Report Title:

Language Access

Description:

Provides for effective and timely communication between all levels of government and individuals who are precluded from using public services due to language-proficiency barriers. (HB2778 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

2778

TWENTY-THIRD LEGISLATURE, 2006

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO LANGUAGE ACCESS.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that the effective maintenance and development of a free and democratic society depends on the right and ability of its citizens or residents, and government to communicate with each other.

The legislature further finds that substantial numbers of people who live, work, and pay taxes in this state are unable to communicate effectively with their government, either because they do not speak or write English, or because their primary language is not English. Likewise, employees of state and local government agencies are often unable to communicate with these individuals who require their services. Consequently, a significant portion of our population is essentially denied the rights and benefits to which they would otherwise receive.

The legislature further finds that while federal Executive Order No. 13166 affirmed that Title VI of the Civil Rights Act of 1964 required federally funded programs to provide language-accessible services, many departments and state agencies are not in compliance with this order. The legislature finds that all state agencies and departments must comply with federal Executive Order No. 13166.

The purpose of this Act is to provide for effective and timely communication between all levels of government and individuals who are precluded from using public services due to language barriers.

SECTION 2. Chapter 368, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . LANGUAGE ACCESS

§371-A Definitions. Whenever used in this part, unless a different meaning clearly appears from the context:

"Access or participate" means to be informed of, participate in, and benefit from public services, programs, and activities offered by a covered entity at a level equal to English-proficient individuals.

"Covered entity" means any government unit, including the executive, legislative, and judicial branches of government, and all state departments, agencies, or programs that furnish information or render services, programs, or activities directly to the public or contracts with other entities, either directly or indirectly, to conduct or provide programs, services, or activities to the public.

"Language" means human speech or the expression of ideas by written characters or by means of sign language and includes systems used by nations, people, or other distinct communities.

"Language access director" means the official of the department of labor and industrial relations who, pursuant to section 368-F(b), coordinates and supervises the activities of any government unit, department, agency, or program undertaken in compliance with the provisions of this chapter.

"Limited or no-English proficiency" means an individual who identifies as being or is unable to adequately understand or to express oneself in the spoken or written English language.

"Oral language services" means the free provision of oral information necessary to enable limited or no-English proficiency persons to access or participate in programs or services offered by a covered entity. The term "oral language services" may include:

(1) The placement of competent, experienced, and trained bilingual or interpreter staff in public contact positions;

(2) Arranging or contracting for the use of a telephone interpreter service;

(3) Contracting with an outside interpreter service for trained and competent interpreters; and

(4) Arranging formally for the services of voluntary community interpreters who are trained and competent in the skill of interpreting.

"Vital documents" means:

(1) Applications and corresponding instructional materials;

(2) Written notices of rights, denial, loss, or decreases in benefits or services, and parole or other hearing notices;

(3) Notices that require:

(A) A direct response for the participant; or

(B) The participant to appear for an interview or submit documentation;

(4) Notices regarding the rights of participants to a conference, a fair hearing, or an appeal;

(5) Notices describing regulation changes that affect benefits;

(6) Legal contracts;

(7) Written tests that do not assess English-language competency but test competency for a particular license or skill for which knowledge of written English is not required;

(8) Complaint forms;

(9) Written documents that have the potential for important consequences for the individual seeking services; and

(10) Outreach materials published by a covered entity in a tangible format that inform individuals about the services offered, their rights, or eligibility requirements for benefits and participation, including notices advising persons of free language assistance.

§371-B Oral language services. (a) A covered entity shall provide timely oral language services to a person with limited or no English proficiency who seeks to access or participate, whether by phone or in person, the services, programs, or activities offered by the covered entity.

(b) The covered entity shall inform the public about the availability of these services as follows:

(1) Upon initial contact, whether in person or by phone, all covered entities shall inform individuals of their right to free language assistance services;

(2) All covered entities with recorded telephonic messages about their services or operations shall maintain multilingual messages which, at a minimum, include business hours, office location(s), and the availability of free language assistance services.

(c) A covered entity shall, at least once a year, determine the type of oral language services needed based on:

(1) The number or proportion of limited or no-English proficient persons of the population served or encountered, or likely to be served or encountered by the covered entity;

(2) The frequency with which limited or no-English proficient individuals come into contact with the covered entity;

(3) The points of contact in the program or activity where language assistance is likely to be needed;

(4) The importance of the service provided by the covered entity; and

(5) The resources available to the covered entity to provide effective language assistance.

(d) In determining the type of oral language services needed under subsection (c), the covered entity may consider reviewing the following sources of information:

(1) Federal census data, including the United States Census Bureau’s most current report entitled "Language Use and English Ability, Linguistic Isolation" or any successor report;

(2) Census language data, indicating that individuals speak English "less than very well";

(3) Local census data relating to language use and English-language ability;

(4) Other governmental data, including intake and service data collected by other covered entities; and

(5) Data collected and made available by the language access advisory council.

(e) Beginning the first fiscal year after the effective date of this Act, the databases and tracking applications of a covered entity shall contain fields that capture information relating to the number or proportion of limited or no-English proficient persons of the population served or encountered, or likely to be served or encountered by the covered entity, and the languages spoken. If it is demonstrated to the language access director that this requirement is not feasible due to budgetary constraints, a covered entity shall make all due efforts to comply with this subsection by the beginning of the next fiscal year. All information collected under subsection (c) shall be provided to the language access director and be made available to the public upon request.

(f) To the extent that a covered entity requires additional personnel to provide oral language services based on the determination set forth in this section, the covered entity shall hire bilingual personnel to fill existing, budgeted vacant public contact positions.

§371-C Written language services. (a) A covered entity shall provide timely translations of vital documents into any non-English language spoken by a limited or no-English proficient population that constitutes three per cent or five hundred individuals, whichever is less, of the population served or encountered, or likely to be served or encountered, by the covered entity.

(b) Notwithstanding subsection (a), a covered entity with fewer than one hundred persons in a language group who are eligible to be served or likely to be directly affected by the covered entity’s program is not required to translate written materials but shall provide written notice of the right to receive competent oral translation of written materials, in the primary language of the limited or no-English proficient group.

(c) A covered entity shall post conspicuous multilingual signs in all offices in which services are provided to the public to inform individuals of their right to free language assistance services and invite them to identify themselves as persons needing such services.

(d) If the provisions of this part are contractually imposed on a non-covered entity, this section shall apply.

§371-D Additional obligations. (a) A covered entity shall establish a plan for language access through administrative rules.

(b) Each plan for language access shall be established in consultation with the language access director, the language access advisory council, and the entity’s coordinator for language access. Each language access plan shall be updated every two years and shall set forth, at a minimum, the following:

(1) The types of oral language services that the entity will provide and how the determination was reached;

(2) The titles of translated documents that the entity will provide and how the determination was reached;

(3) The number of public contact positions in the entity and the number of bilingual employees and competent interpreters in public contact positions, together with a list of languages covered;

(4) An evaluation and assessment of the adequacy of the translation and interpreter services to be provided; and

(5) A description of the funding and budgetary sources upon which the covered entity intends to rely to implement its language access plan.

(c) In establishing and updating the language access plan, the entity shall consult the sources of data set forth in section 368-B (d).

(d) A covered entity shall designate a language access coordinator who shall report directly to the director of the entity and shall:

(1) Establish and implement the entity’s plan for language access in consultation with the language access director and the language access advisory council;

(2) Conduct periodic public meetings with appropriate advance notice to the public; and

(3) Develop a plan to conduct outreach to communities with limited or no-English proficient populations about their plan for language access and the benefits and services to be offered under this part.

§371-E Public meetings and hearings. (a) The legislature, commissions, departments, or other covered entities to which this part applies shall not be required to translate meeting notices, agendas, or minutes.

(b) Oral interpretation for any public meeting or hearing held by the legislature, commissions, departments, or other covered entities shall be provided if requested at least forty-eight hours in advance of the meeting or hearing.

§371-F Language access director; duties. (a) The department of labor and industrial relations shall provide oversight, central coordination, and technical assistance to covered entities in their implementation of the provisions of this part to ensure that the provision of services by covered entities meets acceptable standards of translation or interpretation.

(b) There shall be within the department of labor and industrial relations a language access director to coordinate and supervise activities under this part. The language access director shall:

(1) Review and monitor each covered entity’s plan for language access for compliance with this part and Title VI of the Civil Rights Act of 1964, approved July 2, 1964 (78 Stat. 252; 42 U.S.C. Section 2000d et seq.), or any other succeeding provision of federal law, regulation, or guideline;

(2) Accept, monitor, and investigate public complaints regarding language access violations at covered entities, and, where necessary, issue warning letters of noncompliance to the covered entities regarding failures to provide language access;

(3) Endeavor to eliminate any language access violations by informal methods such as conference, conciliation, mediation, and persuasion; and

(4) Consult with language access coordinators, the language access advisory council, and the heads of government offices with limited or no-English proficient populations.

§371-G Language access advisory council. (a) There is established the language access advisory council within the department of labor and industrial relations for administrative purposes. The council shall consist of the following members appointed by the governor:

(1) One representative from the state government;

(2) A bilingual case management worker, or an individual who is or has been employed by a state-funded immigrant service agency or program;

(3) A representative of an advocacy organization that provides services to limited or non-English-speaking persons;

(4) A member from the limited or no-English proficient population who has an interest in the provision of language services;

(5) A representative of the University of Hawaii department of language and linguistics that provides professional training in interpretation and translation;

(6) A representative of a Hawaiian language advocacy organization;

(7) A representative of a bilingual referral service or program; and

(8) The language access director, who shall serve in an ex-officio capacity.

(b) Members shall be appointed without the necessity of the advice and consent of the senate. After the initial formation of the language access advisory council, appointments to the council shall be for staggered terms of four years each. The council shall select one of its members to serve as chair. No member of the council shall receive any compensation for servicing on the council but shall be allowed necessary expenses for travel, board, and lodging incurred in the performance of council duties.

(c) The language access advisory council shall serve in an advisory capacity to the language access director, providing community input on:

(1) Implementation and compliance with this part;

(2) The quality of oral and written language services provided by covered entities; and

(3) The adequacy of the covered entity’s dissemination and training of its employees likely to have contact with limited or no-English proficient persons, its policies and procedures for language assistance services, competency in working effectively with in-person and telephone interpreters, and understanding of the dynamics of interpretation between clients, providers, and interpreters."

SECTION 3. There is appropriated out of the general revenues of the State of Hawaii the sum of $      or so much thereof as may be necessary for fiscal year 2006-2007 to staff and maintain the office of the language access director and language access advisory council.

The sum appropriated shall be expended by the department of labor and industrial relations for the purposes of this Act.

SECTION 4. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 5. This Act shall take effect on July 1, 2006.