Fair Hearing Resources

Tolling the Time Limit for Requesting a Fair Hearing: Limited English Proficiency (LEP)

Article ID: 54
Last updated: 16 Jun, 2016

by Gene Doyle, LMSW

On April 27, 2006, OTDA revised Administrative Directive 06-ADM-05, which consolidated existing policy guidance for providing access to persons with disabilities and/or Limited English Proficiency (LEP).

"C. Access by Persons with LEP

*  *  *

"No person shall be denied access to an application for benefits, programs or services based on a [social services] district's inability to provide adequate interpretation services. Persons with LEP must be able to apply without undue hardship.

"If an applicant/recipient is a person with LEP, the district is responsible for obtaining a qualified interpreter. District staff should be reminded that an applicant/recipient has the choice to use a relative or friend as an interpreter. If the applicant/recipient does not choose this option or no bilingual staff interpreter is available, the district must set up an appointment for the applicant/recipient to return and must arrange for an interpreter or other interpretive services, e.g., Language Line Services, to be available at the
appointment. However, applicants/recipients are not required to bring their own interpreter, and no person may be denied access to benefits, programs or services because of a district's inability to provide adequate interpreters. . . . Districts should document in the case record: (1) if an interpreter was requested by the applicant/recipient and if so, the date the interpreter was requested; (2) if the district offered to provide an interpreter without the applicant/recipient having made a request for such services; (3) whether the
applicant/recipient agreed to use the interpreter provided by the district and if the applicant/recipient  agreed to use such an interpreter, how the services were or will be provided; (4) if the applicant/recipient declines/refuses to use the district’s interpreter or interpreter services and brings his or her own interpreter.

"When an applicant/recipient with LEP calls or visits the district office in person the district must:

"• Ask the person what language he/she speaks (many persons know English well enough to answer the question);

"• If the person is unable to answer the question, attempt to identify the applicant’s/recipient’s language by having him/her point to the language on a poster or Interpreter Services Desk Guide;

"• Once the language is identified, solicit (if available) the aid of an on-site bilingual staff person to assist as an interpreter. The district should not seek the aid of a bilingual applicant or recipient. Relatives or friends of the applicant/recipient may be used if the applicant/recipient requests and the district determines that the relative or friend is capable of interpreting;

"• Refer to the district’s specific procedure for providing access to LEP persons if no qualified interpreter is available on-site;

*  *  *

"• Document in the case record the language of the LEP person, whether the LEP person chose to use his/her own interpreter, and/or whether a request for an interpreter was made, so that an interpreter can be scheduled, if necessary, for any future appointments;

"• Document each attempt to contact an interpreter and if the interpreter appeared in person or by telephone."

06-ADM-05 Revised § VI.C (pp. 17-18).

On October 6, 2011, New York Governor Andrew M. Cuomo issued Executive Order No. 26, codified at 9 NYCRR § 8.26, which required, among other things, that

"1. Executive State agencies that provide direct public services shall translate vital documents, including essential public documents such as forms and instructions provided to or completed by program beneficiaries or participants. The translation shall be in the six most common non-English languages spoken by individuals with limited-English proficiency in the State of New York, based on United States census data, and relevant to services offered by each of such agencies. Translation shall be achieved on a rolling basis to be completed no later than 365 days of the signing of this Order.

"2. Each such agency shall provide interpretation services between the agency and an individual in his or her primary language with respect to the provision of services or benefits.

"3. Each such agency shall publish a language access plan that will reflect how the agency will comply with this Order and all progress since it last submitted a language access plan. Such plan shall be issued within 90 days of the signing of this Order, and updated every two years thereafter" (emphasis supplied).

OTDA's Language Access Plan for LEP Individuals was last updated on April 1, 2015. The six most common non-English languages were identified as:

  • Spanish,
  • Chinese,
  • Russian,
  • Italian,
  • Korean, and
  • French (Haitian) Creole

Id. Part 2 (at p. 2).

OTDA Informs LEP individuals about their right to free language assistance services by using mailing envelopes, which display "a statement in 10 languages telling readers that an important notice is enclosed, and if they need help reading the notice, they should contact their worker."  Id. Part 3 (at p. 3).

OTDA also provides online information on "Language Access," including a telephone number to call: (518) 402-3096. Id.

Similarly, DOH uses mailing envelopes, which display a statement on language assistance in seven non-English languages, and also provides online information on "Free Language Assistance Services," including a separate telephone number to call: (518) 486-1812.

Fair Hearing Decision Digest on Tolling the Time Limit for LEP Individuals to Request a Fair Hearing

The following Fair Hearing Decisions determined that LEP individuals had good cause for not timely requesting Fair Hearings because the notices being challenged were not in individuals' primary language:

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Article ID: 54
Last updated: 16 Jun, 2016
Revision: 7
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