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Disability Law News – Bulletin Board

Posted on July 31st, 2022

This “Bulletin Board” contains information about recent disability decisions from the United States Supreme Court and the United States Court of Appeals for the Second Circuit.

We will continue to write more detailed articles about significant decisions as they are issued by these and other Courts, but we hope that this list will help advocates gain an overview of the body of recent judicial decisions that are important in our judicial circuit.

SUPREME COURT DECISIONS

Carr v. Saul, 141 S.Ct. 1352 (Apr. 22, 2021)

The Supreme Court held that a claimant is not precluded from raising a legal issue for the first time in U.S. District Court if it was not raised before the Administrative Law Judge (ALJ).  The underlying issue in question in Carr and its companion cases was whether the ALJ was properly appointed under the Appointments Clause of the U.S. Constitution. In the aftermath of Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (2018) challenging the constitutionality of SEC ALJs, Carr and other plaintiffs challenged the legitimacy of the ALJs who had denied their disability claims and sought new hearings. The Commissioner argued the plaintiffs had forfeited their Appointments Clause challenges because they had not raised them before SSA during the administrative appeals process. The Supreme Court resolved a conflict in the circuits by holding that given the non-adversarial nature of SSA hearings, issue-exhaustion is not required.

 

Smith v. Berryhill, 139 S.Ct. 1765 (2019)

The Supreme Court held that an Appeals Council dismissal of a request for review is a final decision subject to judicial review.  The Court unanimously held that where the     Appeals Council has dismissed a request for review as  untimely after a claimant has obtained a hearing from an ALJ on the merits, the dismissal qualifies as a “final decision . . . made after a hearing” within the meaning of 42 U.S.C § 405(g). It distinguished its earlier ruling in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), by emphasizing that as opposed to the denial of a request for reopening in Sanders, there had been a decision by an ALJ on the merits of the plaintiff’s claim.

 

Biestek v. Berryhill, 139 S.Ct. 1148 (2019)

In a 6-3 decision, the Court declined to adopt a categorical rule that a vocational expert’s supporting data must be provided in order for the testimony to constitute substantial evidence. But the majority acknowledged that in some cases it may be possible to draw an adverse inference against a VE who refuses to provide supporting data.

 

Astrue v. Capato, ex rel. B.N.C., 132 S.Ct. 2021 (2012)

A unanimous Supreme Court upheld SSA’s denial of survivors’ benefits to posthumously conceived twins because their home state of Florida does not allow them to inherit through intestate succession.  The Court relied on Section 416(h) of the Social Security Act, which requires, inter alia, that an applicant must be eligible to inherit the      insured’s personal property under state law in order to be eligible for benefits. In rejecting Capato’s argument that the children, conceived by in vitro fertilization after her husband’s death, fit the definition of child in Section 416(e), the Court deferred to SSA’s interpretation of the Act.

 

Barnhart v. Thomas, 124 S. Ct. 376 (2003)

The Supreme Court upheld SSA’s determination that it can find a claimant not disabled at Step Four of the sequential evaluation without investigation whether her past relevant work actually exists in significant numbers in the national economy.  A unanimous Court deferred to the Commissioner’s interpretation that an ability to return to past relevant work can be the basis for a denial, even if the job is now obsolete and the claimant could otherwise prevail at Step Five (the “grids”).  Adopted by SSA as AR 05-1c.

 

Barnhart v. Walton, 122 S. Ct. 1265 (2002)

The Supreme Court affirmed SSA’s policy of denying SSD and SSI benefits to claimants who return to work and engage in substantial gainful activity (SGA) prior to adjudication of disability within 12 months of onset of disability.  The unanimous decision held that the 12-month durational requirement applies to the inability to engage in SGA as well as the underlying impairment itself.

 

Sims v. Apfel, 120 S. Ct. 2080 (2000)

The Supreme Court held that a Social Security or SSI claimant need not raise an issue before the Appeals Council in order to assert the issue in District Court.  The Supreme Court explicitly limited its holding to failure to “exhaust” an issue with the Appeals Council and left open the possibility that one might be precluded from raising an issue.

 

Forney v. Apfel, 118 S. Ct. 1984 (1998)

The Supreme Court finally held that individual disability claimants, like the government, can appeal from District Court remand orders.  In Sullivan v. Finkelstein, the Supreme Court held that remand orders under 42 U.S.C. 405(g) can constitute final judgments which are appealable to circuit courts.  In that case the government was appealing the remand order.

 

Shalala v. Schaefer, 113 S. Ct. 2625 (1993)

The Court unanimously held that a final judgment for purposes of an EAJA petition in a Social Security case involving a remand is a judgment “entered by a Court of law and does not encompass decisions rendered by an administrative agency.”  The Court, however, further complicated the issue by distinguishing between 42 USC §405(g) sentence four remands and sentence six remands.

 

SECOND CIRCUIT DECISIONS

Schillo v. Kijakazi, 31 F.4th 64 (2d Cir. Apr. 6, 2022)

The court affirmed the District Court decision under the pre 2017 opinion evidence regulations that applied in this case. It found the ALJ properly accorded lesser weight to the opinions of two treating physicians because one was conclusory and vague and the other, rendered in check-box format, was not supported by the medical evidence. And according to the court, both opinions as to the plaintiff’s tremors and sensory deficits were inconsistent with the medical evidence, which identified only mild tremors, and the plaintiff’s testimony. The court also agreed with the ALJ’s assessment that the opinion of the consultative examiner was entitled to even less weight. It rejected plaintiff’s argument that the ALJ could not make an RFC finding because she had declined to accord controlling weight to any of the medical opinions; the ALJ is entitled to weigh all available evidence to make RFC findings and her conclusion need not perfectly correspond with opinions of record. Finally, the court found that the ALJ’s failure to articulate the so-called Burgess factors for evaluating treating source opinions to be harmless error as it was evident she had applied the substance of the treating physician rule.

 

Colgan v. Kijakazi, 22 F.4th 353 (2d Cir. Jan. 3, 2022)

The court remanded, finding the ALJ erred in failing to accord controlling weight to the opinion of the treating physician under the pre 2017 opinion evidence regulations that applied in this case. The court held the ALJ failed to find good reasons under the old regulations for discounting the opinion of a concussion specialist that the plaintiff would be off task 33% of the day and absent more than four days per month due to her headaches and other impairments. The ALJ also erred in discounting the opinion because it was presented in “check box” form; the opinion was supported by voluminous treatment notes. The court criticized the ALJ for “cherry-picking” particular instances of improvement to create inconsistencies with the treating source opinion. And it criticized the ALJ for relying too heavily on the opinions of consulting physicians, particularly where the consulting opinions did not address or dispute the crux of the treating source’s opinion.

 

Alexander v. Saul, 5 F.4th 139 (2d Cir. July 8, 2021)

The Second Circuit upheld a district court’s refusal to extend the time to appeal its decision affirming the Commissioner’s denial of an SSI claim. Although the Circuit was “sympathetic” to the plaintiff, it concluded the district court had not abused its discretion – even though the plaintiff filed her appeal and request for an extension only two days after the 60-day deadline expired. The district court had reasonably applied the “excusable neglect” factors rather “good cause” standard under Fed. R. App. P. 4(a)(5) because the plaintiff’s failure to appeal was at least partially due to her own inadvertence in failing to notify her attorney of her change of address rather than due to her alleged mental illness. The court refused to toll the Rule 4(a)(5) deadline as it is considered jurisdictional and less flexible than the statute of limitations governing the 60-day limit to seek judicial review under 42 U.S.C. § 405(g).

 

Sczepanski v. Saul, 946 F.3d 152 (2d Cir. 2020)

The court held that ability to complete work during the probationary period is relevant to a disability claim. It remanded for further proceedings at Step five of the Sequential Evaluation to determine whether the claimant could perform work as required during the probationary period, including meeting the levels for absenteeism tolerated by the employer.

 

Estrella v. Berryhill, 925 F.3d 90 (2d Cir. 2019),

The Court of Appeals endorsed in strong terms the value of treating source evidence and affirmed its prior treating physician rule cases.  The court faulted the ALJ for failing to consider explicitly the Burgess factors incorporated into the former opinion evidence regulations, which were replaced in 2017 by 20 C.F.R. §§ 404.1520c(a) & 416.920c(a). The new regulations were not considered by the court.

 

Lockwood v. Comm’r of SSA, 914 F.3d 87 (2d Cir. 2019)

The Court of Appeals remanded because the ALJ had not met his affirmative obligation under SSR 00-4p to inquire about any possible or apparent conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT).  The court found the ALJ did not meet his burden simply by asking the vocational expert if her testimony was consistent, especially where the ALJ found the plaintiff could not reach overhead, but the three jobs to which the VE testified all required frequent or occasional reaching.

 

Lesterhuis v. Colvin, 805 F.3d 83 (2d Cir. 2015)

 The Court of Appeals remanded for consideration of a  retrospective medical opinion from a treating physician submitted to the Appeals Council, citing Perez v. Chater, 77 F.3d 41, 54 (2d Cir. 1996). The ALJ’s decision was not supported by substantial evidence in light of the new and material medical opinion from the treating physician that the plaintiff would likely miss four days of work per month. Since the vocational expert had testified a claimant who would be absent that frequently would be unable to work, the physician’s opinion, if credited, would suffice to support a determination of disability. The court also faulted the district court for identifying gaps in the treating physician’s knowledge of the plaintiff’s condition. Citing Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008), the court reiterated it may not “affirm an administrative action on grounds different from those considered by the agency.”

 

Greek v. Colvin, 802 F.3d 370 (2d Cir 2015)

The court remanded for clarification of the treating source’s opinion, particularly as to the claimant’s ability to perform postural activities. The doctor had also opined that Mr. Greek would likely be absent from work more than four days a month as a result of his impairments. Since a vocational expert testified there were no jobs Mr. Greek could perform if he had to miss four or more days of work a month, the court found the ALJ’s error misapplication of the factors in the treating physician regulations was not harmless. “After all, SSA’s regulations provide a very specific process for evaluating a treating physician’s opinion and instruct ALJs to give such opinions ‘controlling weight’ in all but a limited range of circumstances.  See 20 C.F.R. § 404.1527(c)(2); see also Burgess, 537 F.3d at 128.” (Emphasis supplied.)

 

McIntyre v. Colvin, 758 F.3d 146 (2d Cir. 2014)

The Court of Appeals for the Second Circuit found the ALJ’s failure to incorporate all of the plaintiff’s non-exertional limitations explicitly into the residual functional capacity (RCF) formulation or the hypothetical question posed to the vocational expert (VE) was harmless error. The court ruled that “an ALJ’s hypothetical should explicitly incorporate any limitations in concentration, persistence, and pace.” 758 F.3d at 152. But in this case, the evidence demonstrated the plaintiff could engage in simple, routine tasks, low stress tasks despite limits in concentration, persistence, and pace; the hypothetical thus implicitly incorporated those limitations.  The court also held that the ALJ’s decision was not internally inconsistent simply because he concluded that the same impairments he had found severe at Step two were not ultimately disabling.

 

Cichocki v. Astrue, 729 F.3d 172 (2d Cir. 2013)

The Court held the failure to conduct a function-by-function analysis at Step four of the Sequential Evaluation is not a per se ground for remand.  In affirming the decision of the district court, the Court ruled that despite the requirement of Social Security Ruling (SSR) 96-8p, it was joining other circuits in declining to adopt a per se rule that the functions referred to in the SSR must be addressed  explicitly.

 

Selian v. Astrue, 708 F.3d 409 (2d Cir. 2013)

 The Court held the ALJ improperly substituted her own lay opinion by rejecting the claimant’s contention that he has fibromyalgia despite a diagnosis by his treating physician. It found the ALJ misconstrued the treating physician’s treatment notes. It criticized the ALJ for relying too heavily on the findings of a consultative examiner based on a single examination. It also found the ALJ improperly substituted her own criteria for fibromyalgia. Citing the guidance from the American College of Rheumatology now made part of SSR 12-2p, the Court remanded for further proceedings, noting the required finding of tender points was not documented in the records.

The Court also held the ALJ’s RFC determination was not supported by substantial evidence.  It found the opinion of the consultative examiner upon which the ALJ relied was “remarkably vague.”  Finally, the court agreed the ALJ had erred in relying on the Grids to deny the claim. Although it upheld the ALJ’s determination that neither the claimant’s pain or depression were significant, it concluded the ALJ had not affirmatively determined whether the claimant’s reaching limitations were negligible.

 

Talavera v. Astrue, 697 F.3d 145 (2d Cir. 2012)

The Court of Appeals held that for purposes of Listing 12.05, evidence of a claimant’s cognitive limitations as an adult establishes a rebuttable presumption that those limitations arose before age 22. It also ruled that while IQ scores in the range specified by the subparts of Listing 12.05 may be prima facie evidence that an applicant suffers from “significantly subaverage general intellectual functioning,” the claimant has the burden of establishing that she also suffers from qualifying deficits in adaptive functioning. The court described deficits in adaptive functioning as the inability to cope with the challenges of ordinary everyday life.

 

Lockwood v. Comm’r of SSA914 F.3d 87 (2d Cir. 2019)

The Court of Appeals remanded because the ALJ had not met his affirmative obligation under SSR 00-4p to inquire about any possible or apparent conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT). The court found the ALJ did not meet his burden simply by asking the vocational expert if her testimony was consistent, especially where the ALJ found the plaintiff could not reach overhead, but the three jobs to which the VE testified all required frequent or occasional reaching.

 


Second Circuit Reverses Faulty Step 4 Finding

Posted on May 14th, 2018

In the case of a pro se appellant, the Second Circuit reversed a lower court finding and remanded for further proceedings.  Glessing v. Commissioner of Social Security, — Fed. Appx. —, 2018 WL 1050476 (2d Cir. Feb. 26, 2018). The District Court had upheld a decision that Mr. Glessing, a former NYPD detective, could return to his past work as a “Desk Officer.” The problem was Mr. Glessing never worked as a “Desk Officer.” He had been on “restricted duty,” which included answering telephones, for a short period of time because he could no longer go out on patrol. But his only past work was as a detective and security guard.

 

The Court held that the Administrative Law Judge (ALJ) erred in including the Desk Officer job as past relevant work. As a result, the vocational expert testimony that Mr. Glessing could return to that work was erroneous. The Court was also unpersuaded by the Commissioner’s post hoc justification of the ALJ’s decision on appeal in that the ALJ analyzed how the past work was “actually performed” (he did not consider this) as opposed to “generally performed” (he only considered this).

 

It is always heartwarming when a person who believes he or she is right is willing to go to the mat, and ultimately prevails. Congratulations to Mr. Glessing.

 


W.D.N.Y. Decides Trauma Related Cases

Posted on May 14th, 2018

As discussed elsewhere in the April 2018 Disability Law News, many of our clients have experienced significant trauma, which has contributed to their symptoms and impairments. [See article on page 10 about the recently released Social Security Administration Fact Sheet on Posttraumatic Stress Disorder (PTSD).] Two decisions from the Western District of New York reflect the consequences clients can experience a result of trauma.

 

U.S. District Court Judge Michael Telesca remanded for the calculation of benefits where the plaintiff was disabled as the result of PTSD, depression, and anxiety. Cintron v. Commissioner of Social Security, 2018 WL 507156 (W.D.N.Y. Jan. 23, 2018). The plaintiff was a victim of domestic violence who had been stalked by her abuser even after she moved from Puerto Rico to New York under a witness protection program. Judge Telesca found the ALJ erred in ignoring the opinions of the plaintiff’s therapists, who described the plaintiff’s symptoms, including intrusive thoughts, excessive worry, forgetfulness, suicidal ideation, inappropriate interaction with others, and occasional violent outbursts. He held the ALJ had “cherry-picked” entries in their treatment notes supporting a finding of not disabled while ignoring notations that the plaintiff’s PTSD and anxiety symptoms continued to interfere with her functioning. Judge Telesca also found the ALJ erred in finding the plaintiff not fully credible, criticizing among other things, the ALJ’s reliance on the plaintiff’s trips to Puerto Rico to testify against her abuser in a murder trial as evidence of her ability to cope.

 

In Reyes v. Colvin, 2017 WL 3404762 (W.D.N.Y. Aug. 9, 2017), Magistrate Judge Marian Payson also remanded for calculation of benefits in a case where the plaintiff began experiencing depression and psychoses after a second trimester miscarriage. Although the plaintiff was not diagnosed with PTSD, she experienced many of the symptoms associated with PTSD, including nightmares, disassociation, anger, and hallucinations.

 

Magistrate Payson found the ALJ erred in rejecting the opinions of the plaintiff’s treating therapist and nurse practitioner. Acknowledging those opinions were not entitled to controlling weight, the Magistrate nevertheless determined the ALJ did not provide good reasons for rejecting them. She also rejected the ALJ’s reliance on GAF scores to support his claim the opinions were “greatly overstated.” She concluded the opinions were entitled to significant weight, and in combination with the evidence of record, constituted substantial evidence to support a finding of disability. Magistrate Payson disagreed with the ALJ’s finding that the plaintiff’s alleged activities of daily living did not support her claim of disability, noting the ALJ failed to acknowledge the plaintiff’s inability to care for her children during periods of increased hallucinations and disassociation. The Magistrate criticized the ALJ for appearing to equate the plaintiff’s alleged ability to care for her children with ability to work.

 

Both plaintiffs were represented on appeal by Kate Callery of the Empire Justice Center.

 


Empire Justice Victory Means Thousands of Immigrants in NY with Humanitarian Status Can Access Financial Assistance

Posted on March 29th, 2018

Read more here.


Court Strikes Down Restrictions in Medicaid Coverage for Compression Stockings and Orthopedic Footwear

Posted on January 28th, 2015

Federal Court Orders State to Stop Restricting Coverage of Compression Stockings and Orthopedic Footwear.

On July 1, 2016, a federal judge in New York issued an order enjoining state health officials from limiting coverage of orthopedic footwear and compression stockings  for some state Medicaid beneficiaries. The Empire Justice Center and the National Health Law Program represented recipients, and argued that the state’s elimination of certain orthopedic services violated the rights of Medicaid beneficiaries and individuals with disabilities, pursuant to Medicaid law and the Americans with Disabilities Act.

The 2016 order makes permanent the policy issued in 2013 as a result of a preliminary injunction.   Following the district court decision of December 9, 2013, the State immediately suspended its implementation of benefit limits on orthopedic footwear and compression stockings.  The New York State Department of Health issued an eMedNY Update reverting to the system in place prior to the 2011 changes.  Medicaid coverage for these items is no longer limited to those with certain medical conditions.  The eMedNY Update is available here.  Under the 2016 order, this policy is now permanent.   Many beneficiaries without such access to medically necessary accoutrements would likely have to leave their communities for institutions.

EARLIER HISTORY OF LAWSUIT

The lawsuit challenged  the State’s  new limits on compression stockings and orthopedic footwear, providing compression stockings only to those few Medicaid beneficiaries who suffer from specific conditions named by statute.  This left many other beneficiaries without medically necessary services.

The District Court originally granted plaintiffs’ motion for summary judgment and ordered a permanent injunction against the State’s benefit limits.  Download the court decision here.  The court granted virtually all of plaintiffs’ claims, finding that the State’s benefit limits violated the reasonable standards and comparability requirements of the federal Medicaid Act, the Due Process Clause, as well as the ADA and Section 504.  The State appealed that decision to the Second Circuit Court of Appeals.

The State appealed from that decision arguing primarily that it has discretion to limit services in this way for budgetary reasons because it views them as merely “optional.”  Download the State’s brief here.  The State also alleges that plaintiffs have no cause of action under the Supremacy Clause to challenge state laws that are inconsistent with the federal Medicaid reasonable standards requirement, even though the State failed to raise this argument for summary judgment in the district court.

In support of plaintiffs’ claims, the U.S. Department of Justice (DOJ) filed an amicus brief  in Davis v. Shah, the class action lawsuit  DOJ supports plaintiffs’ claims that the State’s benefit limits  place plaintiffs and plaintiff class members at risk of institutionalization in violation of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504).  Download the DOJ brief here. 

Plaintiffs-appellees  arguing that the court correctly found the benefit limits to be in violation of the federal Medicaid Act, the Due Process Clause, the ADA and Section 504.  Download plaintiffs’ brief here. 

In March, 2016, the Second Circuit Court of Appeals issued a decision that resulted in sending the case back to the district court.   821 F.3d 231 (2016). There, the parties reached  an agreement that the State would remove the restrictions permanently, keeping the 2013 policy directive in place.  That directive was issued as a result of the earlier preliminary injunction.  The eMedNY Update is available here.


Under Local Laws, 911 Calls Turn Domestic Abuse Victims into ‘Nuisances’

Posted on December 8th, 2014

Al Jazeera America

Nuisance ordinances, designed to curb illegal activity in rental properties, punish survivors of violence, critics say

Read full article


HOSPITAL CARE IN NEW YORK: Enforceability of the Right to Meaningful Language Access

Posted on November 10th, 2011

HOSPITAL CARE IN NEW YORK

Enforceability of the Right to Meaningful Language Access

November 10, 2011

Author: Linda Hassberg

By Bradley J. Schloss 1 and Linda Hassberg

I.    Introduction

Hospitals in New York State are required to provide language assistance to consumers with limited English proficiency (LEP). LEP individuals are unable to communicate effectively in English because their primary language is not English and they have not developed fluency in the English language. 2  This article provides an overview and analysis of the applicable federal and state law and complaint processes challenging violations of the right to meaningful language access available to LEP persons receiving services in New York hospitals.

II.     Enforceability of Title VI

In 1964, Congress enacted the Civil Rights Act to prohibit discrimination in many areas of society. 3  Title VI of the Civil Rights Act prohibits national origin discrimination by agencies and entities that receive federal funding. 4  In 1974, the Supreme Court issued the landmark decision, entitled Lau v. Nichols, which determined that the failure to provide meaningful language access to LEP individuals constituted national origin discrimination.  The Court held that Title VI required the defendant school district to take reasonable steps to provide the plaintiff and other LEP students with a meaningful opportunity to participate in federally funded education programs. 5 The Court found that the United States Department of Health, Education, and Welfare’s (HEW) Title VI implementing regulations and guidelines described the obligation of the school district to take affirmative steps to rectify language deficiencies in order to open instructional programs to LEP students. 6 Since most  hospitals receive federal funding,  the holding in Lau v. Nichols also extends to, a hospital’s failure to take reasonable steps to ensure meaningful access for its LEP consumers.

Unfortunately, the ability of affected individuals to ensure compliance of hospitals and health care providers with the antidiscrimination mandates of Title VI was significantly curtailed by a subsequent  Supreme Court decision.  The question of enforceability of the rights provided under Title VI was addressed in Alexander v. Sandoval 7 , in which a Spanish-speaking woman challenged Alabama’s English-only policy requiring the state driver’s license tests to be administered solely in English. 8  Mrs. Sandoval argued that the policy had a disproportionate consequence on applicants for driver’s licenses who had limited proficiency in English. 9

The Supreme Court held that individuals alleging intentional (or “direct”) discrimination under Title VI  had a private right of action to sue a federally funded agency under §601.  However, the Sandoval Court found no language in Title VI demonstrating Congress’ intent to provide a private right of action under §602, the Section which prohibits disparate (“indirect”) impact discrimination.  In other words, individual claims of Title VI discrimination will be dismissed unless they allege that an agency acted to intentionally discriminate against private individuals on the basis of national origin.  After Sandoval, the only private right of action under Title VI is a claim of intentional discrimination, not disparate impact.

III.     Federal Complaint

Although the Sandoval decision has extinguished the right of private parties to sue for disparate impact discrimination, Title VI regulations and federal funding mechanisms provide alternative means to enforce language access mandates. Pursuant to Title VI, Executive Order 13166 10  requires recipients of federal funds to take reasonable steps to ensure meaningful access to their programs by LEP persons.  To determine whether a recipient has done so, the starting point is an individualized assessment that balances four factors:

  1. the number or proportion of LEP persons eligible to be served or likely to be encountered by the program;
  2. the frequency with which LEP individuals come in contact with the program;
  3. the nature and importance of the program, activity, or service provided by the program to people’s lives; and
  4. the resources available to the recipient and costs. 11

The Executive Order directs federal agencies to provide guidance to their finance assistance recipients regarding language assistance to LEP individuals so that it constitutes meaningful access.

For hospitals, the United States Department of Health and Human Services (HHS) requires the provision of language access as a condition of federal funding.  A patient denied language services by a hospital has the option to file a complaint with the HHS Office of Civil Rights (OCR).

A complaint must:

  1. be filed in writing, either on paper or electronically, by mail, fax, or e-mail;
  2. name the health care or social service provider involved, and describe the acts or omissions, that violated the civil rights laws or regulations; and
  3. be filed within 180 days of when the complainant  knew that the act or omission complained of occurred. OCR may extend the 180-day period upon a showing of “good cause.” 12

Following the filing of a complaint, report, or receipt of other information that alleges or indicates possible noncompliance with Title VI or its regulations, OCR begins an investigation.  If the investigation results in a finding of compliance, OCR will inform the recipient in writing of this determination, including the basis for the determination. However, if a case investigation results in a finding of noncompliance, OCR must inform the recipient of the noncompliance through a “Letter of Findings” that sets out the areas of noncompliance and the steps that must be taken to correct the noncompliance. OCR must attempt to secure voluntary compliance through informal means. If the matter cannot be resolved informally, OCR may secure compliance through the termination of federal assistance after the recipient has been given an opportunity for an administrative hearing. OCR may also refer the matter to the Department of Justice to secure compliance through any other means authorized by law. 13

The following  examples of successfully resolved complaints are taken directly from the HHS web site: 14

  • University of New Mexico (UNM) Hospital (NM) – OCR Region VI resolved a complaint which alleged that a 75-year old Spanish speaking individual was not provided with language assistance services during her medical appointment. In response to OCR’s investigation and provision of technical assistance, the Hospital, a 431-bed facility, took corrective action to improve its language services program, including:
    • revising its limited English proficiency (LEP) policy;
    • coordinating its interpreters and translations through a recently established Interpreter Language Service Department;
    • mandating a staff training program on language services;
    • implementing an interpreter qualification testing and training program;
    • posting signs informing the public of the availability of language assistance services;
    • translating over 900 forms and vital documents; and
    • conducting periodic reviews and monitoring to ensure the effectiveness of language services for LEP persons.

These corrective actions also were implemented at the Hospital’s off-site clinics, as well as the UNM Children’s Hospital, UNM Children’s Psychiatric Center, UNM Adult Psychiatric Center, the UNM Cancer Center, and the UNM Carrie Tingley Hospital.

  • Marin General Hospital (MGH), Greenbrae (CA) – A community advocate on behalf of a Spanish-speaking LEP person filed this complaint against MGH. Marin County has a substantial LEP Latino population. The complaint alleged that MGH discriminated against an LEP individual on the basis of his national origin by failing to provide him with an interpreter during his hospital stay and when given discharge instructions, and that MGH’s failure to provide language assistance to LEP persons denied them an equal opportunity to access MGH’s services.

OCR’s investigation substantiated the allegations in the complaint and as a result of our investigation, MGH has taken substantial action steps to augment services to its LEP patients. In response to OCR’s finding, MGH took the following actions:

  • formed an Interpreter Task Force to enhance its services to LEP patients and visitors;
  • revised its policy on providing language assistance to LEP persons;
  • provided OCR with information on a new program offered by MGH’s parent corporation that determines if willing MGH employees can provide basic and/or medical interpretation for LEP patients and visitors;
  • contracted with a service to provide telephonic interpretation for LEP patients;
  • appointed a translation services coordinator to oversee the facility’s interpretation and translation services; and
  • began monthly training of all new hospital employees on its translation services programs and MGH’s LEP policies and procedures.

Importantly, MGH now determines if a patient is LEP during the admitting process and regularly translates discharge instructions into Spanish for its Spanish-speaking patients. MGH also provided OCR with documentation of multilingual posters; interpreter services notices, and hospital signage available in Spanish.

  • Northwestern Medical Faculty Foundation (NMFF) – Based on reports from advocacy groups, OCR conducted a review of NMFF to determine the extent to which NMFF was providing interpreter services to its patients who are limited in their English proficiency (LEP), and OCR also reviewed NMFF services to persons who are hearing-impaired. In June 2005, NMFF’s president signed two agreements with OCR, one pertaining to NMFF’s services to its hearing-impaired patients and the other pertaining to its services to its LEP patients.  On the LEP issues, the covered entity agreed:
  • to increase patient awareness of the availability of language assistance and increase staff awareness of procedures for providing language assistance;
  • to make changes in its patient tracking system to ensure that if an LEP patient used an interpreter on one visit, the patient would be asked if he or she would require an interpreter on all subsequent visits;
  • to make technological changes helpful in facilitating language assistance;
  • to include the right to interpreter services in the NMFF “Patient Bill of Rights” and provide pamphlets about the availability of interpreter services in all of its doctors’ offices;
  • to train all staff, including its physicians, on their obligations under Section 504 and Title VI; and,
  • to publish pamphlets about the availability of interpreter services that will be prominently displayed in its physician members’ offices.

Based on the descriptions of resolutions procured by HHS after investigation, it appears that a federal administrative complaint can be very effective.  As noted earlier, OCR can refer a complaint to the U.S. Department of Justice for prosecution if it deems the resolution process to be unsuccessful. 15  However, complainants do not have any control over the investigatory process and we were unable to ascertain the length of time it might take for OCR to conduct an investigation and achieve results or make a determination to refer to the Justice Department.

IV.     State Law

Article 28 of NY Public Health Law sets forth the legal obligations of hospitals, residential health care facilities, and other health care providers to their patients. The statute also charges the Commissioner of the New York State Department of Health (NYDOH) with the responsibility of monitoring compliance.  Although the statute itself does not address language access in a hospital setting, the regulations make it clear that meaningful language access is a patient right. 16

Specifically, the Patient’s Bill of Rights requires that:

(7) the hospital shall develop a Language Assistance Program to ensure meaningful access to the hospital’s services and reasonable accommodation for all patients who require language assistance. Program requirements shall include:

(i) the designation of a Language Assistance Coordinator who shall report to the hospital administration and who shall provide oversight for the provision of language assistance services;

(ii) policies and procedures that assure timely identification and ongoing access for patients in need of language assistance services;

(iii) the development of materials that will be made available for patients and potential patients that summarize the process and method to access free language assistance services;

(iv) ongoing education and training for administrative, clinical and other employees with direct patient care contact regarding the importance of culturally and linguistically competent service delivery and how to access the hospital’s language assistance services on behalf of patients;

(v) signage, as designated by the Department of Health, regarding the availability of free language assistance services in public entry locations and other public locations;

(vi) identification of language of preference and language needs of each patient upon initial visit to the hospital;

(vii) documentation in the medical record of the patient’s language of preference, language needs, and the acceptance or refusal of language assistance services;

(viii) a provision that family members, friends, or non-hospital personnel may not act as interpreters, unless:

(a) the patient agrees to their use;

(b) free interpreter services have been offered by the hospital and refused; and

(c) issues of age, competency, confidentiality, or conflicts of interest are taken into account. Any individual acting as an interpreter should be 16 years of age or older; individuals younger than 16 ears of age should only be used in emergent circumstances and their use documented in the medical record.  17

A.    Administrative Complaints

NYDOH provides a complaint process for patients whose rights under the Patient’s Bill of Rights may have been violated. As a first step, the patient should “express complaints about the care and services provided and to have the hospital investigate such complaints.” 18  As a follow up, the hospital must notify the patient that he or she can request a written response indicating the findings of the investigation.

If the patient is not satisfied with the hospital’s response, the patient may file a complaint 19 with the NYDOH’s Office of Health Systems Management. 20  The NYDOH is tasked with monitoring all health providers in New York State and the New York State Commissioner of Health has the power to conduct a comprehensive investigation of any hospital.  Such comprehensive inspection shall include, but not be limited to, a survey to determine compliance by the facility with applicable statutes and regulations, and observation of a representative sample of all patients or residents and their medical records to determine the quality and adequacy of the care and treatment provided. 21

If the commissioner determines that a hospital has violated state public health rules and regulations, then he may levy fines and other penalties. 22  In the event that these penalties do not cure the problem, “the commissioner may institute or cause to be instituted in a court of competent jurisdiction proceedings to compel compliance with the provisions of this article or the determinations, rules, regulations and orders of the commissioner or the council.” 23

B.    Litigation

There is no clear statutory basis for an LEP patient to sue a hospital directly for violation of the right to language access.  Although the statute does not expressly preclude suit by the aggrieved individual who exhausts the complaint process and remains unsatisfied with the results, we were unable to find any state court determination that a hospital had violated the rights of individual complainants established by the NY Patients’ Bill of Rights. 24

VI.     Alternative Strategies

A few legal advocates have had success in changing local hospital policy and culture to become more receptive and responsive to the needs of the  community through a form of social justice advocacy that focuses on organizing, mobilizing, and empowering affected individuals and community groups.  One example of a successful social advocacy emerged from a partnership between Make the Road and New York Lawyers for the Public Interest (NYLPI) in Bushwick, Brooklyn. 25   Using a community lawyering approach, community residents actively worked alongside organizers and lawyers in the day-to-day strategic planning of a campaign to increase meaningful access to health care.

The collaborative effort included a variety of legal and non-legal actions to force hospitals to provide equal access to health services for people with limited English proficiency. 26  Community education workshops were conducted to inform health consumers of their legal rights.  Residents were interviewed and asked to respond to surveys about their experiences at the local hospital.  The advocates compiled examples of incidents from the interviews and survey results involving: inability to communicate with doctors because of a lack of interpreters, failure to provide translations of crucial documents, and poor medical outcomes that could be ascribed to language barriers between patients and hospital staff. 27

NYLPI used the compilation to file two civil rights complaints on behalf of Make the Road.  The organizations then held a press conference to announce the complaints and released their findings to the public and the media. 28  They also engaged in public demonstrations, administrative advocacy, and lobbying that eventually succeeded in getting hospital administrators and employees to address their needs. 29

VII.     Conclusion

Neither federal nor New York State law offer a private right of action to challenge a hospital’s failure to provide adequate language access to LEP individuals. These restrictions severely curtail a traditional legal response to discrimination.  Advocates and aggrieved individuals must instead rely on administrative complaints and the willingness of federal and state agencies to mandate compliance by hospitals through investigation, recommendations for policy and procedural changes, and enforcement in the courts.  Individuals and advocacy organizations can file complaints with either the OCR or with the NYDOH.  However, complainants cannot control the scope or pace of investigation nor decide whether to pursue enforcement if persuasive methods fail.

Social justice advocacy that combines legal action with community and health care provider organizing may offer an alternative that will not only improve hospital services, but empower local community members to demand that their needs be addressed.  The hope is that such advocacy will forge a better relationship between the institution and the community it serves, one that encourages communication and interaction on a variety of issues.

Empire Justice Center is currently exploring these and other alternatives to assist LEP people who have limited legal rights.  For example, staff are collecting and analyzing information from community organizations and health care advocates about a local hospital on Long Island that reportedly is not providing appropriate language access in direct care or ancillary services such as billing,  insurance applications, and charity care to the Spanish-speaking community it serves.  Please contact Linda Hassberg for additional information.

  1.  Bradley Schloss was a 2011 summer law intern at Empire Justice Center on Long Island.  The authors thank Lawrence Antoniello, a volunteer attorney at the Long Island office, for his assistance in editing this article.
  2.  U.S. Dept. of Justice, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 65 Fed. Reg. 50,123, 50,124 (August 16, 2000), available at: http://www.usdoj.gov/crt/cor/Pubs/guidfr.pdf. Federal financial assistance includes grants, training, and use of equipment, donations of surplus property, and any other assistance provided to a recipient agency or to a program or service provided by that agency or entities that receive funding from that agency.  See 28 C.F.R. § 42.102.
  3.  42 U.S.C. §2000d et seq.
  4.  Title VI of the Civil Rights Act of 1964 provides: “[n]o 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 subjected to discrimination under any program or activity receiving Federal financial assistance.”
  5.  Lau v. Nichols, 414 U.S. 563, 566 (1974).
  6.  Id. at 567-68.
  7.  532 U.S. 275 (2001)
  8.  Id. at 278-79.
  9.  Id. at 279.
  10.  Exec. Order No. 13166, 65 Fed Reg. 50,121 (Aug. 11, 2000).
  11.  67 FR 41455
  12. http://www.hhs.gov/ocr/civilrights/complaints
  13. http://www.hhs.gov/ocr/civilrights/resources/specialtopics/lep/finalproposed.html
  14. www.hhs.gov/ocr/civilrights/activities/examples/LEP
  15.  Id.
  16.  10 NYCRR § 405.7
  17.  10 N.Y.C.R.R. §405.7(a)(7)
  18.  10 N.Y.C.R.R. § 405.7(c)
  19.  Complaint form can be found at http://www.health.ny.gov/nysdoh/healthinfo/complaintform.htm
  20.  10 N.Y.C.R.R. § 405.7(b)(23)
  21.  NY CLS Pub Health § 2803(1)(a)
  22.  NY CLS Pub Health § 2803 (3)
  23.  NY CLS Pub Health § 2803(5)
  24.  Actions were brought against the hospitals by patients pursuant to the NY Patients’ Bill of Rights in addition to the Americans with Disabilities Act (“ADA”) and Rehabilitation Act (“RA”). in two federal district court cases.  Loeffler v. Staten Island University Hospital. Loeffler v. Staten Island University Hosp., 582 F.3d 268, 279 (2d Cir. 2009); Walters v. New York City Health Hosp. Corp., 2005 U.S. Dist. LEXIS 1895.  However, the claims were barred or withdrawn for procedural reasons.  Neither court ruled upon the validity of the claim, but the Walters court stated in dicta that the statute did not appear to set forth a private right of action.
  25.  For a detailed description of the Bushwick campaign and an analysis of the strengths and weaknesses of the community lawyering approach, see Rose Cuison Villazor, Community Lawyering: An Approach to Addressing Inequalities in Access to Health Care for Poor, Of Color, and Immigrant Communities, 8 N.Y.U. J. Legis. & Pub. Pol’y 35, 49- (2004-2005).
  26.  Id. at 54-58.
  27.  Id. at 56.
  28.  Id.
  29.  Id. at 58, n. 141.


New York Laws Involving the Confidentiality of Domestic Violence Victim-Related Information

Posted on October 13th, 2011

Address Confidentiality Program for Mail & Service of Process:
Executive Law §108 Statewide Address Confidentiality Program
Effective June 23, 2012, creates an address confidentiality program for receipt and forwarding of mail and for service of process with the NYS Office of the Secretary of State.

Unpublished Sealed Name Change:
Civil Rights Law § 64-a Unpublished Name Change 
Addresses exemption from publication requirements and sealing of court records in judicial name change proceedings.  As part of name change proceedings conducted under Title 60 of the Civil Rights Law, applicants must publish notice of the name change in a newspaper.  Under this section, if the court finds the publication of an applicant’s change of name would jeopardize such applicant’s personal safety, the publication requirements under the law will be waived.  The court also has authority to order the records of name change sealed and only opened by court order for good cause shown or at the request of the applicant.  Further provides for an automatic temporary court order sealing court papers during the pendency of the action where an individual seeks a sealed, unpublished name change under this provision.

Non-Disclosure Of Address Or Identifying Information Court Records:
Family Court Act §154-b(2) Confidentiality of Address 
Addresses confidentiality in Family Court proceedings including child and spousal support, paternity, interstate child support, custody/visitation, family offense, and child protection.  Directs court to authorize any party or the child to keep his or her address confidential from the opposing party in any pleadings or other papers submitted to the court where disclosure of such address or other identifying information would pose an unreasonable risk to the health or safety of a party or the child.  Further, if the party has resided or resides in a residential domestic violence program, the present address of the child, the present address of the party seeking custody, and the address of the domestic violence program cannot be revealed. This section also contains provisions regarding service of process on another designated person or the court.

Domestic Relations Law §254 Confidentiality 
Addresses confidentiality in matrimonial proceedings.  In any proceeding for custody, divorce, separation or annulment, the court can authorize any party or the child to keep his or her address confidential from any opposing party or the child in any pleadings or other papers submitted to the court, where the court finds that the disclosure of the address or other identifying information would pose an unreasonable risk to the health or safety of a party or the child.  Further, if the party seeking custody of the child has resided or resides in a residential domestic violence program, the present address of the child, the present address of the party seeking custody, and the address of the domestic violence program cannot be revealed.  Also contains provisions regarding service of process on another designated person or the court.

Domestic Relations Law §76-h Information Submitted to the Court 
Addresses information to be submitted to the court in interstate child custody proceeding under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  Under this section, a party can request the court order the identifying information or address be held confidential where the health or safety of a party or child would be unreasonably put at risk by the disclosure of identifying information.  Further, if the party seeking custody of the child has resided or resides in a residential domestic violence program, the present address of the child, the present address of the party seeking custody, and the address of the domestic violence program cannot be revealed. This section also contains provisions regarding service of process on another designated person or the court.

Family Court Act §580-312 Non-Disclosure of Information In Exceptional Circumstances 
Addresses nondisclosure of information in Uniform Interstate Family Support Act (UIFSA) cases.  If the court makes a finding that the health, safety, or liberty of a party or child would be unreasonably put at risk by the disclosure of identifying information, the court must order that the address of the child or party or other identifying information not be disclosed in a pleading or other document filed in a proceeding under Article 5-B of the Family Court Act.

Civil Practice Law and Rules §2103-a Confidentiality of Address in Civil Proceedings
Addresses confidentiality in all civil proceedings.  Allows a court presiding over any type of civil proceeding to authorize any party to keep his/her home or business address or telephone number confidential from any other party in the proceeding or confidential in other papers submitted to the court.  The court must determine that disclosure of the address or phone number would pose an unreasonable risk to the health or safety of a party.  If a party has ever resided in a residential domestic violence program or currently resides in one of these programs, neither the party’s address or the program’s address may be revealed. This section also contains provisions regarding service of process on another designated person or the court.

Confidentiality Laws, Regulations And Policies In Domestic Violence Residential and Non-Residential Programs
Social Services Law §459-g Confidentiality 
Addresses confidentiality of residential program’s location, including in funding applications.

18 NYCRR §452.10 Confidentiality
States that records, books, papers, and reports regarding residents of domestic violence programs are confidential and access is appropriate only for authorized individuals for particular purposes.  Also states that the local district office will have access to a residential program’s resident case records, including any resident identifiable information, for purposes of investigating a report of suspected child abuse and maltreatment.

18 NYCRR §452.9(e)(1)-(3) General Operational Standards 
In addition to other provisions, states that licensed residential programs must report suspected cases of child abuse, neglect and maltreatment occurring while a family is in residence or whenever a staff person has reasonable cause to suspect that a child has been abused or maltreated, or when the child’s parent discloses child abuse or maltreatment.

18 NYCRR §462.9 Confidentiality 
States that records, books, papers, and reports regarding non-residential program clients are confidential and access can only be gained by authorized individuals for particular purposes (i.e. the Department of Social Services or other federal/state/local agency, pursuant to court order, other domestic violence programs, residents, persons authorized by the resident).

18 NYCRR §452.9 General Operational Standards 
In addition to other provisions, states that licensed non-residential programs must report suspected cases of child abuse, neglect and maltreatment whenever a staff person has reasonable cause to suspect that a child has been abused or maltreated, or when the child’s parent discloses child abuse or maltreatment.

94 ADM-11 Domestic Violence: Eligibility and Payment for Residential Services for Victims (June 22, 1994)
In addition to other provisions, discusses confidentiality issues including local district access to and disclosure of residential program information, as well as local district access to residents in residential programs.

Temporary Assistance Laws, Regulations and Policies Addressing Confidentiality:
Social Services Law §349-a(7) Procedures to Insure the Protection of Victims of Domestic Violence
Outlines the general state Family Violence Option law and related procedures, including confidentiality.  Addresses the parameters of confidentiality of applicant/recipient information held by the Domestic Violence Liaison (DVL).   Additionally, outlines access to and disclosure of this information to authorized individuals and entities.

Social Services Law §111-v Confidentiality, Integrity, and Security of Information 
Requires the Office of Temporary and Disability Assistance, in consultation with OPDV and other states agencies, to develop regulations that will safeguard confidential information and data.  Among other provisions, safeguards must be in place to prohibit the release of information on the whereabouts of a person who has an order of protection to the person against whom the order was issued.

Social Service Law §459-g Prohibitions on Compelling Victim-Abuser Contact as a Condition of Receipt of Benefits
Prohibits the state, its political subdivisions, public authorities, and employees and agents thereof from compelling domestic violence victims to contact their abusers, directly or for any reason, as a condition of receiving public assistance benefits and services.  Provides for the creation of a confidential intermediary in the event that such contact is required and the victim gives informed, written consent.

18 NYCRR §357.3(i) Basis for Disclosure of Information  
Addresses confidentiality and disclosure of domestic violence-related information by the DVL and other social services staffers.

98 ADM-3: Domestic Violence: Family Violence Option Under the Welfare Reform Act of 1997 (March 13, 1998)
Sets forth the requirements for the implementation of the Family Violence Option.  Reviews the requirements under the new law, including confidentiality issues.

02 INF-06: Clarification of Retention Policy of Domestic Violence Screening Forms and Related Case Records (February 8, 2002)
Clarifies the length of time local districts are legally required to retain universal screening forms indicating the presence of domestic violence, as well as DVL records.

02 INF-36: Family Violence Option Questions and Answers (November 5, 2002) 
Q and A’s in the Appendix address several confidentiality issues related to welfare fraud, mandatory reporting of child abuse and neglect, and inter-departmental access to DVL records.

Insurance Information:
Insurance Law §2612 Discrimination Based on Being a Victim of Domestic Violence
Among other provisions, states that if an insured delivers a copy of a valid order of protection against a policyholder to the insurer, the insurer may not disclose to the policyholder the insured’s address or telephone number or information about covered services.

Telecommunications:
Public Service Law §91 and General Business Law §399-yy Unlisted/Alternative Phone Listings for Victims with Orders of Protection  
Effective December 11, 2010, this new law provides victims with permanent orders of protection a free, unlisted local or cable telephone number or alternative/modified directory listing.  These services are not being mandated under the law and communications companies the option of offering these protective measures to their customers.

Voting:
Election Law §11-306 Special Ballots For Victims of Domestic Violence
Allows a victim of domestic violence to vote by special paper ballot.  Victims who wish to vote in this way must have left their home due to violence and the flight from the home was a result of the threat of physical or emotional harm toward the individual or toward a member of their family or household.

Election Law §5-508 Court Orders Providing for Confidentiality of Victim’s Election Records 
Allows a domestic violence victim to make application to the Supreme Court of the county in which said victim is registered to vote for an order to keep their election registration records confidential.  Where granted, the election registration records must be kept separate from other records and not be made available for inspection or copying except by election officials where such records are within the scope of their official duties and are pertinent and necessary to the performance of their official duties.

HIV/AIDS Confidentiality Regulations:
10 NYCRR §63.4 Filing of reports
Requires information gained from domestic violence screenings to be kept confidential in reports.  Allows for limited disclosure for authorized purposes.

10 NYCRR §63.5 Disclosure Pursuant to a Release
No confidential information related to domestic violence screening, can be disclosed pursuant to a general release except to insurance companies.

10 NYCRR §63.8 Contact Notification
Information collected in the course of contact notification activities, including screening to assess risk of domestic violence, shall be kept confidential.  Outlines limits for disclosures.

Statewide Automated Child Welfare Information (CONNECTIONS) System:
18 NYCRR §466.4 Confidentiality
Information regarding the street address of residential programs for victims of domestic violence must be kept confidential in this system.


Strangulation and Domestic Violence

Posted on November 19th, 2010

Important Changes in New York Criminal and Domestic Violence Law

Strangulation 1 is one of the most potentially lethal forms of intimate partner abuse.  A frequently cited 2001 study found that 10% of violent deaths in the United States were attributable to strangulation and most victims were women. 2  In my previous  direct practice experience, my clients commonly reported strangulation events as one of the many violent tactics used regularly by their abusers.  Research also bears out what victims and legal practitioners already know – strangulation is, alarmingly, quite common in the domestic violence context. Studies indicate that 23% to 68% of female domestic violence victims experienced at least one strangulation-related incident from their abusive male partner during their lifetime. 3

As a power and control tactic, strangulation is tremendously effective for abusers. Victims may believe they are being killed and, as a result, feel deeply and justifiably terrified both during the incident and for a long time afterwards.  As New York’s 2010 strangulation bill sponsors 4 poignantly noted in their justification:

Strangulation and these related offenses epitomize the power dynamic in most domestic violence cases. This is because these acts send a message to the victim that the batterer holds the power to take the victim’s life, with little effort, in a short period of time, and in a manner that may leave little evidence of an altercation. 

The commonality and lethality associated with this behavior in the intimate partner abuse context requires that domestic violence attorneys understand and appreciate the nature of this crime and how to hold offenders accountable.

What Is Strangulation?

To better appreciate the dangers associated with strangulation, it is essential to understand some rudimentary human physiology.  Strangulation is a type of asphyxiation “characterized by a closure of blood vessels and/or air passages of the neck as a result of external pressure.” 5  Ligature strangulation includes the use of any type of cord-like object, such as an electrical cord or purse strap. Manual strangulation may be done with hands, forearms (i.e. the “sleeper hold”), or even kneeling or standing on the victim’s neck or throat.

Research indicates that manual strangulation is the most common form of strangulation used in domestic violence cases. 6 The neck contains bones and cartilage that include the larynx, trachea, and the hyoid bone. 7 Carotid arteries in the sides of the neck are the major vessels in which oxygenated blood travels from the heart and lungs to the brain. 8 Blocking of the carotid artery with external pressure deprives the brain of oxygen.  Jugular veins are the major vessels in the neck that transport deoxygenated blood from the brain back to the heart. 9  Blocking of the jugular vein prevents deoxygenated blood from exiting the brain. 10  Closing off the airways prevents a person from breathing.  Any one, or a combination, of these events can result in unconsciousness. Notably:

In addition to the horror of a strangulation attack, these crimes are also extremely physically painful for victims. Researchers report that the general clinical sequence of a victim who is being strangled is: severe pain, followed by unconsciousness, followed by brain death. 14

Evidence of Strangulation

Evidence of strangulation may include some of the below physical, neurological and psychological signs and symptoms and these may occur concurrently with or after an attack: 15

Attorneys representing victims who have been strangled should direct their clients to obtain medical intervention following an incident to both evaluate the client’s potentially serious medical condition, as well as document injuries.

New York’s 2010 Strangulation Law

Until this year, New York did not have a specific crime that addressed strangulation, unlike several other states.  Strangulation-type conduct was criminalized.  However, despite both the commonality and well-known risk of fatality or serious injury associated with strangulation, victims and advocates reported that these events were often not vigorously prosecuted criminally or civilly for a variety of reasons:

In response to these long-standing concerns, as well as conflicting case law, Senator Eric Schneiderman (S.6987-a) and Assemblyman Joseph Lentol (A.10161-a) introduced a bill during the 2010 legislative session that makes the acts of obstructing the breathing or blood flow and strangulation specified crimes.  The bill was passed by both houses and subsequently signed into law by Governor Paterson on August 13, 2010.  The law went into effect on November 11, 2010.

The New Strangulation Offenses

The new law addresses the unique nature of strangulation and, by adding a new Penal Law (PL) Article 121, creates several misdemeanor and felony level offenses. Called “Strangulation and Related Offenses”, Article 121 establishes three new crimes:  Criminal Obstruction of Breathing or Blood Circulation (PL §121.11), a Class A misdemeanor; Strangulation in the Second Degree (PL §121.12), a Class D violent felony; and Strangulation in the First Degree (PL §121.13), a class C violent felony. 22  The lowest level offense is now a top level misdemeanor with offenders facing up to one (1) year in jail if convicted.  The violent felonies carry even larger penalties.

These laws were also added as enumerated family offenses under both Family Court Act §812 and Criminal Procedure Law §530.11, therefore subjecting them to concurrent jurisdiction under Article 8, mandatory arrest and primary aggressor analysis under Criminal Procedure Law §140.10(4), law enforcement completion of  Domestic Incident Reports at these scenes, and victim entitlement to the Victim’s Rights Notice.

The new crimes are defined as follows:

§121.11 CRIMINAL OBSTRUCTION OF BREATHING OR BLOOD CIRCULATION:  A person is guilty of criminal obstruction of breathing or blood circulation when, with intent to impede the normal breathing or circulation of the blood of another person, he or she: (a) applies pressure on the throat or neck of such person; or (b) blocks the nose or mouth of such person.

§121.12 STRANGULATION IN THE SECOND DEGREE:  A person is guilty of strangulation in the second degree when he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in section 121.11 of this article, and thereby causes stupor 23, loss of consciousness for any period of time, or any other physical injury or impairment.

§121.13 STRANGULATION IN THE FIRST DEGREE:  A person is guilty of strangulation in the first degree when he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in section 121.11 of this article, and thereby causes serious physical injury to such other person.

Section 121.11’s criminal obstruction is the root charge for all three crimes with the felony level offenses being utilized in circumstances where the victim suffered stupor, loss of consciousness, impairment and/or physical or serious physical injury as a result of the strangulation.  In order to successfully prosecute these crimes, the intent to cause a specific type of injury does not need to be proved, but rather the intent to impede breathing or circulation. This is a very critical distinction.  To prove physical injury or serious physical injury for the strangulation felonies, practitioners should gather necessary medical evidence and look to existing case law interpreting these respective evidentiary thresholds and strangulation-specific injuries in this context. 24

In addition to the new strangulation crimes, the law also included quite a few additional amendments. While they are not all detailed here 25, some highlights include:

Evidence Collection Strategies 26

While the immediate priority of law enforcement or medical personnel on the scene of a domestic violence incident should be a focus on the victim’s health and safety after a strangulation incident, it is also equally important to document injuries, property damage or destruction that may have occurred.  To build a case, it is helpful for the victim, the attorney, and/or the responding law enforcement agencies to:

Looking Ahead

Some advocates have argued that separating out new designated crimes, such as strangulation, is unnecessary where the conduct in question is already criminalized and limited prosecution may, in part, be the result of inadequate training.  However, because of their particular nature, some crimes appear to be better suited to their own category of offense.  Stalking is one such example.  In 1992, stalking-like conduct became actionable under both the menacing and aggravated harassment laws.  However, it was soon determined that these existing laws inadequately recognized and addressed the specific dynamics and behaviors related to stalking and state law was comprehensively amended with The Clinic Access and Anti-Stalking Act of 1999. 27  Passage of stalking-specific crimes in this state resulted in widespread legal attention to the issue, as well as additional, and, arguably, more useful, charging options.  Strangulation is similar.

Prior to this new law’s passage, many strangulations in New York were often charged as violations or misdemeanors, despite the fact that it is one of the most notoriously dangerous domestic violence offenses.  While designated state statutes addressing strangulation now give law enforcement and attorneys additional legal tools, more responsive laws still cannot replace good training, thorough investigation, and evidence gathering.  Presently, advocates view these new laws optimistically as a positive step in enhancing victim safety, holding domestic abusers accountable, and preventing domestic homicides.  With time, many hope to see the laws used with regularity.  There is also expectation that designated offenses will increase general awareness of strangulation dangers, including the potential lethality of strangulation, among service providers, attorneys, law enforcement, and criminal justice personnel.  How the new laws will be implemented and interpreted by the courts will be watched closely by advocates statewide and periodically reported on in the Legal Services Journal and the Empire Justice website.

Endnotes

1   Such conduct is often misidentified by service providers, attorneys, and law enforcement as “choking.”  However, “choking” is the internal blockage of the windpipe with a foreign object, such as food.  “Strangulation” is the external obstruction of another’s breathing or blood circulation either manually or with the assistance of a ligature or other device.
2   Women were victims of strangulation at a rate of 6:1 versus men.  Gael B. Strack, J.D., George E. McClane, M.D., Dean Hawley, M.D., “A Review of 300 Attempted Strangulation Cases, Part I: Criminal Legal Issues”, The Journal of Emergency Medicine, Vol. 21, No 3, pp. 303-309 (2001).
3   L. Wilbur, M. Highley,  J. Hatfield, Z. Surprenant, E. Taliaferro, & D.J. Smith, “Survey Results of Women Who Have Been Strangled While In An Abusive Relationship”, The Journal of Emergency Medicine, Vol. 21, pp. 297-302 (2001);  D.C. Berrios & D. Grady, “Domestic Violence: Risk Factors and Outcomes”, Western Journal of Medicine, Vol. 155, pp. 133-135.
4   A.10161-a (Lentol); S.6987-a (Schneiderman).  Notably, there were numerous strangulation-related bills introduced in the NY legislature during the 2009-2010 session.
5   Gael B. Strack, J.D. and George E. McClane, M.D., How to Improve Your Investigation and Prosecution of Strangulation Cases (May 1999).
6   Strack at EN 2.
7   Strack & McLane at EN 5.
8   Id.
9   Id.
10  Id.
11  Id.
12  Id.
13  Id.
14  Id.
15  Id.
16  Id.  The authors also noted that while breathing changes may appear initially mild, underlying injuries have the potential to kill the victim where injured structures decompensate up to 36 hours or more following an incident.
17  Strack at EN 2.
18  Penal Law §10.00(9).
19  Penal Law §10.00(10).
20  For example, see People v. Felipe, 66 A.D.3d 919 (2002)(evidence established that in addition to other injuries sustained in the attack, the victim reported strangulation that resulted in loss of consciousness for 20 to 25 minutes, as well as pain in his hands, body, and neck and this was sufficient to prove physical injury); People v. Cannon, 300 A.D.2d 407 (2002)(complainant testified that he was strangled, and as a result, temporarily lost consciousness, was unable to eat any solid foods for two days, and had a pain in his neck and his throat that persisted for approximately 7-8 months and this was sufficient to establish physical injury); People v. Pettine, 50 A.D.3d 1517 (2008) (evidence sufficient to show physical injury where complainant suffered severe back pain for more than 2 weeks, as well as severe pain in her throat and jaw and difficulty swallowing lasting 1 1/2 to 2 weeks); People v. Bruno, 47 A.D.3d 1064 (2008) (evidence that defendant choked the victim to the point where she could not speak or breathe, went numb and suffered from impaired vision, as well as threatened to kill her, supported the conclusion that he intended to cause serious physical injury); People v. Delph, 269 A.D.2d 218 (2000) (evidence that defendant choked complainant for 1-2 minutes, compressing her windpipe from behind and rendering her nearly unable to hear or see, established that she suffered physical injury); but see People v. Lewis, 294 A.D.2d 847 (2002)(evidence insufficient when victim was strangled  leaving red marks, but failed to receive medical treatment or testify to pain).
21  For example, see “Bath Man Accused of Hitting, Binding, Choking Woman”, Elmira Star-Gazette, October 12, 2010 where alleged accuser was charged with harassment in the second degree after allegedly dragging the complainant from a car by her hair, holding her down, binding her hands behind her back with electrical tape, and then strangling her with the strap of her purse.
22  The law also establishes an affirmative defense applicable only when such strangulation-type conduct is purportedly for a valid medical or dental purpose (PL §121.14).
23  Per Merriam-Webster’s online medical dictionary, stupor is characterized by “a condition of greatly dulled or completely suspended sense or sensibility; specifically : a chiefly mental condition marked by absence of spontaneous movement, greatly diminished responsiveness to stimulation, and usually impaired consciousness.”  http://www.merriam-webster.com/medlineplus/stupor24 See FN 20.
25  To see the entire law, see L.2010, ch.405.
26  Modified from the investigation checklist detailed in Strack & McClane in FN 5.
27  L.1999, ch.635, §2


“Fair Access” to Civil Orders of Protection: A Progress Report One Year Later

Posted on January 16th, 2010

To victims of intimate partner violence, civil orders of protection represent one of the most sought after and useful legal remedies available to help provide protection from abuse.

In a 2003 study reported in the Journal of the American Medical Association, individuals with permanent civil orders of protection experienced a significant decrease in the risk of police-reported domestic violence from their partners.1 Many victims indicate a preference for civil protection relief citing, among other things, the desire for basic protection from their abusers, rather than criminal punishment.  Some are reluctant to proceed in the criminal system  because they have a negative history of experiences with police or prosecutors, while others may have concerns about prosecution in cases not involving injury and serious abuse.  Further, many victims rightfully fear ongoing retaliation from their abuser if he or she is arrested and charged with a crime.

In New York, the primary issuer of civil orders of protection is the Family Court under Article Eight.  In this  forum, petitioners have:  access to Probation Departments, court staff or trained court-based victim advocates who can assist with petition-drafting;  the aid of domestic violence or victim advocates who provide support and information as victims navigate the civil system;  their case quickly heard by a decision-maker, often within 24 hours of filing a petition; the right to counsel; a lower burden of proof for non-violation proceedings; no filing fees;  availability of comprehensive order of protection terms and conditions customized to meet the petitioner’s needs; and access to attorneys for the children when warranted.  For many victims, the ability to have significant input in the direction of their civil case is quite meaningful and provides for improved safety planning and, in some cases, more effective outcomes.

Until 2008, the Criminal Procedure Law §530.11 and Family Court Act §821 defined “victim of domestic violence” as a victim of an enumerated family offense alleged to have been committed  between spouses or former spouses, between parent and child, or between “members of the same family or household”.  Members of “family or household” was then further defined as persons related by blood or marriage, persons legally married or formerly to one another, and persons who have a child in common regardless of whether such persons have been married or have lived together at any time.  As a result, abuse victims in current or former dating and co-habiting intimate relationships were specifically denied access to relief. This law impacted all dating couples without children in common, including many teenage victims.

According to data from one State Division of Criminal Justice Services (DCJS) report, at least half of all domestic violence incidents reported involved non-familial victims of dating violence.2  Notably, this also served to exclude most victims from New York’s gay, lesbian, bisexual and transgender (GLBT) communities because of their collective legal relationship recognition impediments and challenges.  Unfortunately, the exclusionary impact of this limited definition extended well-beyond simple access to civil orders of protection. This same class of victims was also denied access to a host of other critical domestic violence laws that specifically referenced this legal definition of “victim of domestic violence” including mandatory arrest requirements, primary aggressor determinations, criminal family offense orders of protection, law enforcement completion of Domestic Incident Reports at the scene, victim’s rights notices, and concurrent jurisdiction for family offenses in Criminal and Family Courts.  Despite the number of cases pending in other courts, these same domestic violence victims were unable to access the more resourced Integrated Domestic Violence Courts. They were also less likely to be identified as appropriate for other specialized criminal domestic violence courts throughout the state.

Further any other law, regulation, or policy that referenced the Family Court Act or Criminal Procedure Law definition would continue to exclude this class of victims from protection.  This issue became increasingly divisive in the state Legislature.  In the mid 2000s, the progress of important domestic violence bills, such as those providing protection against housing or employment-related discrimination for victims of intimate partner abuse, was thwarted over bicameral disputes regarding which definition of “victim of domestic violence” should be used.  In fact, the first passage of the early lease termination law 3 for domestic violence victims in 2007 did not include protections for this class of victims and, ultimately, resulted in a later chapter amendment specifically rectifying this oversight.4

In defining who is or is not a “victim” and who may or may not have access to critical systems, benefits, and rights, this law created other serious collateral consequences for this class of victims. The inability to have one’s victimization “qualify” intensified existing barriers to support and assistance and further marginalized particular communities.  Further, where a law or benefit required proof of an order of protection as a condition for relief, victims relegated to obtaining their order in the more challenging criminal system might be less likely to access those important protections as well. 5

Given our restrictive definition, New York had the unfortunate reputation of being the only state in the nation with such narrow access to a civil order of protection. 6  For 20 years, the domestic violence community continuously lobbied the Legislature to rectify this dangerous gap and provide relief and protection to the true scope of victims experiencing intimate partner violence in New York. The Assembly first introduced the bill in 1988 and it was passed with bi-partisan support every year it was voted on since 1991.  However, the same bill was not even introduced in the Senate until 2001 and, despite its multiple passages in the Assembly, was never placed on the Senate floor for a vote.

As years passed, there was increasingly broad support for expanding this definition including in the 2006 Matrimonial Commission Report, the 2001 Final Report to the Governor and the Legislature on the Family Protection and Domestic    Violence Intervention Act of 1994: Evaluation of the Mandatory Arrest Provisions, the 2000 Probation Domestic Violence Intervention Project, the 1998 Model Domestic Violence Policy for Counties, and the 1997 Commission on Domestic Violence Fatalities Report to the Governor.

Labeling the issue as one of justice, safety, and unequal treatment under the law, the Fair Access Coalition was formed in 2007.  Over 190 individuals and organizations strong, the Coalition embarked upon a singular goal–an intensive, multi-disciplinary and multi-faceted campaign to achieve passage of the bill. After significant direct and grass-roots lobbying efforts, the bill finally passed both the Assembly and Senate in 2008.  Governor Paterson signed “Fair Access” into law7 and it became effective on July 21, 2008.

The so-called “Fair Access” law retains the existing Family Court Act and Criminal Procedure Law definitions, but further expands upon “family and household member” to include “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time.” 8  The law further describes an “intimate relationship” as something more than “a casual acquaintance” or “ordinary fraternization between two individuals in business or social contexts.” 9  The Legislature declined to specifically define “intimate relationship” but provided a non-exclusive list of factors a court could consider to help determine whether an “intimate relationship” including:  “the nature or type of the relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship.” 10  The legislative history indicates that the Legislature intended to extend protections to assist co-habiting, same-sex, and dating couples. 11  However, given the fact-based approach to determining an “intimate relationship”, case law is further interpreting this definition. To date, seven (7) cases have been decided in jurisdictions throughout the state and the holdings are surprising and varied.

In K.V. v. K.F, a 2008 case of first impression, the court held that the amendment was remedial in nature and could be applied retroactively to conduct that occurred prior to its enactment.
However, the K.V. court did not specifically determine whether the parties’ relationship—allegedly ex-girlfriend and ex-boyfriend—was “intimate” in nature.

Several months later, two Family Court courts broadly read the statute to find an “intimate relationship” existing between two women who share a current and former boyfriend in common, 12 as well as between a biological mother and the child she gave up for adoption.13

In April 2009, two more courts weighed in on the issue.  In Maria B. v. NDoc S., 14 the New York Family Court held that a former daughter-in-law may be able to establish she is in an “intimate relationship” with her former father-in-law where there is a grandchild in common and her former husband lives with her respondent former father-in-law.  In Madison County, Judge Dennis McDermott issued a highly unusual opinion determining that a married petitioner in an adulterous relationship with her alleged abuser indeed met the statutory jurisdictional definition of “intimate relationship.” 15  Disturbingly, however, the petition was dismissed for reasons of public policy as the court believed that allowing such a married, heterosexual woman access to civil Family Court relief would undermine the sanctity of her marital relationship and further disrupt her family unit.16

In August 2009, two more Family Courts weighed in via Mark W. v. Damion W. (887 N.Y.S.2d 822 [Kings Co. Fam. Ct. 2009]) and Winbrone v. Winn (8/20/2009 N.Y.L.J. 30 [col.1]).  In both cases, fathers petitioned the respective Family Courts for protection from the live-in boyfriends of the mothers of their children.  However, as opposed to the holding in R.M.W, these courts instead determined that regardless of the relationship between the fathers and mothers, no “intimate relationship” existed between fathers and the mothers’ boyfriends.17

As of mid-October, approximately 13% of all Family Court family offense filings statewide were identified as “intimate relationships”.  Troublingly, as of mid-October 2009, 19 counties around the state reported less than 15 total intimate relationship family offense petitions filed since the law’s passage in July 2008.  This indicates that there may be a significant lack of public awareness, advocacy, and system training in quite a few communities.

There has been no published case law directly interpreting the definition’s applicability to either GLBT or teen couples thus far.  This is not entirely surprising.  As of mid-October, same-sex relationships made up a very small percentage of total    intimate relationship filings in Family Court–approximately 4% since the Fair Access legislation took effect.  It is also not clear whether teen dating relationship statistics are being formally monitored and tracked by Office of Court Administration, so there is little known about number of cases commenced and their outcomes.  Anecdotally, domestic violence attorneys and advocates from service provider communities consistently report that more public awareness is necessary to help GLBT and youthful citizens understand their rights under the new law.

Given the Fair Access law’s expansion of protection beyond civil orders of protection, the law also provided for the New York State Office for the Prevention of Domestic Violence (OPDV) to develop a curriculum and make training available for Criminal and Family Court judges, local justice and district courts, prosecutors, and veteran police officers. While this provision was intended to support implementation, the law’s passage in the midst of New York’s fiscal budget crisis has made statewide and comprehensive trainings for the civil and criminal justice system extremely difficult. There is definite concern among advocates that, absent long-overdue police refresher trainings around mandatory arrest and primary aggressor determinations, victims with abusive intimate relationships may be increasingly subject to wrongful or dual arrest by police. Additionally, numerous probation departments in the state are responsible for drafting the lion share of family offense petitions in their respective communities and it is not clear that these important system players also have access to staff training.

Alarmingly, this change in the law also coincided with significant funding insecurities for civil legal services offices who would otherwise be poised to handle a larger percentage of these cases in civil court. Access to competent and sensitive counsel for this new population of clients is critical to ensuring an effective and appropriate outcome, so timing of this funding crisis is particularly unsettling.

Expanding access to the courts and providing other critical domestic violence protections was a long time coming in New York. The law further directed OPDV and DCJS to complete a report to the Legislature and the Governor within 3 years  regarding the law’s implementation. Surely the formal results of such a report will help our state to identify and, ideally, rectify gaps in justice and service provision. As the next two years unfold, we look forward to learning more.

Footnotes

1  Holt, Kernic, et al, “Civil Protection Orders and Risk of Subsequent Police-Reported Violence”, JAMA, Vol. 26, No. 5, 589 (August 7, 2002)
2  Introducer’s Memorandum of Support, Senate Bill S.8665
3  L.2007, c. 73, §  1, eff. Oct. 1, 2007
4  L.2007, c. 616, §  1, eff. Oct. 1, 2007
5  See, for example, Real Property Law §227-c (early lease termination), Insurance Law §2612 (confidentiality of insurance information) 42 USCA §13951, 39 CFR §265.6(D)(1) (confidentiality of address with US Postal Service)
6  In 2008, 40 other states offered civil orders to dating or intimate partners and 49 other states offered civil orders to co-habitants. For a detailed list of all states, see  http://www.abanet.org/domviol/pdfs/dv_cpo_chart.pdf (last visited December 21, 2009)
7  L.2008, c. 326, eff. Jul. 21, 2008
8  FCA §812(1)(e)
 Id.
10  Id.
11  Winbrone v. Winn, 8/20/2009 N.Y.L.J. 30 (col.1)
12  R.M.W. v. G.M.M., 23 Misc.3d 713 (Nassau Co. Fam. Ct. 2009)
13  K.J. v. K.K., 23 Misc.3d 754 (Orange Co. Fam. Ct .2009)
14  4/10/2009 N.Y.L.J. 27 (col. 1)
15  Jessica D. v. Jeremy H., 24 Misc.3d 664, 666 (Madison Co. Fam. Ct. 2009)
16  Id. at 666-667
17  Mark W. supra at 824; Winbrone, supra.