October 21, 1999
Antonia C. Novello. M.D. |
Brian Wing |
| Jason A. Turner Commissioner Human Resources Administration City of New York 180 Water Street New York, New York 10038 |
Peter Clement |
John Wingate |
Re: Docket Number 02-99-3130
Dear Commissioners Novello, Wing, Turner, Wingate and Assistant Commissioner Clement:
The U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR), has completed its investigation of two complaints filed against the New York City Human Resources Administration (HRA), the New York State Department of Health (DOH) and the New York State Office of Temporary and Disability Assistance (OTDA) and a civil rights review of Nassau County and Suffolk County.1 The overall investigation focused on allegations that HRA, DOH, OTDA, Nassau and Suffolk Counties discriminate against Limited English Proficient (LEP) persons on the basis of national origin in violation of Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. Section 2000d, et. seq., and its implementing regulation at 45 C.F.R. Part 80, and hearing-impaired persons in violation of Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. Section 794, its implementing regulations, 45 C.F.R. Part 84 et seq., and Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Section 12131, et. seq., and its implementing regulations at 28 C.F.R. Part 35 et seq. Upon investigation, OCR has concluded that HRA, DOH, OTDA, Nassau and Suffolk Counties are in violation of the provisions cited above. This letter explains OCR’s determination and lists the steps that must be taken to correct the violations detailed below.
On April 29, 1999, OCR received a complaint filed by several advocacy organizations2 charging that HRA discriminates against Hispanic persons seeking to apply or otherwise secure public assistance benefits in HRA Job Centers and other public assistance offices. The complaint alleges that HRA routinely fails to provide Hispanic persons of limited English proficiency qualified interpreter services during application and eligibility interviews, thus, in effect, denying such persons an adequate and effective means to communicate with HRA staff members. The complaint charges, among other things, that HRA staff, in many cases, require LEP applicants and beneficiaries to bring their own interpreters to public assistance interviews and appointments.3 These practices, the complaint alleges, deny LEP persons meaningful access to the Medicaid and Temporary Assistance for Needy Families (TANF) programs and subject them to discrimination on the basis of national origin in violation of Title VI.
At the time the above complaint was received, OCR was actively investigating a complaint alleging that HRA discriminates against individuals with hearing impairments on the basis of disability. The complaint, filed by a public assistance beneficiary who is hearing impaired, alleges that HRA public assistance offices fail to provide hearing-impaired persons with sign language interpreter assistance during eligibility and certification interviews. HRA’s refusal to provide such aids, the complaint charges, creates significant barriers for hearing-impaired persons seeking to apply for or access benefits, thus subjecting such persons to discrimination on the basis of disability.
On May 27, 1999, OCR was informed by regional representatives of the Health Care Financing Administration (HCFA) that the agency had initiated a program review of the New York State Medicaid Program in New York City and Nassau and Suffolk Counties. The review was initiated after agency officials were apprised of a Federal Court case during which OTDA and HRA officials readily acknowledged the existence of significant problems in the processing of public assistance applications in Job Centers. The Court’s ruling specifically details numerous problems with the procedure utilized by HRA Job Center staff members in processing of such applications. Reynolds, et al. v. Giuliani, et al., 35 F.Supp. 2d 331 (1999).4 Over the course of several months, HCFA had also received numerous complaints from advocacy organizations alleging that HRA Job Centers imposed significant barriers on individuals seeking to apply for Medicaid benefits.5
After discussing the complaints, OCR and HCFA representatives agreed to consolidate their efforts and conduct a joint program review of the New York State Medicaid Program in New York City, and Nassau and Suffolk Counties. 6
During the course of this program review, OCR and HCFA representatives examined relevant HRA, DOH, and OTDA policies, regulations, county directives, memoranda, individual case files and various documents provided by HRA, DOH and OTDA in response to the complaints. In addition, OCR and HCFA representatives conducted numerous unannounced visits to public assistance offices in New York City and Nassau and Suffolk Counties. These included Job Centers, Income Maintenance Centers, public assistance and Medicaid application offices in New York City, including those offices identified by the complainants.7
As part of the review, OCR and HCFA employees made unannounced visits to numerous public assistance offices in New York City and Nassau and Suffolk counties. The locations of the sites visited are as follows: Brooklyn, Bayridge Job Center 70 and Bushwick Job Center 66; Queens, Jamaica Job Center 54 and Long Island City Job Center 53; Staten Island, Richmond Job Center 99 and Richmond Office (Medicaid-only); Manhattan, Yorkville Job Center 19; Bronx, Tremont Job Center 41, Crotona Job Center 46, Melrose IMC and Bergen IMC; Nassau, Mineola Center (County DSS Headquarters); and Suffolk, Wyandanch Center and Hauppauge Center (Medicaid- only).
Individual visits to public assistance offices were conducted in two stages. During the first stage, bilingual OCR and HCFA representatives, posing as potential Medicaid applicants, requested in Spanish, Chinese or American sign language, public assistance application information and assistance. (These representatives are referred to in this letter as “testers”). In an effort to assess whether appropriate practices, policies and procedures were in place to assist LEP or hearing- impaired persons, visits to public assistance offices also consisted of an interviewing and observation stage. During this stage, OCR and HCFA representatives conducted interviews of public assistance staff members, applicants and beneficiaries 8 present on the day of the visit and made observations and assessments of office procedures, practices and facilities.
OCR is the agency responsible for investigating alleged violations of Title VI, the ADA and Section 504 by recipients of Federal financial assistance from HHS, and for investigating alleged violations of the ADA by State and local government agencies.
HHS provides Federal financial assistance to HRA, DOH ,OTDA, Nassau and Suffolk Counties ,9 pursuant to 42 U.S.C. §1396 et seq., as the State and local agencies administering the New York State Medicaid and TANF programs. As such, OCR has the authority to conduct compliance reviews and investigate complaints alleging violations of Title VI, the ADA, Section 504 and their implementing regulations with respect to these agencies.
Issue One: Access for Limited English Proficient Clients
Whether HRA, DOH, OTDA, Nassau and Suffolk Counties discriminated against LEP persons on the basis of national origin, by failing to provide such persons with adequate language assistance in violation of Title VI and 45 C.F.R. Parts 80.3(a),(b)(1)(i)(ii),(iv),(v), (vi) and (b)(2).
Title VI and its implementing regulations prohibit recipients of Federal financial assistance from implementing policies and practices that discriminate, or have the effect of discriminating, against individuals on the ground of race, color or national origin.
45 C.F.R. Part 80.3(a) provides:
No person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program to which this part applies.
In addition, 45 C.F.R. Part 80.3(b)(1) provides, in pertinent part:
A recipient under any program to which this part applies may not, directly or through contractual or other arrangements, on ground of race, color or national origin:
45 C.F.R. Part 80.3(b)(2) provides:
[R]ecipients may not utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color or national origin or have the effect of defeating or substantially impairing accomplishment of the objectives of their programs with respect to individuals of a particular race, color or national origin.
Pursuant to these provisions, recipients of Federal financial assistance must ensure that their policies, procedures and practices do not deny or have the effect of denying access to their programs on the basis of race, color or national origin. This includes ensuring access to persons of a particular national origin who are LEP. In this regard, OCR’s long standing position has been that recipients must provide such persons with oral and written language assistance which enables them to participate and benefit from the programs and services administered by the entities. Failure to provide such assistance, in OCR’s view, denies LEP persons the opportunity to communicate effectively with the provider, and thus, prevents meaningful participation and access to the provider’s programs and services.
As detailed below, OCR has found that public assistance offices in New York City, Nassau and Suffolk Counties fail to provide LEP persons with adequate language assistance. OCR found that due to the lack of such assistance, LEP clients experience significant difficulties when applying for or accessing public assistance benefits and, as a result, are effectively denied meaningful access to the New York State Medicaid and TANF programs. Therefore, OCR has determined that HRA, DOH, OTDA, Nassau and Suffolk Counties discriminate against LEP persons in violation of Title VI and its implementing regulations, at 45 C.F.R. 80.3(a) and (b)(1)(ii), (iii), (iv), (v), (vi) and (b)(2).
During the review in general, and the unannounced visits in particular, OCR discovered that public assistance office staff members frequently deny LEP persons language interpreter assistance and instruct such persons to bring interpreters to eligibility interviews and other appointments. For example, staff members in Job Centers 99 (Staten Island), 33 (Queens), and 54 (Queens) acknowledged regularly instructing clients who did not speak English to return with family members or friends who could provide interpretation assistance. 10 Indeed, many LEP clients interviewed during our visits were accompanied by English-speaking family members or friends for this purpose. A Spanish-speaking client, interviewed in Job Center 66 (Brooklyn) stated that she often asks bilingual family members or friends to accompany her to office appointments because she was instructed by Center staff members to bring her own interpreter for office visits.11 She further stated that she must request the assistance of bilingual clients in the office waiting area when bilingual family members or friends are unable to accompany her.
Other clients interviewed during the visit attested to the Center’s practice of asking clients to provide their own interpreters. OCR found that in some cases, appointment notices direct clients to bring interpreters to eligibility interviews. A notice advising a client to appear at the Bushwick Medicaid Center for an eligibility interview, a copy of which was obtained by OCR, directs the client to “bring a translator” to the review.12
OCR also found that existing bilingual staff resources, at some locations, were clearly insufficient to serve the needs of LEP clientele. While on-site, OCR representatives noted that Job Center 54 (Queens) employed only one Spanish-English Spanish-English bilingual employee, even though according to a staff member, this facility serves a substantial Hispanic clientele. Clients interviewed in Job Center 66, located in a predominantly Hispanic community of Brooklyn, stated that they were often told to bring persons to serve as interpreters due to unavailability of bilingual staff members. Indeed, HCFA and OCR representatives visiting the Center did not observe any bilingual staff members speaking languages other than English in the Center’s large eligibility and re-certification unit. In Suffolk County, HCFA and OCR representatives were told by staff members at the Wyndanch Center that, due to attrition of Spanish-speaking staff members, the office had to rely frequently on a bilingual security guard for Spanish interpretation assistance.
The experiences of HCFA and OCR testers also indicate that public assistance office staff members frequently lack awareness of existing OTDA, DOH and HRA policies and offices lack effective procedures for assisting LEP and hearing-impaired persons. 13 For instance, in Job Center 54 (Queens), a tester who requested public assistance information in Spanish was told by office staff members that no one was available to provide interpreter assistance. A staff member at the facility recommended that she return at a future time with someone who could provide interpretation assistance.
In many instances, office staff members acknowledged being unaware of existing policies for the assistance of LEP persons. In New York City, many HRA staff members, including some with direct client contact, indicated that they did not know of specific policies and did not utilize language assistance tools provided by the agency to assist in serving LEP and hearing-impaired clients.14 For example, staff members in Job Center 53, (Queens) acknowledged that they were unaware of agency policies established to assist LEP clients15 and were never informed that the agency had of language assistance tools that were available. Many workers also indicated that they had never received training on assisting LEP clients. One staff member at this facility, who acknowledged having regular contact with clients, stated that there were no policies or procedures for providing assistance to LEP clients. Staff members at many HRA Job centers were unaware that language palm cards and other language assistance tools developed by the agency were available to them.16
Public assistance offices, in many instances, were found to lack signs and basic informational materials in languages other than English. Many offices did not post directional and informational signs, including those describing client rights, in languages other than English. In Job Center 66 (Brooklyn), where office staff members stated that a majority of the clients served are Hispanic, OCR and HCFA representatives noted that signs were not posted in Spanish. 17 In Job Center 53 (Queens), representatives noted that signs were not posted in Chinese or Russian, despite the recognition by the Center Director that many of its clients are Chinese and Russian immigrants. While Spanish public assistance application forms were generally available, instructional forms, in many cases, were available only in English. In Nassau County, a Spanish-speaking tester requesting a public assistance application was provided a Spanish application with supporting, instructional material written in English.
OCR also found, consistent with the complainants’ assertions, that LEP clients experience significant problems at public assistance centers due to the unavailability of interpreter assistance in these offices.18 Several LEP clients indicated that they had problems understanding the instructions of English-speaking staff members. A Spanish-speaking client interviewed in Job Center 66 (Brooklyn) indicated that she often has problems understanding the instructions of her English-speaking caseworker, causing, she believes, complications in the receipt of her benefits. Another woman interviewed at the center expressed similar concerns, further indicating that, despite being eligible, she waited four months to receive Medicaid and food stamps.19 OCR and HCFA representatives, observed several instances in which LEP persons, requesting public assistance application information, experienced obvious difficulty understanding the instructions of English-speaking staff members. Many of those observed resorted to requesting assistance from other applicants in waiting areas. In Job Center 66 (Brooklyn), a Spanish-speaking LEP client who did not understand the instructions of an English-speaking staff member requested interpreter assistance from an OCR observer sitting in the Center’s waiting room.
In summary, OCR found that LEP clients, in many instances, are denied language interpreter assistance during visits to public assistance offices and are often required by office staff members to provide their own interpreters before being served. OCR also found that bilingual staff resources in public assistance offices were insufficient to serve LEP clientele and public assistance offices lacked effective procedures for the assistance of LEP persons. OCR’s investigation also revealed that staff, in many offices, lacked awareness of existing State and local policies, directives and language assistance tools promulgated and developed by their respective agencies. Public assistance offices were also found to lack signs and basic informational materials in languages other than English. OCR found that the lack of adequate translation and/or interpreter services imposes significant barriers on LEP persons applying for and receiving public assistance benefits.
Pursuant to this review, OCR finds that public assistance offices in New York City and Nassau and Suffolk counties fail to provide LEP persons with adequate language assistance when they apply or seek to access benefits. The absence of such assistance, OCR finds, denies LEP persons meaningful access to the Medicaid and TANF programs and has the effect of discriminating against LEP persons on the basis of national origin, in violation of Title VI, 45 C.F.R. 80.3(a) and (b)(1)(i),(ii), (iii) (iv), (v), (vi) and (b)(2).
Issue two: Access for the Hearing Impaired
Issue: Whether HRA, DOH, OTDA, Nassau and Suffolk Counties discriminates against persons with hearing impairments on the basis of their disability by failing to provide qualified sign language interpreters or other auxiliary aids in violation of the ADA and its implementing regulations, 28 C.F.R. 35.130(a), (b)(1)(i), (ii), (iii), 35.160(a), (b)(1), (2), 35.161; and Section 504 and its implementing regulations, at 45 C.F.R. 84.4(a) and (b)(1), (ii) and (iii); and 84.52(a)(1)(2), (3), (4), (d)(1).
The ADA and Section 504, and their implementing regulations prohibit discrimination on the basis of disability by governmental entities and by recipients of Federal financial assistance. 42 U.S.C. § 12101, et seq.; 29 U.S.C. § 794; 28 C.F.R. Part 35.130, et seq.; and 45 C.F.R. 84.4, et seq., respectively. These laws and regulations require, among other things, that recipients take appropriate measures to ensure that their programs are accessible to individuals with disabilities. This includes ensuring effective communication with hearing-impaired persons. 28 C.F.R. Part 35.160(a), (b)(1),(2), 35.161; 45 C.F.R. Part 84.52(d)(1), (2).
28 C.F.R. Part 35.160(a) provides:
A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.
28 C.F.R. 35.160(b)(1) and 45 C.F.R. Part 84.52 (d)(1) require: public entities to furnish appropriate auxiliary aids and services, when necessary, to afford sensory-impaired individuals an equal opportunity to participate in and benefit from, services, programs, or activities conducted by the entity. Auxiliary aids and services may include qualified interpreters, transcription services and telecommunication devices (TDD) for the hearing-impaired. 28 C.F.R. Part 35.104(1). In determining which auxiliary aid is necessary, an entity must give primary consideration to the requests of individuals with disabilities. 28 C.F.R. Part 35.160 (b)(2).
Based on its review, OCR has determined that public assistance offices in New York City and Nassau and Suffolk Counties lack the ability to ensure lack the ability and fail to provide auxiliary aids and services to hearing-impaired clients. This, OCR finds, denies hearing-impaired clients the means by which to effectively communicate with office staff and, thus, an equal opportunity to participate in and benefit from the services and programs administered by HRA, DOH, OTDA, Nassau and Suffolk Counties.
As indicated above, during the review of public assistance offices in New York City and Nassau and Suffolk counties, OCR and HCFA representatives were assigned to assess the ability of public assistance centers to serve hearing-impaired clients. As part of this assessment a tester was assigned to pose as a hearing-impaired client and instructed to request Medicaid and public assistance information at several public assistance offices using American sign language. The tester was also instructed to request a sign language interpreter to assist her in communicating with office staff members. In an effort to fully assess the ability of public assistance offices to serve hearing-impaired clients, HCFA and OCR representatives also interviewed staff members at several offices and requested information pertaining to the policies and procedures applying to the assistance of hearing-impaired individuals.
The experiences of the tester and the interviews conducted of public assistance staff members revealed that offices frequently lack the ability to ensure consistent and effective communication with hearing-impaired clients. Public assistance offices were found to be clearly incapable of assisting hearing-impaired persons who requested application and eligibility assistance.
For instance, during her visit to Job Center 53 (Queens), the tester, posing as a hearing-impaired client and requesting information in American Sign Language, was directed, through the use of handwritten notes, to sit and wait until office staff members obtained assistance. After waiting for more than three hours and receiving no instruction, the tester again requested assistance from office staff members, at which point she was advised that she would have to return at a future date. She was further informed that, if she could not provide her own sign language interpreter, she would have to call the office two days in advance of her next visit to assure that one would be present on that date. When asked whether the office had TTY/TTD devices available to receive her call, a staff member responded that the office did not. In a similar test conducted of the Nassau County Department of Social Services office located in Mineola, the tester was instructed to sit and wait until staff members were able to assist her. The tester waited several hours but was never provided assistance.20
Similar to its findings in the LEP context, OCR found that staff at many facilities was unaware of or disregarded existing policies and agency tools developed for the assistance of hearing- impaired persons.21 Public assistance offices were also found to lack TTD/TTY and other devices to facilitate communication with hearing-impaired persons. Staff members in Job Center 40, located in the Melrose section of the Bronx, acknowledged being unaware of existing state and local policies and sign language interpreter resource directories developed for the purpose of assisting hearing-impaired persons. Staff members at the facility further stated that the office did not have formal or informal policies or , procedures for providing assistance to hearing-impaired clients or TTY/TTD devices to assist such clients. While indicating some familiarity with existing State and local policies and procedures, staff in Job Center 99 (Staten Island) acknowledged that, in practice, hearing-impaired clients are instructed to bring their own sign- language interpreters to scheduled interviews.
Based on its review, OCR concludes that public assistance offices in New York City and Nassau and Suffolk Counties lack the ability and fail to provide auxiliary aids to hearing-impaired clients. This inability and failure, in effect, renders the programs administered by HRA, DOH, OTDA, Nassau and Suffolk Counties inaccessible to persons with hearing impairments and results in discrimination on the basis of disability in violation of the ADA and its implementing regulations, 28 C.F.R. 35.130(a), (b)(1)(i), (ii), (iii), 35.160(a), (b)(1),(2), 35.161; and Section 504 and its implementing regulations, at 45 C.F.R. 84.4(a) and (b)(1), (ii) and (iii); and 84.52(a)(1)(2), (3), (4), (d)(1).
OCR provides recipients who have failed to comply with applicable statutes or regulations an opportunity to take corrective actions necessary to remedy existing violations. OCR stands ready to provide immediate, substantial assistance in securing voluntary compliance. If compliance cannot be secured by voluntary means, it may be effected by the suspension or termination of, or refusal to grant or to continue Federal financial assistance or any other means authorized by law. Such means may include, but are not limited to a referral to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under applicable Federal law, assurance or contractual undertaking. 42 U.S.C. §2000d-1 and 45 C.F.R. §80.8.
Within thirty (30) days of receipt of this letter, HRA, DOH and OTDA, Nassau County and Suffolk County collectively, must provide a corrective action plan to OCR addressing the deficiencies cited above. The plan shall include a commitment by HRA, DOH, OTDA, Nassau and Suffolk Counties to:
A. Assessment- Conduct a comprehensive assessment of existing policies and implementation procedures for providing assistance to LEP and sensory-impaired clients, the need for modification of these policies and procedures and/or for development of new policies and procedures, capability of existing staff to meet these assistance needs, and training needs of staff.
B. Development of Comprehensive Plan to Serve LEP Clients- With respect to the Title VI findings:
C. Development of Comprehensive Plan to Serve Sensory Impaired Clients- With respect to the Section 504 and ADA findings:
D. Monitoring- With respect to Title VI, Section 504 and the ADA:
During this thirty day period and afterwards, OCR will be available to provide your agency with assistance in developing the corrective action plan. We are readily available to discuss the matter with you, your staff and/or representatives of your agency, and hope that the matter can be resolved through collaboration and cooperation.
HRA, DOH, OTDA, Nassau and Suffolk Counties shall, within thirty (30) days of OCR’s approval of the plan, enact and implement the plan. OCR will be responsible for ensuring that the remedies and/or corrective action plans developed during this period will correct the violations in a manner which is consistent with the legal requirements of the statutes and applicable regulations cited in this letter. At any time during this process, you may submit alternative, proposed remedies to OCR for review.
If your office is unable to secure compliance by the end of the 30 days, OCR may proceed with enforcement actions either by commencing administrative or legal proceedings.
Please note that 45 CFR Part 80.7 (2)(e), provides that “no recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Section 601 of the Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part ....”
Please note that OCR determinations do not affect the right of an aggrieved persons to file a private civil action to remedy alleged discrimination by a recipient of Federal financial assistance. Also, no recipient may intimidate, threaten, coerce or discriminate against an individual because he or she has made a complaint, testified, assisted or participated in any manner in an action to secure rights protected by the civil rights statutes enforced by OCR. We will advise both the Health Care Financing Administration and the Administration for Children and Families of our findings. One or both of these agencies may make separate findings and determinations based on those regulations they enforce.
Under the Freedom of Information Act, it may be necessary for OCR to release this document and related correspondence and records upon request. In the event OCR receives such a request, we will seek to protect, to the extent provided by law, personal information the disclosure of which would constitute an unwarranted invasion of privacy.
We thank all those who cooperated with OCR in this matter. If you have any questions, please call Arnold Loperena, Supervisory Investigator-in-Charge, at (212) 264-3313 or (212) 264-4136. The TTY number for our office is 212-264-2355.
Sincerely yours,
Michael R. Carter
Regional Manager
Office for Civil Rights
cc: Judith Berek
Regional Administrator
Health Care Financing Administration
26 Federal Plaza-Room 3800
New York, NY 10278
Mary Ann Higgins
Northeast Regional Administrator
Administration for Children and Families
26 Federal Plaza- Room 4048
New York, NY 10278
1For a further explanation of the joint program review of Nassau and Suffolk counties, see pp. 3-4 of this letter.
2The complaint was filed by four advocacy organizations, Make the Road by Walking, the New York Immigration Coalition, Puerto Rican Legal Defense and Education Fund and New York Legal Assistance Corporation, and was endorsed by 23 organizations who serve public assistance beneficiaries.
3 The allegations of the complaint virtually mirror those investigated by OCR in a prior case, Mendoza v. New York State Department of Social Services, Complaint No. 02-73-7001 (1974). In Mendoza, OCR investigated the allegations of several complainants alleging that the HRA discriminated against Hispanic persons by failing to provide adequate language assistance in Income Maintenance (IM) Centers. OCR found that New York City’s policies and practices with respect to assisting LEP persons violated Title VI. As a result of OCR’s findings in Mendoza, the State agreed to implement a corrective action plan which consisted of, among other things, the hiring of 277 bilingual Income Maintenance specialists and a revision of LEP policies and procedures. We do not, at this juncture, make a determination as to whether the State has violated any terms of the corrective action plan made pursuant to Mendoza .
4 In Reynolds, the Legal Aid Society of New York successfully petitioned the U.S. District Court, Southern District of New York, for a preliminary injunction barring HRA from converting existing HRA Income maintenance centers into Job Centers. The injunction was partially modified after HRA formulated and implemented a corrective action plan which called for, among other things, the training of Job Center staff members on the processing of Medicaid applications. Reynolds, et al. v. Giuliani, et al., 43 F. Supp.2d 492 (1999).
5 Several media reports have also detailed various problems with the administration of the New York State Medicaid Program. See e.g., Rachel L. Swarns, New York City Admits Turning Away Poor, Newsday, January 22, 1999, p.B3, column 4; Joel Stashenko, Pataki Officials: We are Checking on Giuliani Welfare Offices, Associated Press State and Local Wire, February 3, 1999; Rachel L. Swarns, State Investigators Find Medicaid Delays in City, New York Times, February 4, 1999, p. B1, column 1; Roni Rabin, In Nassau, Delays in Medicaid Benefits, Newsday, March 14, 1999, p. A31.
6OCR and HCFA are authorized to conduct such reviews pursuant to 45 C.F.R. 80.7 and 42 C.F.R. 430.32(a), respectively.
7Nassau and Suffolk counties were included in the review after the publication of media reports detailing various problems with the administration of the Medicaid and TANF programs. See, e.g., Roni Rabin, In Nassau, Delays in Medicaid Benefits, Newsday, March 14, 1999, p. A31.
8 Consistent with the terminology used within public assistance offices, applicants and recipients of public assistance are referred to, throughout this section, as “clients.”
9OTDA and DOH supervise most New York State public assistance programs receiving Federal financial assistance. DOH has primary responsibility over Medicaid eligibility determinations made in the State. OTDA supervises the administration of the New York State Medicaid and TANF programs in the State’s local social service districts. Pursuant to a recent Memorandum of Understanding with DOH, OTDA is presently responsible for conducting all fair hearings concerning Medicaid eligibility. HRA is the New York City agency responsible for the administration of the Medicaid and TANF programs in the five New York City counties.
10 One staff member interviewed at Job Center 53 commented that if LEP clients did not appear with someone to translate for them or could not “figure it out on their own,” they would be directed to return with someone who could interpret.
11 In Job Center 53, a Chinese-speaking tester requesting public assistance application information was told by an office staff member that no one was available to assist her. A Chinese- speaking client overhearing the encounter, approached the tester and advised her that Chinese persons are expected to bring people to translate for them.
12The notice, sent to a Hispanic client who does not speak English, is written entirely in English.
13HRA Policy Bulletin # 99-13, addressed to all Job Center Staff, provides: “[i]n instances where an applicant has limited English speaking ability and there is no other person present who can interpret, use the Directory of Community Organizations with Bilingual Interpreter Staff booklet to obtain an interpreter for the applicant. Under no circumstances is an applicant to be turned away because an interpreter cannot be located.”
HRA Policy Directive # 99-06RR, also addressed to all Job Center Staff, provides in part: “[i]f an individual appears to need or requests an interpreter to assist him or her in completing the Application/Job Profile, the receptionist must ensure that an interpreter is provided.”
In addition, Administrative Directive 83 ADM-19, promulgated by the New York State Department of Social Services (presently known as the Office of Temporary and Disability Assistance), states: “[i]t is the responsibility of local districts to make arrangements to provide translators for individuals who are not fluent in English. No person shall be denied access to services based on a district’s inability to provide adequate translations.”
14On January 12, 1999, in response to a previous inquiry, OCR received correspondence from HRA detailing the various language resources available to job and income maintenance center staff members for the assistance of LEP persons. These resources purportedly include: multilingual palm cards to assist staff members in identifying the language spoken by clients, a New York City Language Bank Directory, identifying the names of mayoral agency bilingual personnel who have volunteered to provide telephone interpretation, and a Directory of Community Organizations (DCO) with bilingual interpreter staff members willing to assist HRA staff members. The agency also noted that HRA employs over 458 bilingual staff members and that it also has developed a Language Resource Training Program Informational Flyer to insure that all staff members are aware of the agency’s language resource tools.
An informal survey conducted of the organizations listed in the DCO calls into question the frequency with which this language assistance tool is used. The survey, conducted by several advocacy organizations, found that most organizations listed in the DCO were rarely called by HRA staff members to provide language assistance. Indeed, many of the organizations in the DCO were unaware that their organization’s name was listed as a resource. (A copy of the survey is on file with OCR). OCR contacted several organizations listed in the DCO and also found that many had never received language assistance requests from HRA.
15 The Center Director and Assistant Director stated that they were aware of written policies and procedures for accommodating hearing impaired and non-English speaking clients. However, they were unable to provide copies of those policies to HCFA and OCR representatives.
16See, supra note 14.
17 Signs written in Spanish were posted throughout Job Centers 46, 54 and the Mineola public assistance office. These centers, however, did not have signs posted in other languages.
18Similarly, in Mendoza, OCR found that LEP public assistance clients experienced numerous difficulties due to the lack of adequate language assistance in New York City IM Centers. A comprehensive study conducted by OCR pursuant to its investigation of the case found that LEP clients experienced substantial delays in the receipt of services, were forced to rely on the assistance of bilingual family members and friends and absorb language related costs due to lack of language services in IM Centers. United States Department of Health, Education and Welfare, Office for Civil Rights, Mendoza Report: Access of Non or Limited English Speaking Persons of Hispanic Origin to the New York City Department of Social Services (1978).
19 Many LEP clients who were interviewed believed that, in order to avoid complications or delay in the receipt of public assistance benefits, it was necessary to be accompanied to the office by a bilingual friend or family member who could provide interpreter assistance.
20The tester’s experiences were consistent with the assertions of the aforementioned hearing-impaired complainant who claimed that she was denied assistance when she appeared at a public assistance office for an eligibility appointment.
2118 N.Y.C.R.R. 351.21 requires that social service districts make appropriate arrangements to accommodate hearing-impaired individuals.
In addition, 18 N.Y.C.R.R. 355.1 (b) provides: “[i]n order to fully comply with the provisions of 45 C.F.R. Part 84, which was issued to effectuate Section 504 of the Rehabilitation Act of 1973, each district must provide information in a manner that is accessible to blind or deaf applicants and recipients.”
HRA’s Directory of Community Organizations includes a list a several organizations whichwho have purportedly agreed to assist HRA public assistance offices by providing sign language interpreter assistance to hearing-impaired clients.
ocrmail@hhs.gov
Date of last revision: October 29, 1999
