BILL NUMBER: S4908A
SPONSOR: FAHY
TITLE OF BILL:
An act to amend the mental hygiene law, in relation to the creation of
an innovative housing initiative for persons with a developmental disa-
bility who wish and are able to safely reside in such a setting; to
direct the division of housing and community renewal to establish guide-
lines for the dissemination of disclosure materials for the offer and
sale of interests in residential environments formed under the innova-
tive housing initiative; and to amend the general business law, in
relation to creating an exemption from certain filing requirements for
residential environments that are formed as cooperative interests in
realty for persons receiving services under the innovative housing
initiative
PURPOSE:
The purpose of this bill is to provide innovative housing opportunities
for persons with a developmental disability and enable them to reside
together and live more independently.
SUMMARY OF PROVISIONS:
Section 1 of the bill is the legislative purpose and findings.
Section 2 amends the mental hygiene law by adding a new section 16.38
titled Innovative Housing Initiative to provide that:
(a) The office for people with developmental disabilities shall enable
persons with a developmental disability to live independently, with
support services, including staffing support, shared staffing support
and opportunities for social engagement and recreation, in a residential
environment.
(b) Such residential environment may be comprised of a single housing
unit or multiple units of housing, in one or more buildings, including
leased residential housing, housing that qualifies as a cooperative
interest in realty and condominium units.
(c) The selection of the residential environment, the persons with whom
the individual lives and the determination that a person with a develop-
mental disability may independently live in such residential environ-
ment, with support services, shall be made solely by such person with a
disability and their qualified representative.
(d) In recognition of the requirement that the individual's experience
shoal determine whether a residential environment is the most integrated
and appropriate for the needs of the person with a developmental disa-
bility, in determining eligibility for any housing program, support
services or other benefits, the office shall:
1. honor the right of the person with a developmental disability to
choose the residential environment in which such individual may live and
with whom;
2. maximize the types of residential settings in which a person with a
developmental disability may live while being eligible for funds through
a home and community based waiver, to the full extent permitted by
federal law; and
3. permit a number of persons with developmental disabilities to live in
a residential environment when viewed as a whole up to the full extent
permitted by federal law.
(e) This section shall not limit or otherwise affect requirements apply-
ing to an integrated supporting housing program administered by the
office; or projects developed as part of an empire state supportive
housing initiative.
(f) The office and the department of health shall determine whether an
amendment to the state plan or a waiver is required to maximize federal
financial participation for the program. If required or desirable, the
department of health shall submit such amendment or apply for such waiv-
er no more than ninety days from the date that this section becomes
effective.
(g) The office and the department of health shall ensure that any state
transition plan that relates to federal regulations governing home and
community-based services is written, amended or supplemented to include
recognition of the innovative housing initiative described by this
section.
(h) This section shall not be construed to permit the operation without
an operating certificate of any provider of service requiring an operat-
ing certificate under section 16.03 of this article.
Section 3 provides that the division of housing and community renewal
shall establish guidelines for the dissemination of disclosure materials
for the offer and sale of interests in residential environments formed
under the innovative housing initiative established by section 16.38 of
the mental hygiene law, to ensure material information is disclosed to a
prospective purchaser.
Section 4 amends general business law section 352-g, to provide that
residential environments that are formed as housing development fund
corporations and pursuant to section four hundred two of the business
corporation law where such residential environment is formed for persons
receiving services under the innovative housing initiative established
by section 16.38 of the mental hygiene law, shall be exempt from any
filing requirements of section three hundred fifty-two-e of the general
business law for the investment in any residential environments and the
conversion of any building, group of buildings or development which are
converted to a housing development fund corporation.
Section 5 sets the effective date.
JUSTIFICATION:
In 1999, in the seminal case Olmstead v. L.C. (hereinafter "Olmstead"),
the United States Supreme Court held that governments must provide
community-based services to persons with disabilities when (i) such
services are appropriate; (ii) the affected persons do not oppose commu-
nity- based treatment; and (iii) community-based services can be reason-
ably accommodated, taking into account the resources available to the
public entity and the needs of others who are receiving disability
services from the entity.
As a result of Olmstead, as well as subsequent actions brought by fami-
lies and advocates, state and local governments are required to ensure
that persons with disabilities, including developmental disabilities,
can live in the most integrated setting appropriate for their needs.
Today, many persons with developmental disabilities live with a parent
or parents, a family member, or other similar direct support personnel.
However, many such persons wish to live more independently, and would do
so if an option existed that included certain supports. For such
persons, living with a parent or other direct support personnel is not
the most integrated setting that is appropriate for their needs.
Further, although family caregiving is appropriate in many instances, a
system that relies primarily on parents and similar direct support
personnel to provide a non-institutional living setting is not sustaina-
ble. The parent or direct support personnel eventually becomes unable to
continue supporting the person who has a developmental disability, due
to the direct support personnel's infirmity, death, or other concerns.
When that happens, the person with a developmental disability may need
to move to a certified housing setting, commonly referred to as a group
home, which is a more restrictive environment than an innovative housing
program could provide. Often, available group homes are located far from
the communities in which people have lived their entire lives. Although
group homes may be appropriate for some persons with developmental disa-
bilities, they are not appropriate for those persons with disabilities
who wish and are able to live more independently. Currently, group
homes, even for those who choose to live in that setting, do not number
nearly enough to meet the need.
A system that creates unnecessary pressure to place persons with devel-
opmental disabilities in group homes directly contravenes the spirit of
Olmstead. Perhaps more importantly, it works a double trauma upon the
person with a developmental disability, who has no option but to move
from their long-time home while, at the same time, grieving the loss of
a parent or direct support personnel.
Accordingly, there is a need to create new and innovative housing initi-
atives that maximize independence for persons with developmental disa-
bilities. This bill would provide more opportunities to provide inde-
pendent housing options to persons with developmental disabilities,
where such persons wish and are able with support services to take
advantage of such opportunities.
Indeed, in a recent letter, the Acting Deputy Administrator and Director
of the federal Centers for Medicare and Medicaid Services ("CMS") stated
that there is no cap or percentage used to determine whether housing for
people with developmental disabilities satisfies the federal home and
community-based setting rule, which is designed to ensure that Medicaid
funded housing programs comply with Olmstead principles. CMS clarified
that every state must assess each setting and "focus ... on the experi-
ence of the individual in the setting." Persons with developmental
disabilities can in fact live in close proximity in a safe, healthy and
integrated residential environment, especially when that environment is
chosen by the person and augmented with supports that maximize the
person's independence and that are less intensive than the services
provided in an institutional setting.
Thus, to maximize the availability of innovative housing settings, this
legislation sets forth the criteria for the Office for People with
Developmental Disabilities ("OPWDD") to maximize the opportunity for
innovative housing initiatives that enable persons with developmental
disabilities to live more independently, with certain supports provided
through OPWDD, such as shared direct support personnel. In this way,
these housing initiatives will ensure that persons with developmental
disabilities are afforded settings that are the most integrated and
appropriate for their needs and honors their right to choose where they
may live and with whom.
The bill would also exempt residential environments that are formed as
housing development fund corporations from the filing requirements of
the Martin Act, and vests sole jurisdiction with the Division of Housing
and Community Renewal as the supervising agency of any residential envi-
ronment to determine disclosure requirements for investors and purchas-
ers of shares. This exemption will ensure that residential environments
that are formed under the private housing finance law are not impeded by
the strict filing requirements of the Martin Act given the roles of the
division of housing and community renewal as supervising agency of resi-
dential environments formed under the private housing finance law devel-
opment fund corporation.
LEGISLATIVE HISTORY:
2023-24: S.5028-A
2021-22: S.8521-C
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
This act shall take effect immediately.
Statutes affected: S4908: 352-g general business law
S4908A: 352-g general business law