Clarifies the scope of protections against discrimination on the basis of disability in services provided by public entities including exclusion from participation or denial of benefits, services, programs or activities of a public entity and refusal of a public entity to make reasonable accommodations unless such entity can establish undue hardship; defines terms.
BILL NUMBER: S7482
TITLE OF BILL : An act to amend the executive law, in relation to certain unlawful discriminatory practices
PURPOSE OR GENERAL IDEA OF BILL : The purpose of this bill is to clarify the scope of protections against discrimination on the basis of disability in services provided by public entities.
SUMMARY OF SPECIFIC PROVISIONS : Section one of this bill adds two new subdivisions, 35 and 36, to section 292 of the executive law. New subdivision 35 defines the term "public entity" to mean the state or any political subdivision including any department, agency, special purpose district, or other instrumentality of state or local government. Subdivision 36 would add to the term "auxiliary aids and services." Under this new section, these services would include qualified interpreters or readers for the hearing or visually impaired, acquisition or modification of equipment and other similar services and actions.
Section two of this bill would amend section 296 of the executive law to add three new subdivisions, three-c, three-d, and three-e. The new subdivision three-c would not allow public entities to deny services, programs or activities to exclude a qualified person with a disability based on such disability. Subdivision three-d would also make it an unlawful discriminatory practice for a public entity to refuse to make reasonable modifications to rules, policies or practices, remove architectural, communication or transportation barriers or refuse to provide auxiliary aids and services to a person with a disability, unless they. can show that to do so would pose an undue hardship. Subdivision three-e provides that to the extent that certain public transportation entities are covered by Subtitle B Title II of the Americans with Disabilities Act of 1990, 42 use 12141 et seq., such entities shall not be subject to the requirements of subdivisions three-c and three-d of this section.
JUSTIFICATION : Beginning with the adoption of Chapter 988 of the laws of 1974, true nondiscrimination requires more than merely refraining from offensive conduct. In some instances, there are certain modest actions which must be undertaken to assure that people with disabilities have an equal opportunity to participate in certain programs, services and activities.
Title II of the ADA prohibits discrimination on the basis of disability by government entities. For several years, similar requirements have been applied to any entity, including state and local government, which receives, federal funds pursuant to the federal Rehabilitation Act of 1973. Given the scope of the 1973 mandate and the extent to which state and local governments continue to receive federal funds, the additional impact of this requirement should be minimal. Although Section 296 of the Executive Law already prohibits such discrimination by public entities as employers and operators of public facilities, this measure will clarify two key obligations of governmental entities providing benefits, programs or services.
First, it will be clear that prohibitions against discrimination extend beyond employment and use of facilities to services, programs and activities. This distinction becomes critical in the case of individuals who may be afforded full access to a facility but are denied the opportunity to participate in a program offered in that facility because of their disability. Second, it will be consistent with comparable federal requirements and will clarify the obligation of the public entity to take reasonable actions to assure that the rules, policies or practices by which services, programs or activities are administered and that the existence of architectural, communication or transportation barriers or the absence of auxiliary aids and services do not prevent the participation of eligible people with disabilities in public entity services, programs and activities.
Given the minimal resources which the federal government has in the past devoted and in the future is also expected to devote to ADA enforcement the availability of state enforcement mechanisms through the Human Rights Law is essential to assure adequate protections against discrimination on the basis of disability in the area of government services. Furthermore, it adds consistency for government entities that are attempting to assist people with disabilities by putting the federal requirements in state law. And finally, it secures these protections in state law, should they be challenged in federal court.
PRIOR LEGISLATIVE HISTORY : A.6303B, 2007 and 2008 passed Assembly. Same as S.7020A, 2008 referred to investigations and governmental operations. A.781 of 2009, passed Assembly. Same as S.5396 passed Senate. Vetoed (Veto No. 61 of 2009).
FISCAL IMPLICATIONS : None.
EFFECTIVE DATE : This act shall take effect on the one hundred twentieth day after it shall have become law.
STATE OF NEW YORK ________________________________________________________________________ 7482 IN SENATE April 14, 2010 ___________Introduced by Sen. HUNTLEY -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Govern- ment Operations AN ACT to amend the executive law, in relation to certain unlawful discriminatory practices THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 292 of the executive law is amended by adding two new subdivisions 35 and 36 to read as follows: 35. THE TERM "PUBLIC ENTITY" MEANS THE STATE OR ANY POLITICAL SUBDIVI- SION THEREOF, AND ANY DEPARTMENT, AGENCY, SPECIAL PURPOSE DISTRICT, OR OTHER INSTRUMENTALITY OF THE STATE OR LOCAL GOVERNMENT. 36. THE TERM "AUXILIARY AIDS AND SERVICES" INCLUDES: (A) QUALIFIED INTERPRETERS OR OTHER EFFECTIVE METHODS OF MAKING AURAL- LY DELIVERED MATERIALS AVAILABLE TO INDIVIDUALS WITH HEARING IMPAIR- MENTS; (B) QUALIFIED READERS, TAPED TEXT OR OTHER EFFECTIVE METHODS OF MAKING VISUALLY DELIVERED MATERIALS AVAILABLE TO INDIVIDUALS WITH VISUAL IMPAIRMENTS; (C) ACQUISITION OR MODIFICATION OF EQUIPMENT OR DEVICES; AND (D) OTHER SIMILAR SERVICES AND ACTIONS. S 2. Section 296 of the executive law is amended by adding three new subdivisions 3-c, 3-d and 3-e to read as follows: 3-C. NO QUALIFIED INDIVIDUAL WITH A DISABILITY SHALL, BY REASON OF SUCH DISABILITY, BE EXCLUDED FROM PARTICIPATION IN OR BE DENIED THE BENEFITS OF THE SERVICES, PROGRAMS OR ACTIVITIES OF A PUBLIC ENTITY, OR BE SUBJECTED TO DISCRIMINATION BY ANY SUCH ENTITY. 3-D. IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR A PUBLIC ENTITY TO REFUSE TO MAKE REASONABLE MODIFICATIONS TO RULES, POLICIES OR PRACTICES; TO REFUSE TO REMOVE ARCHITECTURAL, COMMUNICATION, OR TRANS- PORTATION BARRIERS; OR TO REFUSE TO PROVIDE AUXILIARY AIDS AND SERVICES TO A PERSON WITH A DISABILITY WHO MEETS THE ESSENTIAL ELIGIBILITY REQUIREMENTS FOR SERVICES BY A PUBLIC ENTITY, UNLESS THE PUBLIC ENTITY CAN DEMONSTRATE THAT TO DO SO WOULD POSE AN UNDUE HARDSHIP. THE FACTORSEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01799-08-0 S. 7482 2
TO BE CONSIDERED IN DETERMINING "UNDUE HARDSHIP" SHALL INCLUDE THE SIZE OF THE PUBLIC ENTITY, AND THE NATURE AND COST OF THE ACCOMMODATION NEED- ED. 3-E. TO THE EXTENT THAT THE SERVICES, PROGRAMS, ACTIVITIES, OR RULES, POLICIES AND PRACTICES OF THE NATIONAL RAILROAD PASSENGER CORPORATION, OR OTHER PUBLIC TRANSPORTATION ENTITY WHICH IS OPERATED BY THE STATE, A COUNTY, CITY, TOWN OR VILLAGE, OR ANY AGENCY THEREOF, OR BY ANY PUBLIC BENEFIT CORPORATION OR AUTHORITY, ARE COVERED BY SUBTITLE B TITLE II OF THE AMERICANS WITH DISABILITIES ACT OF 1990, 42 USC 12141 ET SEQ., ANY AMENDMENTS THERETO, AND THE REGULATIONS PROMULGATED THEREUNDER, SUCH ENTITIES SHALL NOT BE SUBJECT TO THE REQUIREMENTS OF SUBDIVISIONS THREE-C AND THREE-D OF THIS SECTION INCLUDING BUT NOT LIMITED TO THE REQUIREMENTS FOR THE REMOVAL OF ARCHITECTURAL, COMMUNICATIONS, OR TRANS- PORTATION BARRIERS UNDER SUBDIVISION THREE-D OF THIS SECTION. S 3. This act shall take effect on the one hundred twentieth day after it shall have become a law.