HB 1292

HB 1292 - AS INTRODUCED

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

SPONSORS: Rep. Burnham, Ches 8; Rep. MacKay, Merr 24; Rep. Emerton, Hills 7; Rep. Pilliod, Belk 3; Sen. McCarley, Dist 6

This bill revises the law on the appointment of interpreters for the deaf in judicial, governmental and other public proceedings and actions.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

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

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

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 RSA 521-A is repealed and reenacted to read as follows:

521-A:1 Purpose. The purpose of this chapter is to ensure that deaf and hard of hearing persons who are parties in interest and otherwise affected by proceedings or actions of judicial or state, county, or municipal government entities, licensees, contractors or public accommodations and services operated by private entities shall have available to them a qualified interpreter or auxiliary aids so that they may have the same opportunity to expressively and receptively communicate in such contexts as all citizens. Nothing in this chapter is intended to limit whatever other obligations of such entities, licensees or contractors, or the rights of deaf persons under Title II and Title III of the Americans with Disabilities Act.

(a) The presiding justice of any court, the chairperson of any board, commission or authority, and the director or commissioner of any department or agency, any officer of state, county or municipal government, head of any department or agency, school district or any other political or administrative subdivision.

(b) The head of any licensee of, contractor with, or recipient of funds from, any person specified in subparagraph I(a).

(c) Any person presiding at any hearing or other proceeding wherein a qualified interpreter or auxiliary aid is required pursuant to this chapter.

(d) Any person operating a private entity requiring public accommodation or provision of services.

II. "Auxiliary aids" means, but is not limited to, Computer Assisted Real Time (CART), telephone handset amplifiers, assistive listening devices, hearing aid compatible telephones, opened and closed captioning, videotext displays or other effective methods of making aurally developed materials available to individuals who are deaf or hard of hearing.

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

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

V. "Government or other entity" means any court, department, board, commission, agency or licensing authority of the state; any political subdivision of the state; or any department, board, commission, agency or licensing authority of a political subdivision or any licensee of, contractor with or recipient of funds from any such government entity.

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

VII. "Intermediary interpreter" means an interpreter who holds a certificate of Certified Deaf Interpreter or Certified Deaf Interpreter-Provisional or Reverse Skills from the National Registry of Interpreters for the Deaf.

VIII. "Principal party in interest" unless the context states otherwise, means all deaf or hard-of-hearing persons in any proceeding or event in which the person is a named party, or a person with respect to whom the decision or action which may be taken in any proceeding directly affects. The term shall include, but not limited to victims, jurors, witnesses, parents or guardians, surrogate or foster parents, guardians, ad litem, or other individuals for whom the principal party relies for advice or decisions.

IX. "Qualified interpreter" means a person licensed pursuant to RSA 326-I or a person granted an exemption under RSA 326-I.

X. "Qualified legal interpreter" means an interpreter who holds a specialized certificate in legal interpreting, or a specialized legal certificate-provisional or who has successfully completed legal interpreter training sanctioned or sponsored by the Registry of the Interpreters for the Deaf or the National Association of the Deaf. This individual must be licensed and possess a certificate of competency from the National Registry of Interpreters for the Deaf or level 5 certificate from the National Association of the Deaf. Qualified legal interpreter also includes a person granted an exemption under RSA 326-I:7, provided that the person discloses his or her lack of certification or legal training to the government or other entity.

521-A:3 Preliminary Determination. No qualified interpreter or qualified legal interpreter shall be appointed in any case until the appointing authority and the deaf person make a preliminary determination that the interpreter is able to accurately communicate both receptively and expressively for the deaf person involved. In the event that the interpreter is found unable to communicate effectively, an intermediary interpreter may be appointed or an alternate interpreter shall be obtained.

521-A:4 Standards for Selecting Type of Interpreter or Auxiliary Aid. The appointing authority shall appoint:

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

II. A qualified legal interpreter for all stages of all criminal, civil and other adjudicatory proceedings, including but not limited to civil, criminal administrative investigations which may lead to such proceedings;

521-A:5 Notice; Need for Interpreter or Auxiliary Aid. Every deaf person whose appearance before a proceeding or event which requires an interpreter shall notify the appointing authority prior to any appearance and shall request the services of an interpreter. This request does not have to be in writing.

I. Whenever an appointing authority receives a valid request for the services of an interpreter, the authority can request the board to furnish the authority with a list of qualified interpreters at the time and place and for the period specified by the authority. If the choice of a qualified interpreter does not meet the needs of the deaf person, the appointing authority shall appoint another licensed interpreter or intermediary interpreter.

II. The New Hampshire Association of the Deaf and the New Hampshire Registry of Interpreters are authorized to assist the board to prepare and continually update, a listing or directory of qualified and available interpreters.

521-A:7 Compensation. An interpreter appointed under the provisions of this chapter in a proceeding where liability for payment of compensation is on the state or a political subdivision of the state, shall be reimbursed by the appointing authority at a fixed rate reflecting the current approved fee schedule as established by the department of education, division of adult learning and rehabilitation. Nothing in this section shall be construed to prevent any state department, board, commission, agency, or licensing authority or any political subdivision of the state from employing an interpreter on a full-time basis or under contract at a mutually agreed upon compensation rate. Compensation paid by private entities to interpreters shall be negotiated by the entity and the interpreter.

521-A:8 Privileged Communications. An interpreter who is employed to interpret, transliterate, or relay a communication between a person who can hear and a person who is deaf or hard of hearing acts as a conduit for the communication and may not disclose or be compelled to disclose, through reporting, testimony or by subpoena, the contents of the communication, unless consent was granted by the deaf person, regardless of who hired the interpreter. This provision is not intended to preclude clarifying an interpretation or communication as part of the normal course of such interpretation and communication during the actual proceeding or engagement.

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

521-A:10 Interpreter to be Provided. Whenever any deaf person is a party to or receiving services from the government or other entity, including but not limited to any health, welfare, or educational agency under the authority of the state or political subdivision of the state or municipality, the appointing authority shall in accordance with RSA 521-A:11 appoint a licensed interpreter to interpret the communications between the deaf person and the employees of the entity.

521-A:11 Interpreter Required in Civil, Administrative and Other Proceedings. At all stages of any proceeding before any court, department, board, commission, agency or licensing authority of the state; any political subdivision of the state; or any department, board, commission, agency or licensing authority of a political subdivision government or other entity in which a deaf person is a principal party in interest the appointing authority shall in accordance with the standards in RSA 521-A:14, appoint, upon verbal or written request of the deaf principal person, an interpreter, licensed or granted an exemption under RSA 326-I, to interpret or to translate the proceedings to the deaf person. The costs for providing interpreting or auxiliary aid service shall not be assessed as court or administrative costs to the deaf person.

I. In any proceeding, or preliminary proceedings involving criminal sanctions or confinement, forfeiture of property or court ordered procedures a qualified legal interpreter is required. This includes, but is not limited to interrogation by law enforcement personnel, administration of the Miranda warning, grand jury proceedings, arbitration or mediation hearings, probation or parole hearings or meetings, depositions, court-ordered psychiatric evaluations, arrests, including communications related to needed medical attention during apprehension. The costs of such interpreting or auxiliary aid service shall not be assessed as court costs to the deaf person.

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

521-A:13 Oath of Interpreter. Every interpreter appointed pursuant to the provisions of this chapter, before entering upon his or her duties in any legal or quasi-legal setting, shall take oath that he or she will to his or her best skill and judgement make a true interpretation to the deaf person in a language that the deaf person understands, all spoken language and, if necessary, any written material presented during each stage of the proceeding and of the deaf person's communication to others during each stage of the proceeding, whether or not the deaf person is the principal party in interest, provided that in case for an interpreter appointed for a juror, the interpreter shall also take an oath that he or she will not:

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

521-A:14 Visual Recordings; Court Proceedings. On the court's motion, or the motion of a party, the court may order testimony of a party and the interpretation of that testimony by the interpreter be visually and electronically recorded for use in verification of the transcription of the reporters notes or accuracy of the interpretation. The clerk of the court shall include that recording in the appellate record if requested by a party.

521-A:15 Interpreter Positioning. No court proceedings or testimony shall commence until the qualified legal interpreter is in full view and spacially situated to assure proper communication with the participating individual who is deaf or hard of hearing.