Language Services for Limited English Proficient Individuals in New York State Court and Agency Administrative Proceedings
December 1, 2007
Author(s): Mike Mulé
A recent amendment by the New York State Unified Court System Office of Court Administration (OCA) to the New York State Uniform Court Rules and a proposed Model Code of Conduct for Administrative Law Judges by the New York State Bar Association take different approaches to addressing the right of limited English proficient (LEP) individuals to receive language services, interpreter and translation services, in state court and agency administrative proceedings.1
Access to New York State Courts for LEP Individuals
The obligation to provide language services to LEP individuals is based on Title VI of the Civil Rights Act of 1964 (Title VI). On December 1, 2003, the United States Department of Justice (DOJ) sent a letter advising OCA of its obligation under Title VI to provide meaningful access and appropriate language services to LEP individuals as described in the 2002 DOJ LEP Guidance.2 Over the last several years OCA has recognized the right of LEP individuals to have language services in all state court proceedings and court offices.
In April 2006 OCA stated the obligation of New York’s Judiciary “to ensure that all New Yorkers—regardless of language fluency or hearing impairment—can receive the equal justice to which the Constitution and laws of this State entitle them.” 3 OCA noted how, unlike Federal or other state courts, New York long ago decided to provide interpreting services not only to “criminal defendants but also parties in civil cases, witnesses, and crime victims.”4
OCA commitment was to ensure “New York’s courts fulfill the promise of equal justice that is all New Yorkers’ birthright, regardless of nationality.”5 Based on this commitment, Empire Justice Center asked OCA to articulate its current policy to provide interpreters for LEP individuals in criminal and civil proceedings. OCA responded in October 2006 with a policy that described the right of LEP individuals to receive language services “in all New York’s courts and court agencies.”6
New York’s local Justice Courts also have an obligation to provide language services to LEP individuals. In the November 2006 “Action Plan for the Justice Courts,” OCA described how the linguistic diversity of New York’s courts is not limited to State-paid courts.7 OCA outlined several steps it will be taking to improve language services and vindicate the constitutional rights of LEP litigants in Justice Courts.8
The right of LEP individuals to receive meaningful access to any state court is now part of the Uniform Court Rules. In October 2007 OCA amended the Uniform Court Rules to add Section 217 which requires criminal and civil trial courts to provide interpreter services for LEP individuals.9 This new section requires all trial courts to appoint interpreters when a party or guardian or a minor in a Family Court proceeding is LEP and an interpreter is needed to ensure their meaningful participation in the court proceeding.10 LEP individuals must also receive interpreting services at court clerk offices.11
Language Services for LEP Individuals in Administrative Proceedings
The Model Code of Judicial Conduct for State Administrative Law Judges (Code) was adopted by the New York State Bar Association Committee on Attorneys in the Public Service and the Subcommittee on the Administrative Law Judiciary on October 24, 2007. While the Code prohibits prejudice in administrative proceedings based on national origin, it does not accurately describe the existing obligation of state agencies to provide language services to limited English proficient (LEP) individuals.
Canon 3, 7(a), of the Code describes the “practices that a state administrative law judge may appropriately follow and may find helpful in advancing the ability of a litigant not represented by an attorney or other relevant professional to be fully heard,” including “(v) being attentive to language barriers that may affect parties or witnesses.” The permissive discretion of the current text falls short of existing federal and state recognized obligations to ensure LEP individuals are provided meaningful access to administrative proceedings.
The obligation to provide language services to LEP individuals in administrative proceedings is based on Title VI of the Civil Rights Act of 1964, requirements of federal funded programs administered by New York State agencies, and previously recommended practices for New York administrative law judges.12
In addition to the 2002 DOJ LEP Guidance which describes the language service obligations of state agencies that receive federal funding, the 2003 Department of Health and Human Services (HHS) LEP Guidance described how “individual rights depend on precise, complete, and accurate interpretation or translations, particularly in the context of administrative proceedings, the use of certified interpreters is strongly encouraged.”13 All state entities which receive Federal Medicaid and/or SCHIP funds including State agencies are covered by the guidance.14
Federal statutes also require interpreters at administrative hearings. Under the Food Stamp Act, if an LEP individuals requests an administrative hearing “the State agency is required by § 272.4(c)(3) to provide bilingual staff or interpreters who speak the appropriate language, [and] the State agency shall insure that the hearing procedures are verbally explained in that language.”15
A New York State Court also required an administrative law judge (ALJ) to provide an LEP individual an interpreter at a Medicaid fair hearing to ensure she was provided the constitutional opportunity to be heard.16 Because the ALJ did not provide her an interpreter she was deprived of a right she was entitled to by Federal and State law without due process of law.17
New York State agencies have also acknowledged their obligation to provide language services to LEP individuals. The Department of Labor has provided interpreters for LEP individuals at unemployment benefits hearings since 1983.18 The Department of Health has recognized its obligations under the HHS LEP Guidance.19 Recently the Office of Children and Family Services described its commitment to ensure meaningful access to agency programs for LEP individuals.20
The obligation to provide interpreters to LEP individuals at administrative proceedings was also part of Manual for Administrative Law Judges and Hearing Officers (Manual).21 The Manual stated “[w]here a witness is unable to speak or understand the English language, there will be a need to receive the witness's testimony through an interpreter.”22 It also recommends each agency maintain a list of qualified interpreters.23 Several members of the Committee that created the recent Code also served on the advisory review committee for the Manual.
The current Model Code of Judicial Conduct for State Administrative Law Judges should be revised to incorporate the existing obligations of an administrative law judge to ensure LEP individuals have meaningful access to state administrative proceedings.
Endnotes
1. LEP refers not only to spoken language but includes individuals that are Deaf or hard of hearing and communicate using American Sign Language (ASL) even though these rights are protected under the Americans with Disabilities Act of 1990.
2. See Department of Justice, Letter to State Courts.
3. New York State Office of Court Administration, Court Interpreting in New York: A Plan of Action, 2, (2006), available at: www.courts.state.ny.us/courtinterpreter/action_plan.pdf (PDF).
5. Page 3, Unified Court Report.
6. See Letter from Nancy M Mangold, Director, Division of Court Operations, October 3, 2006.
7. See New York State Office of Court Administration, Action Plan for the Justice Courts, 28-29, (2006), available at: http://www.nycourts.gov/publications/pdfs/ActionPlan-JusticeCourts.pdf.
9. N.Y.Ct.Rules, § 217.1 is currently only available at http://www.courts.state.ny.us/rules/trialcourts/217_amend.pdf (PDF).
10. See, N.Y.Ct.Rules, §217.1(a).
11. See, N.Y.Ct.Rules, §217.2.
12. This term “administrative law judges” includes hearing officers and others designated to conduct agency proceeding.
13. Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 68 Fed. Reg. 47,316, (2003).
14. See Center for Medicare and Medicaid Services, “Dear State Medicaid Director” Letter, August 31, 2000, available at: www.cms.hhs.gov/smdl/downloads/smd083100.pdf (PDF)
16. Matters of Rivera v. DeBuono, Civ. No. 22701062, N.Y. L.J., May 6, 1999, (N.Y. Sup. Ct. May 6, 1999).
18. See MLC v. Sitkin, 79 Civ. 5899(RLC) (S.D.N.Y., 1983), Stipulation and Order of February 18, 1997.
19. See New York State Register, 20, May 17, 2006, available at: http://tinyurl.com/2gb44t (PDF).
20. See New York State Office of Children and Family Services, The Needs of and Services for Persons with Limited English Proficiency (LEP), 48, (2007) available at: http://www.ocfs.state.ny.us/main/reports/LEP2007.pdf (PDF).
21. See, New York State Department of Civil Service, Manual for Administrative Law Judges and Hearing Officers, 99-102, (2002), available at: http://www.cs.state.ny.us/pio/hearingofficermanual/manual_for_hearing_officers.pdf [hereinafter Manual]
Copyright © Empire Justice Center. All rights reserved. Articles may be reprinted only with permission of the authors.
