STATE OF NEW YORK ________________________________________________________________________ 4446 2021-2022 Regular Sessions IN SENATE February 4, 2021 ___________ Introduced by Sens. PARKER, COMRIE, RIVERA -- 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- 25 fits such as food stamps and public assistance for children and Medicaid 26 benefits were routinely unable to access such benefits due to their 27 inability to speak English. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD06016-01-1S. 4446 2 1 A legislative hearing on immigrant child welfare issues also found 2 that the lack of interpreters in child welfare cases resulted in chil- 3 dren in families who were limited English proficient were unnecessarily 4 removed from their parents. In addition, limited English proficient 5 residents of New York have been unable to access unemployment and other 6 services from the department of labor due to the lack of translated 7 materials and interpreters. The New York equal access to health and 8 human services for limited English speaking individuals act serves a 9 twofold purpose: first, the act will ensure that the state is in 10 compliance with federal law in ensuring access to benefits and opportu- 11 nities to participate in any program or activity receiving federal 12 assistance; second, and more importantly, the act will ensure that all 13 those in need of health and human services receive them, and that no one 14 attempting to access such services will be discriminated against based 15 upon the language they speak. 16 § 2. The executive law is amended by adding a new article 14-A to read 17 as follows: 18 ARTICLE 14-A 19 EQUAL ACCESS TO HEALTH AND HUMAN SERVICES FOR LIMITED ENGLISH 20 SPEAKING INDIVIDUALS 21 Section 275. Short title. 22 276. Definitions. 23 277. Agencies. 24 278. Language assistance services. 25 279. Notices. 26 280. Records. 27 281. Language assistance services required. 28 282. Screening and training. 29 283. Miscellaneous. 30 284. Comptroller audits. 31 285. Civil cause of action. 32 286. Limitations. 33 287. Rules. 34 288. Severability. 35 § 275. Short title. This article shall be known and may be cited as 36 the "Equal Access to Health and Human Services for Limited English 37 Speaking Individuals Act". 38 § 276. Definitions. When used in this article, the following terms 39 shall have the following meanings: 40 1. "Agency" shall mean those entities, including any part, subdivi- 41 sion, field office or satellite facility, including offices operated by 42 county governments, required to provide language assistance services 43 pursuant to this article. 44 2. "Agency contractor" shall mean any individual, sole proprietorship, 45 partnership, community based organization, joint venture or corporate 46 entity, including any part, subdivision, field office or satellite 47 facility, which enters into a contract or contracts with an agency to 48 provide agency-related services to the public, and which receives a 49 total of one million dollars or more in payment for such services on an 50 annualized basis pursuant to the terms of such contract or contracts. 51 3. "Bilingual personnel" shall mean agency or agency contractor 52 employees, excluding participants in work experience programs, who 53 provide language assistance services in addition to their duties. 54 4. "Contract" shall mean any written agreement, purchase order or 55 instrument whereby the agency is committed to expend or does expendS. 4446 3 1 funds in return for work, labor, services, or any combination of the 2 foregoing. 3 5. "Documents" shall mean written material, whether electronic or 4 printed, including but not limited to, forms, applications, notices and 5 correspondence, that require a response or affect benefits levels and/or 6 services. 7 6. "Interpreter personnel" shall mean agency or agency contractor 8 employees whose sole responsibility is to provide language assistance 9 services. Such definition shall not include Work Experience Program 10 participants. 11 7. "Interpretation services" shall mean oral, contemporaneous inter- 12 pretation of oral conversations. 13 8. "Language assistance services" shall mean Level I and Level II 14 language assistance services as defined in this section. 15 9. "Level I language assistance services" shall mean interpretation 16 services and translation services provided by bilingual personnel or 17 interpreter personnel to limited English proficient individuals that 18 ensures their ability to communicate effectively with agency or agency 19 contractor personnel, access benefits and services, participate equally 20 in all substantive programs and understand documents; provided, however, 21 that such services may not be provided by volunteers, relatives, spouses 22 or domestic partners of an individual in need of such services, or by a 23 client of the agency or agency contractor from which such individual is 24 seeking assistance. 25 10. "Level II language assistance services" shall mean language 26 assistance services provided to limited English proficient individuals 27 by means other than interpreter personnel or bilingual personnel that 28 ensures their ability to communicate effectively with agency or agency 29 contractor personnel, access benefits and services, participate equally 30 in all substantive programs and understand documents; provided, however, 31 that such services may not be provided by volunteers, relatives, spouses 32 or domestic partners of an individual in need of such services, or by a 33 client of the agency or agency contractor from which such individual is 34 seeking assistance. 35 11. "Limited English proficient individual" shall mean an individual 36 who identifies as being, or is evidently, unable to speak, read or write 37 the English language at a level that permits him or her to interact 38 effectively with agency or agency contractor personnel. 39 12. "Primary language" shall mean the language chosen by a limited 40 English proficient individual as the language to be used in communicat- 41 ing with such individual. 42 13. "Primary language group" shall mean a group of individuals sharing 43 the same primary language. 44 14. "Translation services" shall mean the translation of written 45 matter either orally or in writing. 46 § 277. Agencies. The following entities shall provide language assist- 47 ance services for services directly provided by such agency and shall be 48 responsible for ensuring that county agencies and agency contractors 49 providing services under state supervision provide language assistance 50 services, as required under this article: the New York state department 51 of family assistance, the New York state department of health, and the 52 New York state department of labor. 53 § 278. Language assistance services. 1. Each agency and agency 54 contractor shall provide language assistance services as required under 55 this article free of charge to limited English proficient individuals.S. 4446 4 1 2. Agency contractors shall provide language assistance services as 2 required under this article for programs and/or services offered pursu- 3 ant to a contract or contracts with an agency. 4 § 279. Notices. 1. Upon initial contact, whether by telephone or in 5 person, with an individual seeking benefits and/or services offered by 6 an agency or agency contractor, such agency or agency contractor shall 7 notify such individual of the right to free language assistance 8 services. Immediately following such notification, the agency or agency 9 contractor shall determine the primary language of such individual. Such 10 determination shall be made by asking the individual to indicate his or 11 her primary language. If it is determined that such individual's primary 12 language is not English, then upon such determination the agency or 13 agency contractor shall inform such individual in his or her primary 14 language of the right to free language assistance services. 15 2. Within one hundred eighty days after the effective date of this 16 article, each agency and agency contractor shall determine the primary 17 language of each individual currently receiving benefits and/or services 18 provided by such agencies and agency contractors. If it is determined 19 that any such individual's primary language is not English, then upon 20 such determination the agency or agency contractor shall inform such 21 individual in his or her primary language of the right to free language 22 assistance services. 23 3. Each agency and agency contractor shall post conspicuous signs in 24 Albanian, Arabic, Bengali, Cantonese, Creole, French, German, Greek, 25 Hebrew, Hindi, Italian, Khmer, Korean, Mandarin, Polish, Punjabi (Gurmu- 26 khi), Serbo-Croatian, Spanish, Russian, Urdu, Vietnamese, and Yiddish at 27 all agency and agency contractor offices in which services are provided 28 to the public informing limited English proficient individuals of their 29 right to free language assistance services. 30 § 280. Records. Each agency and agency contractor shall maintain a 31 record of the primary language of individuals seeking or receiving agen- 32 cy or agency contractor services. Primary language determinations 33 regarding individuals seeking agency or agency contractor services shall 34 be recorded whether or not such individual actually obtains such 35 services. 36 § 281. Language assistance services required. 1. If, on an annual 37 basis, one hundred or more limited English proficient individuals 38 belonging to the same primary language group seek or receive services or 39 benefits at an agency or agency contractor, then such agency or agency 40 contractor shall provide Level I language assistance services immediate- 41 ly in all interactions with a member of such primary language group, 42 whether such interaction is by telephone or in person, and all corre- 43 spondence from such agency or agency contractor to any member of such 44 primary language group shall be written in such member's primary 45 language. 46 2. If, on an annual basis, between at least twenty-five but no more 47 than ninety-nine limited English proficient individuals belonging to the 48 same primary language group seek or receive services or benefits at an 49 agency or agency contractor, then such agency or agency contractor shall 50 provide Level I language assistance services within twenty-four hours of 51 a request for such services by a member of such primary language group. 52 3. If, on an annual basis, fewer than twenty-five limited English 53 proficient individuals belonging to the same primary language group seek 54 or receive services or benefits at an agency or agency contractor, then 55 such agency or agency contractor shall provide Level I language assist- 56 ance services or Level II language assistance services within twenty-S. 4446 5 1 four hours of a request for language assistance by a member of such 2 primary language group. 3 4. During the first ninety days after the effective date of this arti- 4 cle, each agency and agency contractor shall determine the number of 5 limited English proficient individuals for each primary language group 6 seeking and/or receiving services from such agency or agency contractor 7 during such period, and shall multiply each such number by four to 8 determine a projected annual number of limited English proficient indi- 9 viduals in need of language assistance services. The result of such 10 calculation shall determine the initial level of language assistance 11 services required under this section. The determination of the level of 12 language assistance services required under this article shall be made 13 annually and based on annual data thereafter. 14 5. Where an application or form requires completion in English by a 15 limited English proficient individual for submission to a state authori- 16 ty, the agency or agency contractor shall provide oral translation of 17 such application or form as well as certification by the limited English 18 proficient individual that the form was translated and completed by an 19 interpreter. 20 6. English versions of all documents shall include in ten point type 21 in Albanian, Arabic, Bengali, Cantonese, Creole, French, German, Greek, 22 Hebrew, Hindi, Italian, Khmer, Korean, Mandarin, Polish, Punjabi (Gurmu- 23 khi), Serbo-Croatian, Spanish, Russian, Urdu, Vietnamese, and Yiddish 24 the following statement: "IMPORTANT: This document contains important 25 information about your benefits. We will translate this document for you 26 free of charge." Following such statement shall be the name, telephone 27 number and address of the agency or agency contractor to contact to 28 request free translation of the document. 29 § 282. Screening and training. 1. Before bilingual personnel or inter- 30 preter personnel may provide language assistance services, such person- 31 nel must be screened by the agency or agency contractor employing such 32 personnel to ensure that they are capable of providing such services 33 effectively. In addition, each agency and agency contractor shall 34 provide annual training for such personnel to ensure that such personnel 35 are providing language assistance services effectively. 36 2. Each agency or agency contractor providing Level II language 37 assistance services shall ensure that such services are effective. 38 § 283. Miscellaneous. 1. Nothing in this section shall preclude an 39 agency or agency contractor from providing language services in addition 40 to those required under this article. 41 2. Language assistance services required pursuant to this article to 42 be provided by an agency shall be performed by employees of such agency. 43 3. If an agency contractor enters into an agreement with an entity to 44 provide services to the public that such agency contractor is required 45 to provide under a contract with an agency, then such entity shall be 46 considered an agency contractor for purposes of this article and shall 47 provide language assistance services as required in this article. 48 4. This article shall not apply to any contract with an agency 49 contractor entered into prior to the effective date of this article, 50 except that renewal, amendment or modification of such contract occur- 51 ring on or after such effective date shall be subject to the provisions 52 of this article. 53 § 284. Comptroller audits. 1. The comptroller shall conduct annual 54 audits of the agencies and agency contractors required to provide 55 language assistance services pursuant to this article. Such audits 56 shall generally determine the effectiveness of the language assistanceS. 4446 6 1 services provided by each agency and agency contractor. Specifically, 2 such audits shall include, but not be limited to, the following informa- 3 tion: (a) The number of requests for language assistance services, 4 disaggregated by agency and agency contractor, type of language assist- 5 ance requested and primary language; 6 (b) The number of limited English proficient individuals served, 7 disaggregated by agency and agency contractor, type of language assist- 8 ance requested and primary language; 9 (c) The number of bilingual personnel and the number of interpreter 10 personnel, disaggregated by agency, agency contractor and language 11 translated by such personnel; 12 (d) The average length of time to provide language assistance services 13 to limited English proficient individuals, disaggregated by agency, 14 agency contractor and primary language; 15 (e) Whether primary language determinations are properly recorded, 16 disaggregated by agency and agency contractor; and 17 (f) Whether, as determined through a random sampling of translated 18 documents, documents have been translated properly and in a timely 19 manner and sent to the appropriate party, disaggregated by agency and 20 agency contractor. 21 2. Whenever possible, the results of such audits shall be verified 22 through direct contact with a statistically significant sample of agency 23 and/or agency contractor clients. 24 § 285. Civil cause of action. Except as otherwise provided by law, any 25 person claiming to be injured by the failure of an agency or agency 26 contractor to provide language assistance services as required under 27 this article, shall have a cause of action against such agency or agency 28 contractor in any court of competent jurisdiction for any or all of the 29 following relief: (a) compensatory and punitive damages; 30 (b) injunctive and declaratory relief; 31 (c) attorneys' fees and costs; and 32 (d) such other relief as a court may deem appropriate. 33 § 286. Limitations. A civil action under this article must be 34 commenced within one year after the alleged violation of the require- 35 ments of this article. If, however, due to injury or disability result- 36 ing from an act or acts giving rise to a cause of action under this 37 article, or due to infancy as defined in the civil practice law and 38 rules, a person entitled to commence an action under this article is 39 unable to do so at the time such cause of action accrues, then the time 40 within which the action must be commenced shall be extended to one year 41 after the inability to commence the action ceases. 42 § 287. Rules. Each agency shall promulgate such rules as are necessary 43 for the purposes of implementing and carrying out the provisions of this 44 article. Such rules shall be applicable to the agency that promulgated 45 the rules as well as to agency contractors associated with such agency. 46 § 288. Severability. If any section, subdivision, sentence, clause, 47 phrase or other portion of this article is, for any reason, declared 48 unconstitutional or invalid, in whole or in part, by any court of compe- 49 tent jurisdiction such portion shall be deemed severable, and such 50 unconstitutionality or invalidity shall not affect the validity of the 51 remaining portions of this law, which remaining portions shall continue 52 in full force and effect. 53 § 3. This act shall take effect on the one hundred eightieth day after 54 it shall have become a law.