BILL NUMBER:  S735A

 TITLE OF BILL :
An act to amend the executive law, in relation to certain unlawful
discriminatory practices


 PURPOSE :
The purpose of this bill is to clarify the scope of protections
against discrimination on the basis of disability in services provided
by public entities.

 SUMMARY OF SPECIFIC PROVISIONS :
Section one of this bill adds two new subdivisions, 34 and 35, to
section 292 of the executive law. New subdivision 34 defines the term
"public entity" to mean the state or any political subdivision
including any department, agency, special purpose district, or other
instrumentality of state or local government. Subdivision 35 would add
to the term "auxiliary aids and services." Under this new section,
these services would include qualified interpreters or readers for the
hearing or visually impaired, acquisition or modification of equipment
and other similar services and actions.  Section two of this bill
would amend section 296 of the executive law to add three new
subdivisions, three-c, three-d, and three-e. The new subdivision
three-c would not allow public entities to deny services, programs or
activities to exclude a qualified person with a disability based on
              

such disability. Subdivision three-d would also make it an unlawful
discriminatory practice for a public entity to refuse to make
reasonable modifications to rules, policies or practices, remove
architectural, communication or transportation barriers or refuse to
provide auxiliary aids and services to a person with a disability,
unless they can show that to do so would pose an undue hardship.
Subdivision three-e provides that to the extent that certain public
transportation entities are covered by Subtitle B Title II of the
Americans with Disabilities Act of 1990, 42 USC 12141 et seq., such
entities shall not be subject to the requirements of subdivisions
three-c and three-d of this section.

 JUSTIFICATION :
Beginning with the adoption of Chapter 988 of the laws of 1974, true
nondiscrimination requires more than merely refraining from offensive
conduct. In some instances, there are certain modest actions which
must be undertaken to assure that people with disabilities have an
equal opportunity to participate in certain programs, services and
activities. Title II of the ADA prohibits discrimination on the basis
of disability by government entities. For several years, similar
requirements have been applied to any entity, including state and
local government, which receives federal funds pursuant to the federal
Rehabilitation Act of 1973. Given the scope of the 1973 mandate and
the extent to which state and local governments continue to receive
federal funds, the additional impact of this requirement should be
minimal. Although Section 296 of the Executive Law already prohibits
such discrimination by public entities as employers and operators of
public facilities, this measure will clarify two key obligations of
governmental entities providing benefits, programs or services. First,
it will be clear that prohibitions against discrimination extend
beyond employment and use of facilities to services, programs and
activities. This distinction becomes critical in the case of
individuals who may be afforded full access to a facility but are
denied the opportunity to participate in a program offered in that
facility because of their disability.  Second, it will be consistent
with comparable federal requirements and will clarify the obligation
of the public entity to take reasonable actions to assure that the
rules, policies or practices by which services, programs or activities
are administered and that the existence of architectural,
communication or transportation barriers or the absence of auxiliary
aids and services do not prevent the participation of eligible people
with disabilities in public entity services, programs and activities.
Given the minimal resources which the federal government has in the
past devoted and in the future is also expected to devote to ADA
enforcement, the availability of state enforcement mechanisms through
the Human Rights Law is essential to assure adequate protections
against discrimination on the basis of disability in the area of
government services. Furthermore, it adds consistency for government
entities that are attempting to assist people with disabilities by
putting the federal requirements in state law. And finally, it secures
these protections in state law, should they be challenged in federal
court.

 PRIOR LEGISLATIVE HISTORY :
2008: S.7020-A Referred to Investigations and Governmental Operations.

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
This act shall take effect on the ninetieth day after it shall have
become law.