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Memo of Support – NYS Department of Financial Services Private Education Debt Registry

Posted on November 30th, 2023

Memorandum of Support 

NYS Department of Financial Services Private Education Debt Registry

A.5286 (Epstein)/S.5056(Thomas)

We recommend you view the PDF Here

 

Empire Justice Center strongly supports A.5286/S.5056 which requires all private education creditors operating in New York State that are not already licensed or chartered by the Department of Financial Services (DFS) to annually submit information on their private education debt activity. Unlike federal student loans, private loans do not have consistently available data related to trends in originations, terms and conditions of debts, demographics of borrowers, default rates, etc. Making information about private and other student loan debt of New Yorkers available to policymakers and the public instills transparency and will lead to a better understanding of what New Yorkers are dealing with to inform regulations and ensure student debt borrowers are adequately protected.

 

Information about New Yorker’s federal student loan debts and borrower wellbeing are readily available from the federal government.1 Little is known, however, about the privately held education debts that New Yorkers owe. These debts may take the form of traditional student loans made by Wall Street banks, or may be shady financial products made by predatory lenders. Still, other debts are owed directly to the schools that students attend. The State currently has no comprehensive data about what entities own these debts, how much is owed, the paperwork and process by which they accrue, or the variety of collection practices borrowers experience.

 

A. 6/S.5056 would remedy this problem by requiring lenders and owners of these private education debts to annually report on their portfolios and collection practices to DFS and would cover both traditional private “student loans” and less traditional private “education debts” that do not take the form of a The reporting requirements are basic, including data related to:

 

Importantly, nothing in the bill would change any industry practices. It is merely a sunlighting bill to ensure that New York State policymakers and the public have the data they need to determine what additional policy interventions may be appropriate.

 

1 U.S. Dep’t of Educ., Federal Student Loan Portfolio by Borrower Location (Sept. 30, 2022), https://studentaid.gov/data-  center/student/portfolio (select “Portfolio by Location”).

 

Private education debts, which may take the form of credit or a past-due account at a student’s school, have real ramifications on New Yorkers’ lives. Although the State lacks comprehensive data about these debts, education debt creditors’ collection tactics reflect the severity of low-income New Yorkers’ struggles in this industry. Across the country and in New York, creditors are flooding state courts with debt collection actions. Non-loan education debts are also susceptible to collection activity. (The NYS Office of the Attorney General routinely files cases on behalf of the State University of New York system.) These debts may be loans owed to the school but may also be the result of financial aid packages falling apart, library fees, or even unpaid parking tickets. Schools themselves take action to collect these private education debts, both in and out of court.

 

Empire Justice Center is a statewide legal services organization that provides support and training to legal services and other community-based organizations and engages in legislative and administrative advocacy. We work on a range of consumer law issues including higher education and student lending.   In 2022, Empire Justice Center joined Community Services Society of New York’s Education Debt Consumer Assistance Program (EDCAP) and hired a student debt counselor to provide free, unbiased, one-on-one counseling to borrowers in the Capital District. We do a significant amount of outreach to get the word out about our services; the data mandated by A.5286/S.5056 will enable us to better target our outreach and reach more people to prevent consumer abuse.

 

One client we counseled owed approximately $132,000 in Parent PLUS loans with the U.S. Department of Education for her daughter. She was a state employee for almost eight years and was actively working towards Public Student Loan Forgiveness (PSLF). The client’s daughter stopped paying her portion of the monthly payment. In August 2022, a private lender advised the client to refinance with them to lower  her monthly payment. Due to a lack of education on private student loans and predatory lending tactics, the client co-signed the new private loan, which put her in a far worse financial position: the client lost  all of her credit towards PSLF, made herself ineligible for income-driven repayment plans, and prematurely put herself back into repayment after being in the COVID-19 forbearance.

 

Current New York State law does not require private student loan companies, including loan originators and subsequent purchasers of debt, to be licensed by the state unless the interest rate on the loan exceeds 16 percent, which is not common in student lending. This means that most private student loan companies are not regulated or otherwise overseen in any way by New York State. School-based private education debts, too, generally operate below the radar of financial regulators and policymakers  because all the data is held exclusively by the schools who own and collect these debts.

 

Student debt ranks second (to mortgage debt) as the largest current form of debt in the U.S. and it is rapidly growing. As a simple sun-lighting bill, A.5286/S.5056 will provide regulators, policy makers and the public a more accurate picture of the amount and nature of student debt owed by New Yorkers by requiring private education loan companies and schools to provide information using a uniform reporting about the debts they create, hold, and collect. The bill will not change these companies’ practices, and merely instills transparency leading to more informed decision-making for regulators and lawmakers.

 

For these reasons, Empire Justice Center strongly supports the passage of A.5286/S.5056 into law. This bill is a non-invasive and common sense approach, leading to better knowledge and information regarding student loan debt issues in New York State.


MEMO OF SUPPORT: Addressing Skimming of Public Benefits

Posted on April 28th, 2023

Read the full memo here.


MEMO OF SUPPORT: Kinship Legal Network

Posted on March 28th, 2023

Read the full memo here.

 


MEMO OF SUPPORT: Require Timely State Registration of Non-Profit Contracts

Posted on March 23rd, 2023

Read as a PDF here.

Memorandum of Support

Require Timely State Registration of Non-Profit Contracts

S.4877 (Mayer) / A.2740 (Paulin)

 

Empire Justice Center strongly supports this legislation that would require the state to register contracts with not-for-profit agencies within 30-days of the start date of the contract.  The bill requires state agencies to register contract renewals with not-for-profit organizations within 30-days of the start date of the renewed contract.  Lastly, the measure clarifies the definition of “registered contract” to mean a contract signed by the state agency, countersigned by the not-for-profit entity, and sent to the Attorney General’s Office for approval.

 

The pressures of rising inflation are also being felt deeply by our organization, which has a direct affect on our ability to serve clients.  It is increasingly difficult for our sector to recruit and retain staff when budgets are uncertain and without consistent cost of living adjustments built into state contracts.  These delays directly impact our ability support our staff via salary increases for current staff and hampering our ability to be competitive with salaries to recruit attorneys, paralegals, and other vital staff.  In turn, these factors complicate our ability to maintain robust service levels for our clients, who are often in crisis and can’t wait weeks or months for assistance.  For example, if new funding was provided to organizations to hire new eviction defense staff, but a contract is delayed by six months, a provider may not be able to hire and front the salary cost in that period, or if available, use a line or credit or take out a loan from their bank to do so. During that time, the organization is either turning away dozens of tenants in need of assistance or racking up interest costs that will never be reimbursed by the state and will have to be paid in some other way.  For a variety of reasons, many of our providers operate on a tight margin, making either prospect deeply problematic.

 

This legislation would go a long way to help provide our community and the greater human services non-profit sector with reassurance when budgeting.  These modest changes will directly allow community-based organizations to provide state contracted services more seamlessly to our most vulnerable, and better plan for growth and enhancement in services.

 

Please contact Kristin Brown: kbrown@empirejustice.org


MEMO OF SUPPORT: Remove Barriers to Access to Justice Certain Civil Proceedings (S.5162)

Posted on March 13th, 2023

Read as PDF here.

 

Memorandum of Support

 

Remove Barriers to Access to Justice Certain Civil Proceedings   

S.5162 (Hoylman-Sigal) 

 

Empire Justice Center strongly supports this legislation that will remove significant barriers to access to justice for low income New Yorkers especially in housing, civil and family court matters. This bill would amend CPLR 2106 to allow litigants in civil cases to swear to a statement under penalty of perjury without having to notarize the document.

 

The notary requirement is an outdated burden to access to justice in civil proceedings. There is no evidence that notarization increases the truth of statements made. Under Federal Law and in more than 20 states unsworn and unnotarized declarations are accepted as long as they include a statement that the document is true under penalty of perjury.  The notarization process became more onerous during COVID: Litigants who do not have a lawyer have to pay a notarization fee, spend time and money to find a notary, take time off work, and travel to the notary.

 

Having an attestation process would eliminate multiple barriers, supporting clients who are going through the already challenging process of changing name and gender markers and saving time and money.

 

For example, a client of Empire Justice Center, K, had an expired driver’s license, and was not able to get her name change petition notarized at her local bank, despite having the expired driver’s license, social security card, and birth certificate. The attorney working with her had to drive approximately 50 miles notarize her petition.

 

Another client, A, did not have transportation and was too nervous to meet at Empire Justice Center’s office to get the petition notarized, resulting in a delay of several months. Our name change clients also mainly have ID documents that do not match their match their gender identity or expression, which creates anxiety for them in producing the documents, so they prefer for either their attorney or someone from Empire Justice Center to notarize for them. This can result in delays if they are far from the office.

 

Requiring a notary disproportionately affects low-income and unrepresented individuals, especially communities of color and deepen the digital divide. The “opportunity” to notarize court documents remotely only works for those who have access to the internet and necessary technology, and are digitally literate.

 

  1. Low-income litigants do not have printers, scanners, fax machines or computers
  2. Many cannot pay the expenses needed to electronically submit a notarized statement.
  3. Many lack the digital skills to navigate the internet, equipment and tools required for remote notarization.

 

We urge immediate passage of this bill.

 

March 10, 2023

For more information: kbrown@empirejustice.org

 

 


MEMO OF SUPPORT: New York State Working Families Tax Credit

Posted on February 27th, 2023

You can read the PDF here.

Memorandum of Support

S.277-A (Gounardes) / A.4022-A (Hevesi)

Creating the New York State Working Families Tax Credit

 

Early Returns from Empire Justice’s Tax Prep Program Show

Critical Need for Working Families Tax Credit

 

February 27, 2023

 

We write in support of S.277-A (Gounardes) / A.4022-A (Hevesi), which would create the New York State Working Families Tax Credit, and would help lift New York children out of poverty, and help their families meet their basic needs, like clothing, gas, childcare, rent, and food.

 

While national reports state that tax returns are expected to come in approximately 11% less than last year[i], we are seeing an even more stark difference for our clients. Empire Justice Center’s CASH (Creating, Assets, Savings and Hope) program provides free tax preparation for low-income people in Rochester, NY. In the first few weeks of tax return preparation this year, we are seeing approximately a 50% reduction in the average amount of federal returns.

 

Data from Empire Justice Center’s CASH program in Rochester, NY
Total Returns Prepared Total Federal Refund

for Clients

Total Child Tax Credit/

Advance Child Tax Credit

TY2021 TY2022 TY2021 TY2022 TY2021 TY2022
In Tax Preparation

weeks 1-4

852 954 $2,578,549 $1,946,719 $999,598 $666,460

 

The average federal return for CASH clients in Tax Year 2021 was $5,437.55; the current federal average return for CASH clients for the first four weeks is $2,040.58 – this includes a greater than 30% reduction in Child Tax Credits within overall total returns, despite the fact that we have seen 12% more clients this year than at this time last year. In real numbers, that means $630,000 that is not in our clients’ pockets, to help them meet their basic needs and provide for their children. These changes are directly connected to changes in tax law that include Child Tax Credit, and it makes it all the more urgent that New York take steps to amend the tax code to help lift families out of poverty.

 

About the Bill

This bill combines and strengthens two existing refundable tax credits: the Empire State Child Credit (ESCC) and state Earned Income Tax Credit (EITC), creating one more inclusive and generous Working Families Tax Credit (WFTC). For individual New Yorkers and families currently eligible for the ESCC, EITC, or both, the combined credit they would receive from the WFTC would be greater, or equal to the total of the two credits. For the lowest income, and many immigrant New Yorkers, the credit amount would be greater under the WFTC.

 

The WFTC credit builds upon the strengths of New York’s ESCC and EITC, and corrects their shortcomings.

 

The WFTC is structured to have greater poverty-reduction impact than existing credits, adopting characteristics of the temporary pandemic expansion of the Federal Child Tax Credit in 2021, an expansion that contributed to reducing child poverty nationally by 46% to a record low of 5.2%.[ii] Since the federal CTC expansion ended in 2022, 3.7 million children around the nation have been plunged back into poverty.[iii]

 

With New York’s child poverty rate persistently higher than the national average,[iv] it is essential for New York to prioritize policies proven to reduce child poverty like the robust, targeted, fully refundable WFTC. It is estimated that the NYS WFTC will result in a 13.4% reduction in children under the age of 18 living in poverty, with a 19.6% reduction for those under 18 living in deep poverty.[v]

 

About Empire Justice Center

Empire Justice Center is a nonprofit law firm that seeks to make the law work for all New Yorkers, especially those who need it the most.  We do so by identifying critical issues, developing and implementing creative solutions and monitoring ongoing results. Our staff has protected and strengthened the legal rights of people in New York, especially historically marginalized communities, for more than forty years. We do this through three major service areas.  We teach the law by providing training, support and technical assistance to legal services and private attorneys and other community-based advocates to help them better serve their clients. We practice the law by providing direct civil legal assistance and undertaking impact litigation. And we improve the law by engaging in policy analysis, research and advocacy.

 

 

[i] Kiplinger, Why Your Tax Refund Might Be Lower This Year.

https://www.kiplinger.com/taxes/taxes/why-your-tax-refund-might-be-smaller#

[ii] Child Poverty Fell to Record Low 5.2% in 2021 (census.gov)

[iii] Center on Poverty & Social Policy at Columbia University. 3.7 million more children in poverty in Jan 2022 without monthly Child Tax Credit. https://www.povertycenter.columbia.edu/news-internal/monthly-poverty-december-2021

[iv] Throughout the last decade, New York’s rate of child poverty has exceeded that of 29 or more states every year. https://datacenter.kidscount.org/data/tables/43-children-in-poverty?loc=34&loct=2#ranking/2/any/true/867/any/322

[v] Analysis conducted by the Center on Poverty & Social Policy at Columbia University


MEMO OF SUPPORT – Facility Fees Reform Bill

Posted on April 26th, 2022

Protect Patients from Unreasonable Facility Fees (S2521C/A02470C)

Empire Justice Center is a statewide, multi-issue, multi-strategy non-profit law firm focused on improving the “systems” within which poor and low-income families live. With a focus on poverty law, Empire Justice Center undertakes research and training, acts as an informational clearinghouse, and provides direct representation and support to local legal services programs and community-based organizations. As an advocacy organization, we engage in legislative and administrative advocacy on behalf of those harmed by poverty and discrimination. As a non-profit law firm, we provide legal assistance to those in need and undertake impact litigation in order to protect and defend the rights of disenfranchised New Yorkers. The health law team is dedicated to ensuring access to quality, affordable health coverage for all New Yorkers. Empire Justice Center strongly supports S2521C/A02470C, which would ban facility fees for all preventive care and require a hospital to inform a patient, in advance, when they will be charged one.

Increasingly, hospitals are acquiring medical practices and labs and then charging patients outlandish “facility fees” when they use these services. One patient was charged a $142 “facility fee” when her newly-affiliated-with-a-hospital doctor sent her for her annual preventive mammogram – which should be FREE! Patients should not be charged excessive and surprise fees for medically necessary care.
This important bill would inform patients of a facility fee in advance of being charged the fee by a medical practice affiliated with a hospital. It would also prevent a fee from being charged for preventive services entirely. A facility fee is not a medical service: it is simply an “add on” overhead charge that is imposed when a medical practice becomes affiliated with a hospital. Currently, patients are not informed of these charges prior to seeing a bill. Consequently, patients are shocked when they mysteriously find a $150-$250 facility charge on their bills months after seeing a medical provider. Insurance companies often do not pay facility fee charges – leaving patients stuck with them.

It has come to our attention that some medical associations claim that telling patients about their facility fees would constitute an “onerous burden.” But what is the alternative? These providers are the only human interaction that a patient has with the medical system. If the provider doesn’t inform a patient about the facility fee charge, who will? Patients have a right to know about this secret fee in advance of their imposition by the provider, or the hospital with which they have chosen to affiliate.

For these reasons, Empire Justice Center supports S2521C (Facility Fees Reform) and we urge you to enact it in order to protect patients from the medical debt attributable to these hidden charges.

Alexia Mickles, Esq.
Staff Attorney, Health Law Unit
Empire Justice Center
1 West Main St, Suite 200
Rochester, NY 14614
amickles@empirejustice.org
(585) 295-5736

Fiona Wolfe, Esq.
Senior Attorney, Health Law Unit
Empire Justice Center
1 West Main St, Suite 200
Rochester, NY 14614
fwolfe@empirejustice.org
(585) 295-5804


MEMO OF SUPPORT – Patient Medical Debt Protection Act

Posted on January 10th, 2022

 

Memorandum in Support of S6522|A7363

Patient Medical Debt Protection Act

Prohibition of Medical Providers from Filing Liens and Wage Garnishments on Patients

January 2022

An Act to amend the civil practice law and rules to protect New Yorkers from unfair liens and wage garnishment in medical collection cases

 

For more than 30 years, Empire Justice has worked to protect and strengthen the legal rights of people in New York State who are poor, disabled or disenfranchised. Our mission is to make the law work for all New Yorkers, particularly for those who need its protection most.

 

We support S6522/A7363, which would protect patients from extreme medical debt collection practices in which health care providers file liens on patients’ primary residences and garnish 10 percent of their wages after a medical debt judgment.

 

New Yorkers struggle with health care costs, even when they have insurance.[1]  Over 52,000 New York patients have been sued for medical debt by non-profit hospitals in the past five years—4,000 during the COVID-19 pandemic (March – December 2020).  Eight percent of New Yorkers have delinquent medical debt that appears on their credit reports. The problem is most pervasive upstate: in Oswego County, this increases to 23% of residents, and there are 16 other upstate counties where between 16 and 23% of residents have an adverse credit entry for delinquent medical debt.[2]  Medical debt is strongly associated with housing instability, and even homelessness.[3]  Communities of color in New York more than twice as likely to have medical debt than their white counterparts in counties like Westchester, Erie, Monroe, Onondaga and Albany.[4]

 

All hospitals in New York State are not-for-profit institutions who do not pay state or local taxes and collectively receive $1.1 billion to help offset their losses for providing uncompensated care to low-income uninsured New Yorkers.  Roughly one-third of hospitals sue patients for medical debt. Hospitals report to the Department of Health that they secure approximately 2,400 liens against patients’ homes annually.[5] Research indicates that patients whose wages are garnished work low-wage jobs in retail, big box stores, manufacturing and health care.[6]

 

Under sections 5201 and 5231 of the New York Civil Laws and Practice Rules, these hospitals are permitted to file liens on patients’ homes and garnish 10 percent of their gross wages after prevailing in court on a medical debt case. A January 5, 2021 front page New York Times article underscores the fear wage garnishments induce in working people:  Northwell hospital system sued Scott Buckley, a 48 year-old Stop & Shop employee, for $21,028 in medical bills. As Mr. Buckley put it: “I am literally broke…I don’t have a penny to my name. I have three kids. If they take my paycheck, I won’t have anything.”[7]

 

In November 2021, the Syracuse Post[8] Editorial Board endorsed enactment of this bill and the Daily News[9] has condemned the practice of medical providers filing liens on patients homes.

 

For these reasons, Empire Justice Center strongly urges the enactment of the provision of the Patient Medical Debt Protection Act that protects patients’ homes and wages from extreme medical collection practices (S6522/A7363).

 

 

 

 

 

1 Altarum Healthcare Value Hub and Community Service Society of New York, “New Yorkers Struggle to Afford High Healthcare Costs; Support a Range of Government Solutions Across Party Lines,” March 2019, https://www.cssny.org/news/entry/new-statewide-healthcare-affordability-survey.

[2] Urban Institute, “Debt in America: An Interactive Map,” December 2019, https://apps.urban.org/features/debt-interactive-map/?type=overall&variable=pct_w_medical_debt_in_collections&state=36&county=36075. The counties are Cattaraugus, Cayuga, Chautauqua, Columbia, Cortland, Greene, Jefferson, Madison, Onondaga, Rensselaer, Schenectady, Schuyler, Seneca, Steuben, Sullivan, and Washington.

[3] Seifert, R . “Home Sick: How Medical Debt Undermines Housing Security,” St Louis Univ Law J, 51:325; Bienlenberg, J. “Presence of Any Medical debt Associated with Two Additional Years of Homelessness in a Seattle Sample,” The J of Health Care Organizations, 57:1-10, Jan. 2020.

[4] Urban Institute, “Debt in America: An Interactive Map,” December 2019, https://apps.urban.org/features/debt-interactive-map/?type=overall&variable=pct_w_medical_debt_in_collections&state=36&county=36075

[5] E. Benjamin & A. Dunker, “Discharged Into Debt:  Nonprofit Hospitals File Liens on Patients’ Homes, Community Service Society of NY, November 2021, https://www.cssny.org/publications/entry/discharged-into-debt-nonprofit-hospitals-file-liens-on-patients-homes

[6] A. Dunker & E. Benjamin, “Discharged Into Debt:  Medical Debt and Racial Disparities in Albany County,” Community Service Society of NY, March 2021, https://www.cssny.org/publications/entry/discharged-into-debt-medical-debt-and-racial-disparities-in-albany-county ; B. Bump, Albany Times Union, “Pandemic hasn’t stopped area’s hospitals from suing patients over unpaid bills,” March 18, 2021, https://www.timesunion.com/news/article/Pandemic-hasn-t-stopped-Capital-Region-hospitals-16036542.php

[7] “One Hospital System Sued 2,500 Patients After Pandemic Hit,” The New York Times, January 5, 2021, https://www.nytimes.com/2021/01/05/nyregion/coronavirus-medical-debt-hospitals.html

[8] Syracuse Post Standard Editorial Board, “NY should ban lines on patients’homes over medical debts,” November 15, 2021, https://www.syracuse.com/opinion/2021/11/ny-should-ban-liens-on-patients-homes-over-medical-debts-editorial-board-opinion.html.

[9] Daily News Editorial Board, “Hospitals must stop placing liens on medical debtors’ homes,” November 14, 2021, https://www.nydailynews.com/opinion/ny-edit-hospital-liens-20211114-ypavmznqyrdvjgr7gwqgp23qqm-story.html


Joint Memo of Support for SSP Bill

Posted on May 26th, 2021

Joint Memo of Support
SSP Bill

AB7528 (Rosenthal)

We recommend you view the full PDF.

 

Dear Chairperson Rosenthal and Speaker Heastie:

We write to express our strong support for AB7528, filed by Chairperson Linda Rosenthal requiring the Office of Temporary Disability (OTDA) to continue to provide State Supplement
Program (SSP) benefits to senior and disabled individuals whose eligibility for Supplemental Security Income (SSI) is for a closed period only. We urge you to pass the measure.

Many senior and disabled New Yorkers rely on SSI, a needs-based program available only to those with very limited or no income. In New York, SSI has a federal component, administered by the Social Security Administration, and a state component, SSP, which has been administered by OTDA since 2014. Currently, New York’s SSP portion is either in the amounts of $23 or $87 each month for individuals, and $46 or $104 for couples, depending on living arrangement.

In January 2021, OTDA implemented a series of so-called “clarifying” changes through rule making. While we supported many provisions proposed by the agency, we strenuously objected to changes now in effect requiring disabled and senior New Yorkers be in active receipt of SSP benefits in order to obtain retroactive SSP benefits.

Due to delays and complexities embedded in the disability benefits applications process, a number of very low-income seniors and disabled New Yorkers are eligible for SSP only for a five-month period while waiting for Social Security Disability Insurance (SSDI) benefits, and are no longer active SSP recipients by the time SSI benefits are awarded. The new OTDA changes deprive very low-income New Yorkers of a small but important supplement to their income. This includes those who are only eligible for SSP benefits during their five-month waiting period for SSDI, and others whose SSI benefits were suspended for technical reasons, but otherwise would be eligible for SSP.

We point out that the January 2021 regulations’ limitation of retroactive payments to only active participants undermine decades of policy and practice. The changes also administratively overrule three court decisions that directed OTDA to pay SSP benefits to people who were eligible for SSI for a closed period. Moreover, previous to the New York takeover of SSP in 2014 from the Social Security Administration (SSA), SSA issued retroactive SSI payments to recipients. But once New York State took over administration of the SSP program, OTDA stopped paying these retroactive benefits, despite being directed by both its own fair hearing bureau and the courts to continue paying them.

Empire Justice Center and the undersigned organizations have appreciated working with OTDA as a partner in advocating for low-income New Yorkers. However, we expressed serious concerns when OTDA took over the administration of SSP. We were especially worried that very low-income seniors and disabled New Yorkers would be left worse off from the switch in spite of savings for the state. At the time, the OTDA commissioner repeatedly reassured advocates and the public that vulnerable New Yorkers who rely on these desperately needed benefits would not be affected by the change. These 2021 January regulations limiting eligibility t 1 o an entire subset of applicants do not live up to that promise made by the agency.

For these reasons, we appreciate the Chairperson Rosenthal’s support in advocating for very low-income seniors and disabled New Yorkers. While the dollar amounts are modest, they make a world of difference to recipients. We urge the leadership to pass the measure.

 

Sincerely,

 

Susan Antos
Senior Attorney
Empire Justice Center

 

Kristin Brown
President and CEO
Empire Justice Center

 

Adriene Holder
Attorney-in-Charge
Civil Practice
The Legal Aid Society

 

Gene Doyle
Executive Director
People Organized for Our Rights, Inc. (P.O.O.R.)

 

Beth Goldman
President & Attorney-in-Charge
New York Legal Assistance Group

 

Jeanette F. Estima
Director of Policy
FPWA

 

Rae Glaser
Director
NYS Kinship Navigator

 

Joseph Kelemen
Executive Director
Western New York Law Center

 

Saima Akhtar
Senior Attorney
National Center for Law and Economic Justice (NCLEJ)

 

Richard Berkley, Esq.
Executive Director
Public Utility Law Project of New York (PULP)

 

Doug Lasdon
Executive Director
Urban Justice Center

 

[1] Elizabeth Berlin, Executive Deputy Commissioner, NYS Office of Temporary and Disability Assistance, OTDA Formal Budget Hearing Testimony, November 13, 2012.


Joint Memo of Support – Gender Recognition Act 2021

Posted on April 27th, 2021

Logos for each organizational sign-on to this memo of support

 

Joint Memo of Support
Gender Recognition Act

S.4402 (Hoylman) / A.5465 (O’Donnell)

We recommend you read the full PDF

 

We, the undersigned organizations, supported by hundreds of thousands of members, donors, clients, students, and other stakeholders throughout the State of New York, share the common goal of advancing the civil and human rights of all people regardless of gender and eliminating barriers that undermine the health, safety, and equality of people because of their gender. We support the rights of transgender, nonbinary, and intersex New Yorkers. We write to urge your support for the Gender Recognition Act (S.4402/A.5465).

The Gender Recognition Act would help transgender people, including nonbinary people, access documents that accurately reflect their identities. The bill would:

The Gender Recognition Act has had substantial input from the transgender, nonbinary, gender nonconforming, and intersex advocacy community – both in New York State and nationally. The language in the bill is maximally effective, aligns with national trends (placing New York back at the forefront of progress), and genuinely addresses the issues faced by these communities on the ground. The Gender Recognition Act is a comprehensive bill which will address loopholes and contradictions in existing law.

 

Adding a Gender-Neutral Designation

We support the Gender Recognition Act (S.4402/A.5465) because binary gender designations of “female” or “male” fail to adequately represent the diversity of human experience. Nonbinary people have gender identities that fall outside traditional conceptions of strictly male or female.

Twenty-six jurisdictions throughout the U.S. now offer gender-neutral designations on birth certificates, state IDs, or both, including: Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Massachusetts, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York City, Nevada, New Hampshire, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, Vermont, Washington, and Washington D.C.[1]

Over one-third of all transgender people in the U.S. identify as nonbinary, according to the 2015 U.S. Transgender Survey. A gender-neutral option on driver’s licenses and birth certificates would allow people whose gender is not male or female to display an accurate gender marker. While there was an administrative policy change at the Department of Health to allow for X designations on New York State birth certificates, we would like to codify such a policy in statute so that a subsequent administration cannot revoke the policy change. There are also currently New Yorkers born within the five boroughs, or in the abovementioned states’ jurisdictions, who have an X on their birth certificate but have no mechanism to get a matching driver’s license or state ID in New York. Allowing the DMV to issue IDs with an X would allow nonbinary people to have matching documents and would align intrastate agency policy.

 

Allowing for Gender Designation Changes by Self-Attestation

Self-designation occurs when an individual reports information on an application, under penalty of perjury, that does not need to be verified by any secondary source, such as a medical provider. Since a person’s own report is the most accurate means of ascertaining the appropriate sex designation for their documents, removing the medical attestation requirement alleviates an unnecessary and often prohibitively expensive burden placed on transgender people seeking corrected documents. This will ensure better access to accurate gender marker designations for all transgender people.

Transgender people frequently do not have access to appropriate medical care. Nearly one-third (32%) of transgender individuals in New York who saw a health care provider in the previous year reported having a negative experience related to being transgender, including verbal harassment, refusal of treatment, or even physical or sexual assault. Many did not see a doctor when they needed to because they feared mistreatment for being transgender, and more than a quarter of transgender respondents in New York (28%) could not see a doctor because of cost.[2]

Requiring healthcare providers to attest to an individual’s gender identity is costly, burdensome, and entirely unnecessary. Finding a competent provider who is able and willing to attest to an individual’s gender identity is challenging, if not impossible, particularly for rural residents. Even if people are able to access a competent provider, each provider appointment can cost hundreds of dollars, and some providers require multiple visits before writing a certificate letter, making barriers particularly high for low-income people.[3] In addition, as long as an X gender marker is not available, the state is effectively requiring providers and some transgender and intersex people to commit perjury when obtaining state-issued documents or amending the gender marker on their documents, because the physician must attest that the person has transitioned to male or female and that one gender predominates, which is not the case for many transgender and nonbinary people.

 

Removing Publication Requirements

The Gender Recognition Act takes an essential step towards protecting transgender individuals by eliminating the publication requirement for name changes, which also eliminates existing inconsistencies in how judges apply the publication requirement today. Currently, in order to get a name change in New York State, applicants are required to publish notice of their name change in a newspaper, including their old name, new name, home address, place of birth, and birth date. This essentially means that a transgender petitioner must run a newspaper advertisement that reveals the fact that they are transgender and where they live. This can put petitioners at real risk of violence; many transgender people face blatant discrimination and severe violence simply for being who they are.

Judges who are aware of these threats to safety have discretion to waive the publication requirement on an individual basis upon a showing, by the totality of the circumstances, of a threat to personal safety. Under current law, that threat does not need to be based on a personalized history of violence, but there is a lack of consistency in the granting of waivers. Some judges waive the publication requirement while others never do, even if the petitioner shows a particularized, individual threat to their personal safety. Outing oneself as transgender to the court and to the public always carries a threat to one’s safety. If someone’s transgender status is mentioned in their petition and publication is not waived, that document remains in the public domain and accessible by anyone who seeks it.

The following twenty-two jurisdictions have no statutory publication requirement at all for legal name changes: Alabama, Arkansas, Connecticut, Florida, Iowa, Kentucky, Louisiana, Minnesota, Mississippi, New Hampshire, New Jersey, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Washington D.C. California and Colorado have no publication requirement if the name change is related to gender.[4]

The publication requirement is no longer necessary for its original purpose of notifying creditors of a name change. Judges have discretion to require specific, direct notifications to creditors and other parties when appropriate, and financial institutions in the Internet age no longer require publication information to keep accurate records. At this point – aside from forcing transgender people to disproportionately incur the expense of publication since a legal name change is often a required element of transition – the only result of publication is to out a person as transgender. Not only does this place them at increased risk of violence, but it publicizes personal medical information when a more narrowly tailored option is available.

The publication requirement impacts all name change petitioners, whether transgender or not. Many people who file a name change petition on their own do not realize that publication is a condition of obtaining their final certified orders and then must restart the name change process because the time to publish as set forth in their order has expired. Self-represented petitioners may not realize they have the option to request a waiver, and others are unable to afford the publication fee within the required timeframe and also must start over. Removing the publication requirement would streamline and standardize this process for everyone.

Notably, there is no publication requirement for a person who seeks to change their name attendant to marriage or naturalization. The current law’s treatment of marriage in particular as an acceptable reason for a name change, without question, while transgender people and others seeking a name change for equally important reasons are treated as presumptively suspect is an anachronistic holdover that relies on and entrenches old sexist and transphobic stereotypes. This unequal treatment calls into question the validity of the current statute under the New York Constitution’s Equal Protection Clause.

The Gender Recognition Act also allows petitioners to request that their name change record be sealed. Explicitly allowing judges to consider transgender status as a justification for sealing records will further protect transgender petitioners. Currently, a name change record is sealed automatically when publication is waived. If the publication requirement is removed from the name change statute, we must ensure transgender people and other at-risk populations like domestic violence survivors have a mechanism to seal their records. New York State should adopt the Gender Recognition Act to ensure a safe, fair, and predictable process.

 

Allowing Transgender Parents to Update Information on Their Child’s Birth Certificate

Many transgender people, including nonbinary people, are also parents. These parents must show their child’s birth certificate when registering their child for school. These parents should be able to update their child’s birth certificate to display their current legal name to ensure privacy and accuracy. Additionally, a nonbinary parent who does not identify as “mother” or “father” should easily be able to be correctly identified as “parent” on their child’s birth certificate.

As of July 2020, the Department of Health made an administrative change to allow a transgender parent whose child was born prior to their name change to change their own name on their child’s documents without a court order separate and in addition to their actual name change order. Prior to this change, the Department of Health required a second order explicitly ordering them to change the parent’s name on the child’s birth certificate. Beyond the additional court cost that fell almost exclusively on transgender people, judges in many counties do not issue such orders because name changes on birth certificates are generally an administrative matter. We would like to codify this change in statute so that it cannot be rolled back administratively at a later date.

If the policy were to be rolled back, parents whose children were born outside of New York City would be required to out themselves as transgender and present their name change order with their child’s birth certificate when registering for school or sports, applying for a passport, or doing any number of ordinary activities. If the parent sought to change their own name on their own birth certificate, their name change order would be sufficient to do so, but the Department of Health previously did not comply with certified court orders dictating that a parent shall go by their new name and no other name, and there is concern such a policy could return without a statutory change. Allowing transgender parents in all of New York State to update their child’s documents ensures that correct records are kept – including when a child must use their birth certificate as foundational documentation upon which other documents are based – and would ensure that transgender parents need not out themselves in the normal course of parenting.

 

Providing for Court Orders When Necessary

New York State courts do not currently have clear jurisdiction to issue orders recognizing an individual’s gender. While people born within New York State may update their records administratively without a court order, many other states require a court order to change the gender designation on a birth certificate. Requiring a court order to change gender designations is highly burdensome, and we are glad this is not required in New York; the Gender Recognition Act makes clear that under no circumstance should such an order be required to change a document issued by New York State. However, for New York residents born elsewhere, if courts do not have explicit jurisdiction to issue the required order, there is effectively no mechanism to change an out-of-state birth certificate.

The Gender Recognition Act would grant courts the power to issue an order recognizing an individual’s gender identity, allowing New York State residents born out of state to update their birth certificates without the added expense and burden of traveling to the state of their birth, finding local counsel, and initiating a proceeding elsewhere. New Yorkers should be able to access the courts where they live.

 

Supporting Transgender and Nonbinary Youth

Until recently, New York State did not allow minors to update the gender marker on their birth certificate. Indeed, the Department of Health’s policy only changed after a settlement with Lambda Legal.[5] While this administrative change was a positive one, like with the other proposals mentioned herein, there is concern that a simple administrative change is easily revocable. The policy of prohibiting gender marker corrections for transgender youth was anomalous in New York and the nation. Minors born in New York City have long had the opportunity to correct their birth certificates at whatever age their parents and providers determine that that is appropriate for them. Similarly, the 12 jurisdictions that have modernized their birth certificate policies to eliminate surgery requirements all have the same policy regardless of age.

Many minors begin to transition both socially, and sometimes medically, prior to their 17th birthdays. The previous policy resulted in minors having to out themselves any time they needed to use their birth certificate. In particular, many young people graduate high school and enter college prior to their 17th birthday and, due to this policy, were unable to update their birth certificate prior to registering for college, which created many complications for recordkeeping.

Birth certificate changes are important for transgender people regardless of their age. Being forced to use identity documents that do not accurately reflect a person’s gender opens the door to harassment and discrimination. Youth who do not have appropriate identification documents face the risk of stigma, discrimination, and bullying if their transgender status is publicized as a result of their incorrect birth certificate. Beyond that, the longer a person must use incorrect foundational documents, the more subsequent documents are based on that information and must be changed later. The Gender Recognition Act ensures that youth have access to accurate birth certificates along with everyone else.

 

Requiring Justification for Notice & Consent in Name Change Matters

Currently, the name change statute sets out the circumstances in which certain parties must be notified of a name change proceeding either before the proceeding can move forward or before the petitioner can obtain certified copies of their name change order. Specifically, minor petitioners must notify their legal parent(s) and petitioners with certain felony convictions must notify certain prosecutorial and supervisory entities. However, many judges go beyond the statute to require notification to and consent from parties outside the scope of the contemplated regime.

In some cases, for example, judges have required notification to or consent from an adult petitioner’s parent or a judge or prosecutor who previously convicted/sentenced a petitioner in criminal court. In Manhattan Civil Court, the court requires spousal consent for all married petitioners before the matter can even go before a judge. The court calls it an acknowledgement to avoid the appearance that they are conditioning an adult’s name change on some other party’s consent, but in practice, it effectively functions as required consent.

These requirements are an infringement on a person’s right to go by the name they choose. They have the potential to put petitioners in a dangerous situation if it is not safe for them to inform a spouse or parent of their name change or transgender status, or they may serve as an insurmountable barrier if the petitioner’s spouse or parent cannot be located or refuses to provide consent. Regarding consent from a judge or prosecutor who previously oversaw a conviction, these parties have no standing to object to a petitioner’s name change and have already punished the petitioner for whatever crime they were convicted of; they should not be able to further insert themselves into the petitioner’s life to prevent them from moving forward as themselves.

In addition, notice to various federal immigration agencies is routinely ordered for individuals born outside the United States, whether documented or not, particularly in New York City Civil Court. Name change petitioners must ultimately update their name on their immigration documents at great cost. It is in their interest to make these updates so that they can begin using documentation with the appropriate information on it. It is not the City or State court’s job to do the federal government’s bidding with regards to immigration enforcement. This particular requirement unduly burdens some of the most vulnerable name change petitioners, creates confusion around whether notice in fact updates someone’s documents and records (it does not), and potentially subjects them to immigration enforcement action simply for attempting to access the courts, which they have the right to do.

The Gender Recognition Act does not eliminate judicial discretion to order appropriate notifications. The bill simply clarifies under what circumstances notice is appropriate (the bill maintains the existing minor and felony notifications) and requires a judge to provide a written decision showing good cause why a person or entity outside the current standard must be notified in a given case. If the notice can be justified, a judge remains within their discretion to order it. If the notice cannot be justified, a petitioner has a written decision from which to appeal.

 

Requiring Compliance with Name Change Orders

When a name change petitioner obtains their certified name change order, they must go to every individual agency and entity with whom they need to change their information. At the agency level, there are generally standards by which clerks must process a name change and/or gender marker change. However, for private entities and other non-agency public entities, such as schools, there is no enforcement mechanism when a person’s request to update their information is denied despite a court order saying they shall go by the new name. This results in a patchwork of standards that leaves people across the state unclear about whether they will be able to update a given document.

In the school context, oftentimes when a person returns to the institution they graduated from and requests a name change, they are met with refusal because “that is not the person who graduated” from the institution. A similar issue arises when a person who was married before their name change attempts to change the name on their marriage certificate. The Division of Vital Records’ current policy is to have the couple divorce and remarry in order to obtain an accurate marriage certificate, purportedly because the original document was witnessed and thus cannot be amended. It is unclear why a new, amended document could not simply be re-witnessed, but this is obviously an absurd requirement with major implications for the lives of married transgender people. A divorce is a life event that needs to be disclosed in various contexts – including in a name change petition – and it is unjust to require someone who does not wish to divorce to do so simply to update a document.

The Gender Recognition Act proposal regarding document updates requires all entities to comply with a name change order by updating the requested documentation or record, and establishes a cause of action for an individual to file a complaint with the relevant enforcement agencies should anyone refuse to comply with the order. While New York is a common law name change jurisdiction, meaning that anyone can go by any name they wish as long as it is not for fraudulent purposes or to interfere with the rights of others, changing many official documents and records requires a court ordered name change. Transgender people should not be required to go through the judicial name change process just to get a court order that an entity can simply refuse to comply with, leaving them with no recourse.

As transgender people recover from years of attacks from the federal government, and transgender youth specifically are being targeted in many states, it is essential that New York act to support its transgender, nonbinary, and intersex residents. The Gender Recognition Act goes a long way toward ensuring that every New Yorker can access documents that truly represent their identity and preserve their privacy, and brings New York back to the forefront on transgender equity. Please support this legislation to update the name change process and gender marker options in New York State.

For these reasons, we, the undersigned organizations, support the passage of the Gender Recognition Act.

 

Sincerely,

 

Professor Susan Hazeldean

Brooklyn Law School LGBT Advocacy Clinic

 

Eòghann Renfroe, Policy & Comms Manager

Lettie Dickerson, Esq., LGBTQ Rights Attorney

Empire Justice Center

 

Juli Grey-Owens, Board Chair & Executive Director

Gender Equality New York, Inc (GENY)

 

Kelsey Louie, Chief Executive Officer

GMHC

 

Ethan Rice, Esq., Senior Attorney

Lambda Legal                                               

 

Lía Fiol-Matta, Senior Counsel

Latino Justice PRLDEF

 

Sonja Shield, President

Legal Services Staff Association, LSSA 2320

 

Trevon Mayers, Senior Director of Advocacy & Community Engagement

The Lesbian, Gay, Bisexual & Transgender Community Center

 

Mateo Guerrero-Taberes, TGNCIQ Lead Organizer

Make the Road New York

 

Milo Primeaux, Esq.

Law Office of Milo Primeaux

 

Allie Bohm, Esq., Policy Counsel

Bobby Hodgson, Esq., Senior Staff Attorney

New York Civil Liberties Union (NYCLU)

 

Heather Betz, Esq., Project Director

New York Legal Assistance Group, LGBTQ Law Project

 

J. Leigh Oshiro-Brantly, President

New York State Gender Diversity Coalition (NYSGDC)

 

Kiara St. James, Executive Director

New York Transgender Advocacy Group (NYTAG)

 

Nneka Okpara, Staff Attorney

Peter Cicchino Youth Project of the Urban Justice Center

 

Brooke Malloy, Executive Director

Phyllis B. Frank Pride Center of Rockland County

 

Sylvia Rivera Law Project

 

Andrew A. Ortiz, Esq., Staff Attorney

Transgender Law Center

 

David Brown, Esq., Legal Director

Transgender Legal Defense & Education Fund

 

Cristina Herrera, CEO & Founder

TransLatinx Network

 

For more information about this bill, please contact:

 

Eòghann Renfroe                                                                                Charlie Arrowood

518-935-2856                                                                                      516-331-1317

erenfroe@empirejustice.org                                                            carrowood@transgenderlegal.org

 

[1] Movement Advancement Project, Equality Maps: Identity Document Laws and Policies, http://www.lgbtmap.org/equality-maps/identity_document_laws (March 24, 2021).

[2] 2015 U.S. Transgender Survey: New York State Report (October 2017) https://www.transequality.org/sites/default/files/USTS%20NY%20State%20Report%20%281017%29.pdf

[3] For example, in a recent analysis by the WA State Department of Health of a proposed rule that would remove the provider attestation requirement to update the gender marker on a WA birth certificate, the department estimated that the cost of obtaining an attestation letter from a licensed health care provider ranged from $0 to $910. Washington Department of Health, Significant Rule Analysis: WAC 246-490-075 Changing sex designation on a birth certificate, November 1, 2017, available at https://fortress.wa.gov/doh/policyreview/Documents/SA_GenderChange_BirthCertificate.pdf.

[4] Information compiled from the ID Documents Center, National Center for Transgender Equality, available at: https://transequality.org/documents

[5] M.H.W. v. Cuomo, No. 20-cv-00017 (N.D.N.Y.)  – information available at https://www.lambdalegal.org/in-court/cases/mhw-v-cuomo