HB138: relative to interpreters for the deaf in certain governmental or public proceedings.

HB 138-FN - AS AMENDED BY THE HOUSE

30jan03... 0026h

2003 SESSION

03-0133

08/10

HOUSE BILL 138-FN

AN ACT relative to interpreters for the deaf in certain governmental or public proceedings.

SPONSORS: Rep. Bergin, Hills 47; Rep. Wall, Straf 72; Sen. O'Hearn, Dist 12

COMMITTEE: Health, Human Services & Elderly Affairs

ANALYSIS

This bill revises the law on the appointment of interpreters for the deaf and hard of hearing in proceedings or accommodations covered by the Americans with Disabilities Act.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

30jan03... 0026h

03-0133

08/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

Rep. Bergin, Hills 47

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Interpreters for the Deaf and Hard of Hearing. RSA 521-A is repealed and reenacted to read as follows:

CHAPTER 521-A

INTERPRETERS FOR THE DEAF AND HARD OF HEARING

521-A:1 Purpose. The purpose of this chapter is to ensure that deaf and hard of hearing persons who are parties in interest and otherwise affected by proceedings or actions of entities covered under Title II for public entities and Title III for public accommodations of the Americans with Disabilities Act shall have available to them a qualified interpreter or auxiliary aids in accordance with the requirements of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and RSA 354-A.

521-A:2 Definitions. In this chapter:

I. "Appointing authority" means:

(a) A public entity as defined by Title II of the Americans with Disabilities Act which includes any state or local government, any department, agency, special purpose district, or instrumentality of a state or local government.

(b) A private entity defined by Title III of the Americans with Disabilities Act which includes places of public accommodation, commercial facilities and examinations and courses related to applications, licensing, certification, or credentialing for secondary or post secondary education, professional or trade purposes.

II. "Auxiliary Aid" means "auxiliary aid" as defined by the Americans with Disabilities Act, which includes: note takers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, telephones compatible with hearing aids, closed caption decoders, telecommunication devices (TTY's), video text displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments.

III. "Board" means the board of licensure of interpreters for the deaf and hard of hearing established in RSA 326-I.

IV. "Deaf person" means a person whose sense of hearing is nonfunctional for the purpose of communication and whose primary communication is visual.

V. "Hard-of-hearing person" means a person who has a hearing loss, who may or may not primarily use visual communication, and who may or may not use assistive devices.

VI. "Intermediary interpreter" means an interpreter who holds a certificate of Certified Deaf Interpreter or Reverse Skills from the Registry of Interpreters for the Deaf, or a person who has intimate acquaintance with a deaf person who mainly uses uncommon gestures for communicating and may be able to act as an interpreter between the deaf person and the qualified interpreter.

VII. "Principal party in interest" means all deaf or hard-of-hearing persons who under titles II and III of the Americans with Disabilities Act have a right to a qualified interpreter or auxiliary aids. "Principal party in interest" shall include the named party, a person in whom the decision or action directly affects, victims, jurors, parents, guardians, foster parents, or the individual who the principal party relies on for advice or decisions.

VIII. "Qualified interpreter" means a person licensed pursuant to RSA 326-I.

IX. "Qualified legal interpreter" means a qualified interpreter under the Americans with Disabilities Act who in a legal setting is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary including legal constructs. Qualified legal interpreters shall hold a specialized legal certificate awarded by the Registry of Interpreters for the Deaf or a level 5 certificate from the National Association of the Deaf, or shall hold certification from the Registry of Interpreters for the Deaf and successfully complete legal interpreter training. "Qualified legal interpreter" also includes a person granted an exemption under RSA 326-I:7, provided that the person discloses his or her lack of certification or legal training to the Title II or Title III entity.

521-A:3 Preliminary Determination. No qualified interpreter or qualified legal interpreter shall be appointed in any case until the appointing authority and the deaf person make a preliminary determination that the interpreter is able to accurately communicate both receptively and expressively for the parties involved. In the event that the interpreter is found unable to communicate effectively, another qualified interpreter or intermediary interpreter, or a non-licensed interpreter may be obtained, if the board grants a waiver under RSA 326-I:7.

521-A:4 Standards for Selecting Type of Interpreter or Auxiliary Aid. The appointing authority, when required under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, or RSA 354-A, shall appoint:

I. A qualified interpreter for any situation which is not a legal or quasi-legal matter;

II. A qualified legal interpreter for all stages of all criminal, civil, and other adjudicatory proceedings, including criminal investigations which may lead to such proceedings;

III. An intermediary interpreter for situations cited in RSA 521-A:4, I or II in which these specialized services are required to effectuate communication with the deaf person; or

IV. Auxiliary aids.

521-A:5 Notice; Need for Interpreter or Auxiliary Aid. In situations which under the Americans with Disabilities Act require interpreters or auxiliary aids, the appointing authority shall provide such services upon request by the principal party in interest. This request does not have to be in writing.

521-A:6 Coordination of Interpreter and Auxiliary Aid Requests.

I. Whenever an appointing authority receives a request for the services of an interpreter or auxiliary aid, the authority can request the board to furnish the authority with a list of qualified interpreters. If the choice of a qualified interpreter does not meet the needs of the principal party in interest, the appointing authority shall appoint another licensed interpreter.

II. The New Hampshire Association of the Deaf and the New Hampshire Registry of Interpreters are authorized to assist the board to prepare and continually update, a listing of services.

521-A:7 Compensation. An interpreter or qualified legal interpreter appointed by an appointing authority who is a public entity as defined in RSA 521-A:2, I(a) shall be reimbursed at a fixed rate reflecting the current approved fee schedule as established by the department of education, division of career technology and adult learning. Nothing in this section shall be construed to prevent any such appointing authority from employing an interpreter on a full-time basis or at a mutually agreed upon compensation rate. Compensation paid by such appointing authorities shall be negotiated by the entity and the interpreter.

521-A:8 Privileged Communications. An interpreter who is employed to interpret or transliterate between a person who can hear and a principal party in interest may not be compelled to disclose, through reporting, testimony or by subpoena, the contents of the communication, unless consent was granted by the principal party in interest.

521-A:9 Penalties. A person who violates any provisions of this chapter or who knowingly discloses a privileged communication in violation of RSA 521-A:8, shall be guilty of a violation. Upon conviction of a second or subsequent violation under this chapter a person shall be guilty of a class A misdemeanor and may, in addition, be subject to a civil penalty of up to $2000 per offense or, in the case of a continuing offense, $250 for each day the violation continues.

521-A:10 Interpreter or Auxiliary Aid to be Provided. Whenever a principal party in interest is receiving services from an appointing authority that is required under the Americans with Disabilities Act to provide interpreters or auxiliary aids, and the principal party in interest requests an interpreter or auxiliary aid, one shall be provided. Cost for the provision of services shall not be assessed to the deaf or hard-of-hearing person.

521-A:11 Interpreter Required in Civil or Criminal Matters.

I. Any appointing authority involved in the provision of legal services or court-related services shall comply with the Americans with Disabilities Act. A qualified legal interpreter or auxiliary aid shall be provided when requested by the principal party in interest. This includes proceedings of preliminary proceedings involving criminal sanctions or confinements, forfeiture of property, interrogation, administration of the Miranda warnings, grand jury proceedings, arbitration or mediation services, depositions, probation or parole meetings or hearings, psychological evaluation, interests including communication related to needed medical attention during apprehension. Whenever a deaf person is arrested for any reason when the penalty may include imprisonment or a fine in excess of $100 no attempt to interrogate shall be permitted until a qualified interpreter is appointed for said person and then only through the use of such interpreter.

II. No statement, written or oral, made by a deaf or hard of hearing person, in reply to a question by a police officer, sheriff, or other law enforcement personnel having prosecutorial function in any criminal or quasi-criminal proceeding may be used against that person unless the statement was made or elicited through a qualified legal interpreter and was made knowingly, voluntarily, and intelligently, or unless the court finds that effective communication otherwise occurred between the deaf person and law enforcement personnel, the statement was made knowingly, voluntarily, and intelligently. In no event shall the failure of a deaf or hard of hearing person to request an interpreter be deemed a waiver of the appointment of an interpreter. A deaf or hard of hearing person may knowingly, voluntarily, and intelligently waive, in writing, the appointment of a qualified legal interpreter. Such waiver is subject to the written approval of counsel where the deaf or hard of hearing person is being represented by counsel.

521-A:12 Oath of Interpreter. Every interpreter appointed pursuant to the provisions of this chapter, before entering upon his or her duties in any legal or quasi-legal setting, shall take oath that he or she will to his or her best skill and judgment make a true interpretation to the deaf person in a language that the deaf person understands, all spoken language and, if necessary, any written material presented during each stage of the proceeding and of the deaf person's communication to others during each stage of the proceeding, whether or not the deaf person is the principal party in interest, provided that in case for an interpreter appointed for a juror, the interpreter shall also take an oath that he or she will not:

I. Participate in any manner in the deliberations of the jury;

II. Communicate with any member of the jury regarding the deliberation of the jury, except a literal translation of a juror's remarks made during deliberations; or

III. Disclose any of the deliberations with any person.

521-A:13 Visual Recordings; Court Proceedings. On the court's motion, or the motion of a party, the court may order testimony of a party and the interpretation of that testimony by the interpreter be visually and electronically recorded for use in verification of the transcription of the reporter's notes or accuracy of the interpretation. The clerk of the court shall include that recording in the appellate record if requested by a party.

521-A:14 Interpreter Positioning. No court proceedings or testimony shall commence until the qualified legal interpreter is in full view and specially situated to assure proper communication with the participating individual who is deaf or hard of hearing.

2 Effective Date. This act shall take effect January 1, 2004.

LBAO

03-0133

12/23/02

HB 138-FN - FISCAL NOTE

AN ACT relative to interpreters for the deaf in certain governmental or public proceedings.

FISCAL IMPACT:

The Administrative Office of the Courts (AOC) indicates this bill may increase general fund expenditures by $14,250 in FY 2004 and $28,500 each year thereafter. There will be no fiscal impact to state, county and local revenue or county and local expenditures.

METHODOLOGY:

AOC states this bill's requirement to use qualified legal interpreters will result in a minimal impact, however, the requirement for visual recording will require additional general fund expenditures. During FY 2002, the judicial branch paid for approximately 300 hours of deaf interpreting. AOC estimates it will cost $95 per hour to visually record proceedings. Using 300 hours as an estimate, the cost, at $95 per hour, will be $28,500 per year. AOC assumes this bill will cost half that amount in the first year due to the January 1, 2004 effective date. The AOC also states that not all proceedings will be recorded, it is up to the judge's discretion.