What's happening
This bill allows individuals with developmental disabilities to choose to remain in nonintegrated work settings, such as sheltered workshops.
Why it matters
Empowers individuals with developmental disabilities. to exercise real agency over their employment environment, challenging a one-size-fits-all policy and reinforcing personal autonomy in choosing between integrated and nonintegrated work settings.
Imposes safeguards to ensure choices are truly informed,. requiring vocational assessments, trial integrated work experiences, outreach/education, or benefits counseling—measures that help individuals and their families understand all options and the implications for public benefits and quality of life.
Protects continuity and quality of services. for those who choose nonintegrated settings, mandating that they remain eligible for state supports and receive services comparable to those in integrated settings, thus reducing fear of losing benefits or resources.
Aligns state law with federal disability rights standards. (including the Olmstead decision), but clarifies that the state's push for integration should never override the explicit wishes of the person with a disability or their representative, potentially setting a precedent for balancing integration policy with individual choice.
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Who cares
People with developmental disabilities in nonintegrated settings
They could request accommodation to remain in their chosen setting, including a sheltered workshop, and stay there while the request is pending.
- Likely concerns
Families and personal representatives
A personal representative’s informed choice would count, and the commissioner could require benefits counseling or outreach addressing family concerns about supported employment.
Office for People With Developmental Disabilities
The commissioner would decide accommodation requests, could impose specified assessment or counseling requirements, and would have to ensure continued services for people granted accommodations.
- Likely support
Sheltered workshops and other nonintegrated work settings
The commissioner would have to assist work settings in remaining eligible for federal funding to support individuals’ choices on and after May 1, 2023.
Headline styles
Protect Job Setting Choice
Plain English, a few words. Used as the page title.
Sponsors
History
- Referred to mental health and developmental disabilities
- Referred to mental health and developmental disabilities
Full text
3 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
3143
2019-2020 Regular Sessions
IN SENATE
February 4, 2019
Introduced by Sens. HELMING, AKSHAR, GALLIVAN, YOUNG -- read twice and ordered printed, and when printed to be committed to the Committee on Mental Health and Developmental Disabilities
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 Assembly, do enact as follows:
Section 1. Short title. This act shall be known and may be cited as the "employment first choice act".
§ 2. Legislative intent. The legislature hereby supports increasing access to integrated employment settings for individuals with developmental disabilities. The legislature additionally finds, however, that the policy to increase integrated employment opportunities shall not preclude an individual's right to choose either an integrated or nonintegrated setting in accordance with such individual's personal wishes. Furthermore, the legislature supports an individual's informed choice to remain in a nonintegrated setting in order to, among other personal priorities, retain friendships, continue their participation in their community as they so choose, and, in some instances, maintain their ability to earn a paycheck.
The legislature, therefore, finds that individuals with developmental disabilities, who currently participate in a nonintegrated setting, should be allowed to choose to remain in such a setting. To require such individuals to transition out of this chosen environment undermines the guiding Supreme Court decision in Olmstead v. L.C., which held that the Americans with Disabilities Act of 1990 requires placement of individuals with developmental disabilities in integrated settings rather than nonintegrated settings, but only when such a transfer is not opposed by 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.
LBD05115-01-9
S. 3143 2
to be a priority of the state's actions affecting individuals with developmental disabilities.
§ 3. The mental hygiene law is amended by adding a new section 16.02 to read as follows: § 16.02 Individual's right of choice.
Any individual with a developmental disability who is participating in a nonintegrated setting including, but not limited to, a sheltered workshop, and who makes an informed choice to remain in a nonintegrated setting may seek accommodation from the commissioner to allow such placement, provided that pending such request the individual may remain in the nonintegrated setting. For purposes of this section, an "informed choice" includes the informed choice of an individual or of an individual's personal representative.
(a) Accommodations shall be granted at the discretion of the commissioner, who may also require that the individual has completed at least one of the following:
(1) Participation in at least one vocational assessment every five years in accordance with regulations promulgated by the commissioner. The primary purpose of a vocational assessment shall be to determine an individual's interests, strengths and abilities, in order to identify a suitable match between the individual and a competitive integrated employment setting;
(2) Completion of one trial integrated work experience every five years, which can include any work experience with or without pay in which the individual works alongside non-disabled coworkers, customers or peers, with the appropriate services and supports for a sufficient period of time to establish whether an individual's interests, skills and abilities are well-suited for the particular job. The trial integrated work experience shall be selected through a person-centered planning process and shall be individually tailored to each person. Alternatively, the commissioner may consider the individual's demonstration of an inability to participate in an integrated work setting due to a documented medical condition that poses an immediate and serious threat to the individual's health or safety, or the health or safety of others in an integrated work setting;
(3) Receipt of outreach, education and support services in accordance with regulations promulgated by the commissioner. Outreach, education and support services are services designed to explain the benefits of supported employment, as defined in subdivision eleven of section one thousand two of the education law, that address concerns of families and perceived obstacles to participation, and are designed to encourage individuals in day activity service programs, including in sheltered workshops and facility-based day programs, and their families to seek supported employment services, as defined under subdivision twelve of section one thousand two of the education law; or
(4) Involvement in a benefits counseling consultation in accordance with regulations promulgated by the commissioner. A benefit counseling consultation shall provide information to the individual and his or her family or guardian about the impact of earned income on the individual's public benefits.
(b) The office shall ensure that individuals who are granted accommodation to participate in a nonintegrated setting shall continue to receive services and any additional services the office determines are necessary to enable the individual's meaningful participation in the chosen setting.
S. 3143 3
(c) The procedures for obtaining accommodation to remain in a nonintegrated setting shall not supersede nor bar the individual's choice to remain in a nonintegrated setting.
(d) The accommodation to remain in a nonintegrated setting shall not diminish the individual's eligibility for receipt of services under title eleven of article five of the social services law, and such individual's eligibility to receive such services shall be substantially similar to benefits that would have been received had the individual chosen to participate in an integrated setting.
(e) The commissioner is authorized to issue, amend or repeal any regulations as necessary to implement the provisions of this section.
(f) The commissioner, in consultation with stakeholders, shall take such actions as shall be necessary to comply with federal law, obtain federal funding, and assist work settings to remain eligible for federal funding, in order to enable each individual's choice, for the purpose of this section, on and after May first, two thousand twenty-three.
§ 4. This act shall take effect immediately.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
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
Purpose
The purpose of this bill is to preserve the right of individuals with developmental disabilities to choose to remain in a nonintegrated setting. The bill also directs the Commissioner of the Office for People with Developmental Disabilities 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.
Summary of provisions
Section 1 establishes the act to be known as the "Employment First Choice Act."
Read the full memo (878 words)
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 Develop- mental 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 Devel- opmental Disabilities to resubmit its final New York plan to increase competitive employment opportunities for people with developmental disa- bilities, 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 elimi- nate 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 disabil- ities 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 inte- grated 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 transi- tion 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 commu- nity 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 impor- tant 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 inte- grated employment and would prefer nonintegrated employment to other alternatives, or who choose to remain in a nonintegrated setting alto- gether, are at risk of being divested of their most meaningful or engag- ing activity should a nonintegrated environment be unavailable.
This bill, therefore, preserves the right of individuals with develop- mental disabilities to choose to remain in a nonintegrated setting. The bill also directs the Commissioner of OPWDD to modify the State's agree- ment on the closure of nonintegrated settings with the Centers for Medi- care and Medicaid Services, to allow for informed choice and to safe- guard 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 indi- viduals with developmental disabilities who are current sheltered work- shop 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.
Prior legislative history
2017-2018: S.4534 Referred to Mental Health and Developmental Disabili- ties 2016: S.6612 Passed Senate 2015: S.3893-8 Recommitted to Rules
Fiscal implications
Undetermined.
Effective date
This act shall take effect immediately.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.