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A09492 Summary:

BILL NOA09492C
 
SAME ASSAME AS S08521-C
 
SPONSORAbinanti
 
COSPNSRStirpe, Hunter, Clark, Magnarelli, Darling, Burdick, Jensen, Byrnes, McMahon, Griffin
 
MLTSPNSR
 
Add §16.38, Ment Hyg L; amd §352-g, Gen Bus L
 
Relates to the creation of an innovative housing initiative for persons with a developmental disability who wish and are able to safely reside in such a setting; directs the division of housing and community renewal to establish guidelines for the dissemination of disclosure materials for the offer and sale of interests in residential environments formed under the innovative housing initiative; creates 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.
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A09492 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A9492C
 
SPONSOR: Abinanti
  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 OR GENERAL IDEA: This legislation would 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 shall 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 is the effective date.   DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION: The amended version adds additional residential housing opportunities; and establishes and clarifies criteria for the Office for People with Developmental Disabilities to follow for the innovative housing initi- atives. In addition, the bill provides that a residential environment may be formed as a housing development fund corporation, cooperative interest in realty and condominium and the housing development fund corporation shall establish guidelines for the disclosure of material information to prospective shareholders.   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 legislation will do just that. This legislation would provide more opportunities to provide independent 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 prox- imity in a safe, healthy and integrated residential environment, espe- cially 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 legislation also exempts 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.   LEGISLATIVE HISTORY: New Bill   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None   EFFECTIVE DATE: This act shall take effect immediately.
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