A 8351: Establishes the right of non-speaking developmentally and otherwise disabled individuals to advocate for themselves in educational, medical, legal, and other decisions by using alternative forms of communication, such as spelling boards, typing-based communication, sign language, and speech-generating devices.

  
  STATE OF NEW YORK ________________________________________________________________________ 8351 2025-2026 Regular Sessions  IN ASSEMBLY May 13, 2025 ___________ Introduced by M. of A. SANTABARBARA -- read once and referred to the Committee on People with Disabilities AN ACT to amend the mental hygiene law, the education law and the surro- gate's court procedure act, in relation to establishing the right of non-speaking developmentally and otherwise disabled persons to advo- cate for themselves in educational, medical, legal, and other deci- sions by using alternative forms of communication The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraphs 12 and 13 of subdivision (a) of section 33.02 of 2 the mental hygiene law, as amended by chapter 306 of the laws of 1995, 3 are amended and a new paragraph 14 is added to read as follows: 4 12. bring any questions or complaints, including complaints regarding 5 any orders limiting such residents' rights, to the facility director, 6 the mental hygiene legal service, the board of visitors if applicable, 7 and the commission on quality of care for the mentally disabled; [and] 8 13. authorize those family members and other adults who will be given 9 priority to visit consistent with the patient's ability to receive visi- 10 tors; and 11 14. rights enumerated in section 13.45 of this chapter. 12 § 2. The mental hygiene law is amended by adding a new section 13.45 13 to read as follows: 14 § 13.45 Communication rights for individuals with disabilities. 15 In order to ensure that each person with a disability is able to lead 16 a life of dignity, the commissioner shall include in rules and regu- 17 lations a statement of the rights of such persons to communicate in 18 their preferred manner and the obligations of all staff and providers 19 under this section, which shall include, but not be limited to: 20 (a) the right to utilize any validated communication method that meets 21 the needs of individuals with disabilities, including but not limited 22 to: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11950-01-5 
 A. 8351 2 1 (1) augmentative and alternative communication (AAC) techniques and 2 devices; 3 (2) independent use of spelling board, letterboards, and independent 4 typing-based communication; 5 (3) sign language and non-verbal gestural systems; and 6 (4) speech-generating devices or any other validated assistive tech- 7 nology; 8 (b) the right to have such individual's communication method recog- 9 nized and supported in schools, community residences, and public insti- 10 tutions; 11 (c) the right to speech therapy and communication support by duly 12 licensed professionals without arbitrary restrictions; 13 (d) the right to have at least one trained staff member available in 14 every facility or program to support individuals who require specialized 15 communication assistance; 16 (e) the right to receive appropriate communication supports from 17 trained staff, including direct support professionals (DSPs), educators, 18 and healthcare providers; 19 (f) the right to experience no restrictions or bans on an individual 20 with disabilities' validated communication method; and 21 (g) the right to not have the use of alternative methods of communi- 22 cation used to determine if such person is competent for purposes of 23 surrogate decision-making for medical care and treatment, appointment of 24 a guardian, or placement in adult protective services. 25 § 3. Subdivision (c) of section 80.03 of the mental hygiene law, as 26 added by chapter 354 of the laws of 1985, is amended to read as follows: 27 (c) "Lack of ability to consent to or refuse major medical treatment" 28 means the patient cannot adequately understand and appreciate the nature 29 and consequences of a proposed major medical treatment, including the 30 benefits and risks of and alternatives to such treatment, and cannot 31 thereby reach an informed decision to consent to or to refuse such 32 treatment in a knowing and voluntary manner that promotes the patient's 33 well-being. A patient's inability or difficulty speaking due to devel- 34 opmental or other disability shall not itself determine that a patient 35 is unable to consent, and all providers of services shall respect the 36 communication rights of such individuals pursuant to section 13.45 of 37 this chapter. 38 § 4. Paragraph 2 of subdivision (d) of section 81.02 of the mental 39 hygiene law, as added by chapter 698 of the laws of 1992, is amended and 40 a new subdivision (e) is added to read as follows: 41 2. understanding and appreciation of the nature and consequences of 42 [his or her] such person's functional limitations. 43 (e) The determination of incapacity shall not be based on an individ- 44 ual's inability or difficulty speaking due to developmental or other 45 disability, and the court shall respect the communication rights of such 46 individuals pursuant to section 13.45 of this chapter. 47 § 5. Subdivision (d) of section 82.03 of the mental hygiene law, as 48 added by chapter 481 of the laws of 2022, is amended to read as follows: 49 (d) The manner in which an adult communicates with others shall not 50 constitute evidence of incapacity, and the court shall respect the 51 communication rights of such individuals pursuant to section 13.45 of 52 this chapter. 53 § 6. Subdivision 2 of section 4401 of the education law is amended by 54 adding a new paragraph o to read as follows: 55 o. Augmentative and alternative communication (AAC) methods, includ- 56 ing, but not limited to, spelling board and other letterboard-based 
 A. 8351 3 1 communication methods, pursuant to section 13.45 of the mental hygiene 2 law. 3 § 7. Paragraph a of subdivision 2 of section 4402 of the education 4 law, as amended by section 16-a of part A of chapter 56 of the laws of 5 2014, is amended to read as follows: 6 a. The board of education or trustees of each school district shall 7 [be required to] furnish suitable educational opportunities for students 8 with disabilities by one or more of the special services or programs 9 listed in subdivision two of section forty-four hundred one of this 10 article. The need of the individual child shall determine which of such 11 services shall be rendered. Each district shall provide to the maximum 12 extent appropriate such services in a manner which enables students with 13 disabilities to participate in regular education services when appropri- 14 ate. Such services or programs shall be furnished between the months of 15 September and June of each year, except that for the nineteen hundred 16 eighty-seven--eighty-eight school year and thereafter, with respect to 17 the students whose disabilities are severe enough to exhibit the need 18 for a structured learning environment of twelve months duration to main- 19 tain developmental levels, the board of education or trustees of each 20 school district upon the recommendation of the committee on special 21 education shall also provide, either directly or by contract, for the 22 provision of special services and programs as defined in section forty- 23 four hundred one of this article during the months of July and August as 24 contained in the individualized education program for each eligible 25 student, and with prior approval by the commissioner if required; 26 provided that a student with a disability who is eligible for services, 27 including services during the months of July and August, pursuant to 28 section forty-four hundred ten of this article shall not be eligible to 29 receive services pursuant to this paragraph during the months of July 30 and August. 31 § 8. Section 1750 and section 1750-a of the surrogate's court proce- 32 dure act, as amended by chapter 198 of the laws of 2016, are amended to 33 read as follows: 34 § 1750. Guardianship of persons who are intellectually disabled 35 When it shall appear to the satisfaction of the court that a person is 36 a person who is intellectually disabled, the court is authorized to 37 appoint a guardian of the person or of the property or of both if such 38 appointment of a guardian or guardians is in the best interest of the 39 person who is intellectually disabled. Such appointment shall be made 40 pursuant to the provisions of this article, provided however that the 41 provisions of section seventeen hundred fifty-a of this article shall 42 not apply to the appointment of a guardian or guardians of a person who 43 is intellectually disabled. 44 1. For the purposes of this article, a person who is intellectually 45 disabled is a person who has been certified by one licensed physician 46 and one licensed psychologist, or by two licensed physicians at least 47 one of whom is familiar with or has professional knowledge in the care 48 and treatment of persons with an intellectual disability, having quali- 49 fications to make such certification, as being incapable to manage [him 50 or herself] themselves and/or [his or her] their own affairs by reason 51 of intellectual disability and that such condition is permanent in 52 nature or likely to continue indefinitely. 53 2. Every such certification pursuant to subdivision one of this 54 section, made on or after the effective date of this subdivision, shall 55 include a specific determination by such physician and psychologist, or 56 by such physicians, as to whether the person who is intellectually disa- 
 A. 8351 4 1 bled has the capacity to make health care decisions, as defined by 2 subdivision three of section twenty-nine hundred eighty of the public 3 health law, for [himself or herself] themself. A determination that the 4 person who is intellectually disabled has the capacity to make health 5 care decisions shall not preclude the appointment of a guardian pursuant 6 to this section to make other decisions on behalf of the person who is 7 intellectually disabled. The absence of this determination in the case 8 of guardians appointed prior to the effective date of this subdivision 9 shall not preclude such guardians from making health care decisions. 10 3. The determination of guardianship shall not be based solely on an 11 individual's inability or difficulty speaking due to developmental or 12 other disability, and the court shall respect the communication rights 13 of such individuals pursuant to section 13.45 of the mental hygiene law. 14 § 1750-a. Guardianship of persons who are developmentally disabled 15 1. When it shall appear to the satisfaction of the court that a person 16 is a person who is developmentally disabled, the court is authorized to 17 appoint a guardian of the person or of the property or of both if such 18 appointment of a guardian or guardians is in the best interest of the 19 person who is developmentally disabled. Such appointments shall be made 20 pursuant to the provisions of this article, provided however that the 21 provisions of section seventeen hundred fifty of this article shall not 22 apply to the appointment of a guardian or guardians of a person who is 23 developmentally disabled. For the purposes of this article, a person 24 who is developmentally disabled is a person who has been certified by 25 one licensed physician and one licensed psychologist, or by two licensed 26 physicians at least one of whom is familiar with or has professional 27 knowledge in the care and treatment of persons with developmental disa- 28 bilities, having qualifications to make such certification, as having an 29 impaired ability to understand and appreciate the nature and conse- 30 quences of decisions which result in such person being incapable of 31 managing [himself or herself] themselves and/or [his or her] their own 32 affairs by reason of developmental disability and that such condition is 33 permanent in nature or likely to continue indefinitely, and whose disa- 34 bility: 35 (a) is attributable to cerebral palsy, epilepsy, neurological impair- 36 ment, autism or traumatic head injury; 37 (b) is attributable to any other condition of a person found to be 38 closely related to intellectual disability because such condition 39 results in similar impairment of general intellectual functioning or 40 adaptive behavior to that of persons with intellectual disabilities; or 41 (c) is attributable to dyslexia resulting from a disability described 42 in this subdivision [one] or subdivision two of this section or from 43 intellectual disability; and 44 (d) originates before such person attains age twenty-two, provided, 45 however, that no such age of origination shall apply for the purposes of 46 this article to a person with traumatic head injury. 47 2. Notwithstanding any provision of law to the contrary, for the 48 purposes of subdivision two of section seventeen hundred fifty and 49 section seventeen hundred fifty-b of this article, "a person who is 50 intellectually disabled and [his or her] such person's guardian" shall 51 also mean a person and [his or her] such person's guardian appointed 52 pursuant to this section; provided that such person has been certified 53 by the physicians and/or psychologists, specified in subdivision one of 54 this section, as (i) having an intellectual disability, or (ii) having a 55 developmental disability, as defined in section 1.03 of the mental 56 hygiene law, which (A) includes intellectual disability, or (B) results 
 A. 8351 5 1 in a similar impairment of general intellectual functioning or adaptive 2 behavior so that such person is incapable of managing [himself or 3 herself] themselves, and/or [his or her] their own affairs by reason of 4 such developmental disability. 5 3. The determination of guardianship shall not be based solely on an 6 individual's inability or difficulty speaking due to developmental or 7 other disability, and the court shall respect the communication rights 8 of such individuals pursuant to section 13.45 of the mental hygiene law. 9 § 9. This act shall take effect immediately.