Enacts the "Equal Access to Health and Human Services for Limited English Speaking Individuals" act; directs certain state agencies to provide language assistance services for persons seeking family assistance, health or labor services; requires record keeping; requires free translation for 22 languages.
STATE OF NEW YORK
________________________________________________________________________
2281
2009-2010 Regular Sessions
IN SENATE
February 17, 2009
___________
Introduced by Sens. PARKER, DUANE, HASSELL-THOMPSON, ONORATO, SAVINO --
read twice and ordered printed, and when printed to be committed to
the Committee on Finance
AN ACT to amend the executive law, in relation to ensuring equal access
to health and human services for limited English speaking individuals
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Declaration of legislative findings and intent. Title VI of
2 the civil rights act of 1964 provides in pertinent part that "no person
3 in the United States shall on the ground of race, color or national
4 origin, be excluded from participation in, be denied the benefits of, or
5 be subjected to discrimination under any program or activity receiving
6 federal assistance." The United States department of justice and the
7 department of health and human services have stated that failure to
8 provide language assistance to limited English speaking individuals
9 seeking assistance in federally funded, state supervised or administered
10 programs amounts to a violation of Title VI by discriminating against
11 such individuals based upon their national origin.
12 It is and has been the policy of the state of New York to oppose all
13 forms of discrimination, particularly when it relates to the provision
14 of state services, or locally provided services under state supervision.
15 However, the department of health and human services office of civil
16 rights, the office responsible for enforcing Title VI in department of
17 health and human services programs, found that the New York state
18 departments of temporary and disability assistance, the New York state
19 department of health, the New York City human resources administration,
20 and the departments of social services in Nassau and Suffolk counties
21 were in violation of Title VI based upon the state and counties' failure
22 to provide interpretation services for limited English proficient indi-
23 viduals. Specifically, the office of civil rights found that limited
24 English proficient clients seeking and/or applying for subsistence bene-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02352-01-9
S. 2281 2
1 fits such as food stamps and public assistance for children and Medicaid
2 benefits were routinely unable to access such benefits due to their
3 inability to speak English.
4 A legislative hearing on immigrant child welfare issues also found
5 that the lack of interpreters in child welfare cases resulted in chil-
6 dren in families who were limited English proficient were unnecessarily
7 removed from their parents. In addition, limited English proficient
8 residents of New York have been unable to access unemployment and other
9 services from the department of labor due to the lack of translated
10 materials and interpreters. The New York equal access to health and
11 human services for limited English speaking individuals act serves a
12 twofold purpose: first, the act will ensure that the state is in
13 compliance with federal law in ensuring access to benefits and opportu-
14 nities to participate in any program or activity receiving federal
15 assistance; second, and more importantly, the act will ensure that all
16 those in need of health and human services receive them, and that no one
17 attempting to access such services will be discriminated against based
18 upon the language they speak.
19 § 2. The executive law is amended by adding a new article 14-A to read
20 as follows:
21 ARTICLE 14-A
22 EQUAL ACCESS TO HEALTH AND HUMAN SERVICES FOR LIMITED ENGLISH
23 SPEAKING INDIVIDUALS
24 Section 275. Short title.
25 276. Definitions.
26 277. Agencies.
27 278. Language assistance services.
28 279. Notices.
29 280. Records.
30 281. Language assistance services required.
31 282. Screening and training.
32 283. Miscellaneous.
33 284. Comptroller audits.
34 285. Civil cause of action.
35 286. Limitations.
36 287. Rules.
37 288. Severability.
38 § 275. Short title. This act shall be known and may be cited as the
39 "Equal Access to Health and Human Services for Limited English Speaking
40 Individuals Act".
41 § 276. Definitions. When used in this article, the following terms
42 shall have the following meanings:
43 1. "Agency" shall mean those entities, including any part, subdivi-
44 sion, field office or satellite facility, including offices operated by
45 county governments, required to provide language assistance services
46 pursuant to this article.
47 2. "Agency contractor" shall mean any individual, sole proprietorship,
48 partnership, community based organization, joint venture or corporate
49 entity, including any part, subdivision, field office or satellite
50 facility, which enters into a contract or contracts with an agency to
51 provide agency-related services to the public, and which receives a
52 total of one million dollars or more in payment for such services on an
53 annualized basis pursuant to the terms of such contract or contracts.
S. 2281 3
1 3. "Bilingual personnel" shall mean agency or agency contractor
2 employees, excluding participants in work experience programs, who
3 provide language assistance services in addition to their duties.
4 4. "Contract" shall mean any written agreement, purchase order or
5 instrument whereby the agency is committed to expend or does expend
6 funds in return for work, labor, services, or any combination of the
7 foregoing.
8 5. "Documents" shall mean written material, whether electronic or
9 printed, including but not limited to, forms, applications, notices and
10 correspondence, that require a response or affect benefits levels and/or
11 services.
12 6. "Interpreter personnel" shall mean agency or agency contractor
13 employees whose sole responsibility is to provide language assistance
14 services. Such definition shall not include Work Experience Program
15 participants.
16 7. "Interpretation services" shall mean oral, contemporaneous inter-
17 pretation of oral conversations.
18 8. "Language assistance services" shall mean Level I and Level II
19 language assistance services as defined in this section.
20 9. "Level I language assistance services" shall mean interpretation
21 services and translation services provided by bilingual personnel or
22 interpreter personnel to limited English proficient individuals that
23 ensures their ability to communicate effectively with agency or agency
24 contractor personnel, access benefits and services, participate equally
25 in all substantive programs and understand documents; provided, however,
26 that such services may not be provided by volunteers, relatives, spouses
27 or domestic partners of an individual in need of such services, or by a
28 client of the agency or agency contractor from which such individual is
29 seeking assistance.
30 10. "Level II language assistance services" shall mean language
31 assistance services provided to limited English proficient individuals
32 by means other than interpreter personnel or bilingual personnel that
33 ensures their ability to communicate effectively with agency or agency
34 contractor personnel, access benefits and services, participate equally
35 in all substantive programs and understand documents; provided, however,
36 that such services may not be provided by volunteers, relatives, spouses
37 or domestic partners of an individual in need of such services, or by a
38 client of the agency or agency contractor from which such individual is
39 seeking assistance.
40 11. "Limited English proficient individual" shall mean an individual
41 who identifies as being, or is evidently, unable to speak, read or write
42 the English language at a level that permits him or her to interact
43 effectively with agency or agency contractor personnel.
44 12. "Primary language" shall mean the language chosen by a limited
45 English proficient individual as the language to be used in communicat-
46 ing with such individual.
47 13. "Primary language group" shall mean a group of individuals sharing
48 the same primary language.
49 14. "Translation services" shall mean the translation of written
50 matter either orally or in writing.
51 § 277. Agencies. The following entities shall provide language assist-
52 ance services for services directly provided by such agency and shall be
53 responsible for ensuring that county agencies and agency contractors
54 providing services under state supervision provide language assistance
55 services, as required under this article: the New York state department
S. 2281 4
1 of family assistance, the New York state department of health, and the
2 New York state department of labor.
3 § 278. Language assistance services. 1. Each agency and agency
4 contractor shall provide language assistance services as required under
5 this article free of charge to limited English proficient individuals.
6 2. Agency contractors shall provide language assistance services as
7 required under this article for programs and/or services offered pursu-
8 ant to a contract or contracts with an agency.
9 § 279. Notices. 1. Upon initial contact, whether by telephone or in
10 person, with an individual seeking benefits and/or services offered by
11 an agency or agency contractor, such agency or agency contractor shall
12 notify such individual of the right to free language assistance
13 services. Immediately following such notification, the agency or agency
14 contractor shall determine the primary language of such individual. Such
15 determination shall be made by asking the individual to indicate his or
16 her primary language. If it is determined that such individual's primary
17 language is not English, then upon such determination the agency or
18 agency contractor shall inform such individual in his or her primary
19 language of the right to free language assistance services.
20 2. Within one hundred eighty days after the effective date of this
21 article, each agency and agency contractor shall determine the primary
22 language of each individual currently receiving benefits and/or services
23 provided by such agencies and agency contractors. If it is determined
24 that any such individual's primary language is not English, then upon
25 such determination the agency or agency contractor shall inform such
26 individual in his or her primary language of the right to free language
27 assistance services.
28 3. Each agency and agency contractor shall post conspicuous signs in
29 Albanian, Arabic, Bengali, Cantonese, Creole, French, German, Greek,
30 Hebrew, Hindi, Italian, Khmer, Korean, Mandarin, Polish, Punjabi (Gurmu-
31 khi), Serbo-Croatian, Spanish, Russian, Urdu, Vietnamese, and Yiddish at
32 all agency and agency contractor offices in which services are provided
33 to the public informing limited English proficient individuals of their
34 right to free language assistance services.
35 § 280. Records. Each agency and agency contractor shall maintain a
36 record of the primary language of individuals seeking or receiving agen-
37 cy or agency contractor services. Primary language determinations
38 regarding individuals seeking agency or agency contractor services shall
39 be recorded whether or not such individual actually obtains such
40 services.
41 § 281. Language assistance services required. 1. If, on an annual
42 basis, one hundred or more limited English proficient individuals
43 belonging to the same primary language group seek or receive services or
44 benefits at an agency or agency contractor, then such agency or agency
45 contractor shall provide Level I language assistance services immediate-
46 ly in all interactions with a member of such primary language group,
47 whether such interaction is by telephone or in person, and all corre-
48 spondence from such agency or agency contractor to any member of such
49 primary language group shall be written in such member's primary
50 language.
51 2. If, on an annual basis, between at least twenty-five but no more
52 than ninety-nine limited English proficient individuals belonging to the
53 same primary language group seek or receive services or benefits at an
54 agency or agency contractor, then such agency or agency contractor shall
55 provide Level I language assistance services within twenty-four hours of
56 a request for such services by a member of such primary language group.
S. 2281 5
1 3. If, on an annual basis, fewer than twenty-five limited English
2 proficient individuals belonging to the same primary language group seek
3 or receive services or benefits at an agency or agency contractor, then
4 such agency or agency contractor shall provide Level I language assist-
5 ance services or Level II language assistance services within twenty-
6 four hours of a request for language assistance by a member of such
7 primary language group.
8 4. During the first ninety days after the effective date of this arti-
9 cle, each agency and agency contractor shall determine the number of
10 limited English proficient individuals for each primary language group
11 seeking and/or receiving services from such agency or agency contractor
12 during such period, and shall multiply each such number by four to
13 determine a projected annual number of limited English proficient indi-
14 viduals in need of language assistance services. The result of such
15 calculation shall determine the initial level of language assistance
16 services required under this section. The determination of the level of
17 language assistance services required under this article shall be made
18 annually and based on annual data thereafter.
19 5. Where an application or form requires completion in English by a
20 limited English proficient individual for submission to a state authori-
21 ty, the agency or agency contractor shall provide oral translation of
22 such application or form as well as certification by the limited English
23 proficient individual that the form was translated and completed by an
24 interpreter.
25 6. English versions of all documents shall include in ten point type
26 in Albanian, Arabic, Bengali, Cantonese, Creole, French, German, Greek,
27 Hebrew, Hindi, Italian, Khmer, Korean, Mandarin, Polish, Punjabi (Gurmu-
28 khi), Serbo-Croatian, Spanish, Russian, Urdu, Vietnamese, and Yiddish
29 the following statement: "IMPORTANT: This document contains important
30 information about your benefits. We will translate this document for you
31 free of charge." Following such statement shall be the name, telephone
32 number and address of the agency or agency contractor to contact to
33 request free translation of the document.
34 § 282. Screening and training. 1. Before bilingual personnel or inter-
35 preter personnel may provide language assistance services, such person-
36 nel must be screened by the agency or agency contractor employing such
37 personnel to ensure that they are capable of providing such services
38 effectively. In addition, each agency and agency contractor shall
39 provide annual training for such personnel to ensure that such personnel
40 are providing language assistance services effectively.
41 2. Each agency or agency contractor providing Level II language
42 assistance services shall ensure that such services are effective.
43 § 283. Miscellaneous. 1. Nothing in this section shall preclude an
44 agency or agency contractor from providing language services in addition
45 to those required under this article.
46 2. Language assistance services required pursuant to this article to
47 be provided by an agency shall be performed by employees of such agency.
48 3. If an agency contractor enters into an agreement with an entity to
49 provide services to the public that such agency contractor is required
50 to provide under a contract with an agency, then such entity shall be
51 considered an agency contractor for purposes of this article and shall
52 provide language assistance services as required in this article.
53 4. This article shall not apply to any contract with an agency
54 contractor entered into prior to the effective date of this article,
55 except that renewal, amendment or modification of such contract occur-
S. 2281 6
1 ring on or after such effective date shall be subject to the provisions
2 of this article.
3 § 284. Comptroller audits. 1. The comptroller shall conduct annual
4 audits of the agencies and agency contractors required to provide
5 language assistance services pursuant to this article. Such audits
6 shall generally determine the effectiveness of the language assistance
7 services provided by each agency and agency contractor. Specifically,
8 such audits shall include, but not be limited to, the following informa-
9 tion: (a) The number of requests for language assistance services,
10 disaggregated by agency and agency contractor, type of language assist-
11 ance requested and primary language;
12 (b) The number of limited English proficient individuals served,
13 disaggregated by agency and agency contractor, type of language assist-
14 ance requested and primary language;
15 (c) The number of bilingual personnel and the number of interpreter
16 personnel, disaggregated by agency, agency contractor and language
17 translated by such personnel;
18 (d) The average length of time to provide language assistance services
19 to limited English proficient individuals, disaggregated by agency,
20 agency contractor and primary language;
21 (e) Whether primary language determinations are properly recorded,
22 disaggregated by agency and agency contractor; and
23 (f) Whether, as determined through a random sampling of translated
24 documents, documents have been translated properly and in a timely
25 manner and sent to the appropriate party, disaggregated by agency and
26 agency contractor.
27 2. Whenever possible, the results of such audits shall be verified
28 through direct contact with a statistically significant sample of agency
29 and/or agency contractor clients.
30 § 285. Civil cause of action. Except as otherwise provided by law, any
31 person claiming to be injured by the failure of an agency or agency
32 contractor to provide language assistance services as required under
33 this article, shall have a cause of action against such agency or agency
34 contractor in any court of competent jurisdiction for any or all of the
35 following relief: (a) compensatory and punitive damages;
36 (b) injunctive and declaratory relief;
37 (c) attorneys' fees and costs; and
38 (d) such other relief as a court may deem appropriate.
39 § 286. Limitations. A civil action under this article must be
40 commenced within one year after the alleged violation of the require-
41 ments of this article. If, however, due to injury or disability result-
42 ing from an act or acts giving rise to a cause of action under this
43 article, or due to infancy as defined in the civil practice law and
44 rules, a person entitled to commence an action under this article is
45 unable to do so at the time such cause of action accrues, then the time
46 within which the action must be commenced shall be extended to one year
47 after the inability to commence the action ceases.
48 § 287. Rules. Each agency shall promulgate such rules as are necessary
49 for the purposes of implementing and carrying out the provisions of this
50 article. Such rules shall be applicable to the agency that promulgated
51 the rules as well as to agency contractors associated with such agency.
52 § 288. Severability. If any section, subdivision, sentence, clause,
53 phrase or other portion of this article is, for any reason, declared
54 unconstitutional or invalid, in whole or in part, by any court of compe-
55 tent jurisdiction such portion shall be deemed severable, and such
56 unconstitutionality or invalidity shall not affect the validity of the
S. 2281 7
1 remaining portions of this law, which remaining portions shall continue
2 in full force and effect.
3 § 3. This act shall take effect on the one hundred eightieth day after
4 it shall have become a law.
