.
{1} See wwvv.dsm5.org/documents/intellectual%20disability%20fact%20sheet.pdf.
{2} In the related guardianship context, a Surrogate judge recently indicated, in Matter of D. D., 2015 Slip Op 25364 (Surr.Ct., Kings Co., Oct. 28, 2015) that the term "intellectual disability" would be used, notwithstanding the fact that the Surrogates Court Procedure Act still refers to "mental retardation."
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