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[Federal Register: January 17, 2001 (Volume 66, Number 11)]
[Notices]
[Page 4026-4032]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17ja01-92]
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GENERAL SERVICES ADMINISTRATION
Office for Civil Rights; Title VI of the Civil Rights Act of
1964; Limited English Proficiency Policy Guidance for Recipients of
Federal Financial Assistance
AGENCY: Office of Civil Rights, GSA.
ACTION: Notice of policy guidance with request for comment.
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SUMMARY: The General Services Administration (GSA) is publishing policy
guidance on Title VI's prohibition against national origin
discrimination as it affects limited English proficient persons. GSA
provides this policy guidance for its recipients of Federal financial
assistance to ensure meaningful access to federally assisted programs
and activities for persons with Limited English Proficiency (LEP). This
policy guidance does not create new obligations, but rather, clarifies
existing responsibilities under Title VI of the Civil Rights Act of
1964, as amended, its implementing regulations and relevant case law.
DATES: This guidance is effective immediately. Comments must be
submitted on or before March 20, 2001. The Office of Civil Rights (OCR)
will review all comments and will determine what modifications to the
policy guidance, if any, are necessary.
ADDRESSEES: Interested persons should submit written comments to
Office of Civil Rights (AK), Room 5127, General Services
Administration, 1800 F Street, NW., Washington, DC 20405. Comments may
also be submitted by e-mail at evelyn.britton@gsa.gov.
FOR FURTHER INFORMATION CONTACT: James M. Taylor or K. Evelyn Britton,
Office of Civil Rights, Room 5127, General Services Administration,
1800 F Street, NW., Washington, DC 20405, telephone 202-501-0767 or 1-
800-662-6376; TDD 1-888-267-7660. Arrangements to receive the policy
guidance in an alternative format may be made by contacting the named
individuals.
Dated: January 10, 2001.
Madeline Caliendo,
Associate Administrator, Office of Civil Rights, General Services
Administration.
Policy Guidance
1. Subject. Limited English proficiency policy guidance for
recipients of Federal financial assistance.
2. Purpose. General Services Administration (GSA) provides this
policy guidance for its recipients of Federal financial assistance to
ensure meaningful access to federally assisted programs and activities
for persons with Limited English Proficiency (LEP). This policy
guidance does not create new obligations, but rather, clarifies
existing responsibilities under Title VI of the Civil Rights Act of
1964, as amended, its implementing regulations and relevant case law.
3. Dates: This guidance is effective immediately. Comments are
welcome and must be submitted on or before sixty (60) days from the
date of this publication. GSA will review all comments and will
determine what modifications to the policy guidance, if any, are
necessary.
4. Policy. To improve access to federally assisted programs and
activities for persons who, as a result of national origin, are limited
in their English proficiency.
5. Action Required. All recipients of Federal financial assistance
from GSA are to develop an effective plan, in writing, for ensuring
meaningful access to their programs and activities by LEP persons,
consistent with this guidance.
6. Background Information. English is the predominant language of
the United States. According to the 1990 Census, English is spoken by
95% of its residents. Of those U.S. residents who speak languages other
than English at home, the 1990 Census reports that 57%
[[Page 4027]]
above the age of four speak English ``well to very well.''
The United States is also home to millions of national origin
minority individuals who are LEP. That is, their primary language is
not English and they cannot speak, read, write or understand the
English language at a level that permits them to interact effectively
with recipients of Federal financial assistance. Because of language
differences and the inability to effectively speak or understand
English, persons with LEP may be subject to exclusion from programs or
activities, experience delays or denials of services/benefits, or
receive care and services/benefits from recipients of Federal financial
assistance based on inaccurate or incomplete information.
Executive Order 13166 (65 FR 50119) dated August 11, 2000 and
policy guidance issued by Department of Justice (DOJ) on August 11,
2000 (65 FR 50123), address the responsibility of all recipients of
Federal financial assistance to ensure meaningful access for persons
with LEP. GSA refers to and incorporates DOJ's policy guidance for
recipients as part of this policy guidance, and for the purpose of
determining compliance with this policy guidance, within the scope of
Title VI of the Civil Rights of 1964, as amended, its implementing
regulations and relevant case law.
This policy guidance establishes a four-step process that
recipients should follow in developing an effective LEP assistance
plan. A key element in this process is stakeholder input. Therefore,
recipients should coordinate with local community-based organizations
(i.e., stakeholders) that represent populations of LEP persons. These
organizations can provide valuable input and assistance in identifying
and addressing the LEP needs of the serviced population. This
coordinated effort will assist in developing a practical approach in
providing appropriate LEP assistance that is reasonable and cost-
effective.
Some organizations representing LEP persons may include the
National Council of La Raza (NCLR), the League of United Latin American
Citizens (LULAC), the National Council of Asian Pacific Americans
(NCAPA), the Organization of Chinese Americans (OCA), the National
Congress of American Indians (NCAI), the National Urban League (NUL),
the National Association for the Advancement of Colored People (NAACP),
Mexican American Legal Defense and Educational Fund, Arab American
Anti-Discrimination Committee and National Coalition for Haitian
Rights. This is not meant to be an exhaustive listing, and different
community-based or national origin minority organizations may be
available in a recipient's serviced area.
7. Legal Authority. The legal authority for OCR's enforcement
actions is Title VI of the Civil Rights Act of 1964, GSA's implementing
regulations, and a consistent body of case law, and is further
described below.
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000d et. seq. states: ``No 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.''
State and local laws may provide additional obligations to serve
LEP individuals, but cannot compel recipients of Federal financial
assistance to violate Title VI. For instance, given our constitutional
structure, State or local ``English-only'' laws do not relieve an
entity that receives Federal funding from its responsibilities under
Federal anti-discrimination laws. Entities in States and localities
with ``English-only'' laws are certainly not required to accept Federal
funding--but if they do, they have to comply with Title VI, including
its prohibition against national origin discrimination by recipients of
Federal assistance. Thus, failing to make federally assisted programs
and activities accessible to individuals who are LEP will, in certain
circumstances, violate Title VI.
GSA's implementation regulations provide, in part, at 41 CFR 101-
6.204-1:
No 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 otherwise subjected to discrimination
under any program to which this subpart applies.
Specific discriminatory actions prohibited are addressed at 41 CFR
101-6.204-2:
(a)(1) In connection with any program to which this subpart
applies, a recipient may not, directly or through contractual or
other arrangements, on the ground of race, color, or national
origin:
(i) Deny an individual any services/benefits, financial aid, or
other benefit provided under the program;
(ii) Provide any service, financial aid, or other benefit to any
individual which is different, or is provided in a different manner,
from that provided to others under the program;
(iii) Subject an individual to segregation or separate treatment
in any matter related to his receipt of any service, financial aid,
or other benefit under the program;
(iv) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any service,
financial aid, or other benefit under the program;
(v) Treat an individual differently from others in determining
whether he satisfies any admission, enrollment, quota, eligibility,
membership or other requirement or condition which individuals must
meet in order to be provided any service, financial aid, or other
benefit provided under the program;
(vi) Deny an individual an opportunity to participate in the
program through the provision of services or otherwise, or afford
him an opportunity to do so which is different from that afforded
others under the program * * *
Furthermore, the DOJ coordination regulations for Title VI, located
at 28 CFR 42.405(d)(1), provide that:
(1) Where a significant number or proportion of the population
eligible to be served or likely to be directly affected by a
federally assisted program (e.g., affected by relocation) needs
service or information in a language other than English in order
effectively to be informed of or to participate in the program, the
recipient shall take reasonable steps, considering the scope of the
program and the size and concentration of such population, to
provide information in appropriate languages to such persons. This
requirement applies with regard to written material of the type
which is ordinarily distributed to the public.
Extensive case law affirms the obligation of recipients of Federal
financial assistance to ensure that persons with LEP can meaningfully
access federally assisted programs. Specifically, in the case of Lau v.
Nichols, 414 U.S. 563 (1974), the U.S. Supreme Court ruled that a
public school system's failure to provide English language instruction
to students of Chinese ancestry who do not speak English denied the
students a meaningful opportunity to participate in a public
educational program in violation of Title VI of the Civil Rights Act of
1964.
More recently, the Eleventh Circuit in Sandoval v. Hagan, 197 F.3d
484 (11th Cir. 1999), cert. granted sub. Nom., Alexander v. Sandoval,
147 L. Ed. 2d 1051 (U.S. Sept. 26, 2000) (No. 99-1908), held that the
State of Alabama's policy of administering a driver's license
examination in English only was a facially neutral practice that had an
adverse effect on the basis of national origin, in violation of Title
VI. Title VI regulations prohibit both intentional discrimination and
policies and practices that appear neutral but have a discriminatory
effect. Thus, a recipient's policies or practices regarding the
provision of benefits and services to persons with LEP need not be
[[Page 4028]]
intentional to be discriminatory, but may constitute a violation of
Title VI where they have an adverse effect on the ability of national
origin minorities to meaningfully access programs and services.
The DOJ states in its policy guidance that Title VI does not
require recipients to remove language barriers when English is an
essential aspect of the program, or there is another ``substantial
legitimate justification for the challenged practice.'' See Footnote 13
of DOJ's policy guidance.
8. Federal Financial Assistance Programs. GSA administers two major
Federal financial assistance programs, in addition to other programs of
Federal financial assistance, such as the direct transfer of personal
property and the allotment of space in GSA buildings. The two major
programs of Federal financial assistance are the Federal Surplus
Personal Property Donation Programs and the Disposal of Federal Surplus
Real Property for Public Use.
a. Federal Surplus Personal Property Donation Program. Enables
certain non-Federal agencies, institutions, organizations and certain
small businesses to obtain property that the Federal Government no
longer needs. The personal property includes all types and categories
of property, such as hand and machine tools, office machines and
supplies, furniture, appliances, medical supplies, hardware, clothing,
motor vehicles, boats, airplanes, construction equipment, textiles,
communications and electronic equipment and gifts or decorations given
to Government officials by foreign dignitaries.
(1) Federal surplus personal property may be donated to nonprofit
educational and public health activities exempt from taxation under
Section 501 of the Internal Revenue Code. The property must be used to
aid education or public health, and includes programs for the homeless.
Eligible recipients include nonprofit educational and public health
activities, such as medical institutions, hospitals, clinics, health
centers, and drug abuse treatment centers; schools, colleges and
universities; schools for persons with mental or physical disabilities;
child care centers; educational radio and televisions licensed by the
Federal Communications Commission; museums attended by the public; and
libraries. Nonprofit, tax-exempt organizations that provide food,
shelter, or support services to homeless people may also be eligible to
receive surplus property through the donation program (i.e., soup
kitchens, day centers for the homeless, food banks, shelters for
battered spouses, half-way houses).
(2) Additionally, public agencies involved in such activities as
conservation, economic development, education, park and recreation
programs, public safety, public health, programs for the elderly, and
programs for the homeless may be eligible for donations of surplus
personal property. Public agencies generally include States, their
departments, divisions and other instrumentalities; political
subdivisions of States, including cities, counties, and other local
Government units and economic development districts; instrumentalities
created by compact or other agreement between State or political
subdivisions; and Indian tribes, bands, groups, pueblos, or communities
located on State reservations.
b. Disposal of Federal Surplus Real Property for Public Use. Under
existing Federal law, States and local government bodies and certain
nonprofit institutions may acquire Federal surplus real property at
discounts of up to 100% for various types of public use. These uses
include: homeless services, airports/ports, correctional, educational,
historic monument, parks/recreation, public health and wildlife
conservation. These disposals are usually accomplished in coordination
with other Federal agencies (i.e., Department of Education (DOE),
Department of Health and Human Services (DHHS), Department of
Transportation (DOT), Department of Interior (DOI), Department of
Housing and Urban Development (HUD).
c. GSA Personal Property Utilization Program. Government
regulations mandate that Federal agencies, to the fullest extent
practicable, use excess personal property as the first source of supply
in meeting their requirements. However, certain laws provide Federal
agencies with the ability to directly transfer certain excess property
to non-Federal entities. For example, Executive Order 12999 (61 FR
17227, 3 CFR, 1996 comp., p. 180) provides that all Federal agencies,
to the extent permitted by law, shall give highest preference to
schools and nonprofit organizations, including community-based
educational organizations, in the transfer of educationally useful
Federal equipment. Thus, GSA recipients in this program include schools
and certain community-based educational organizations.
d. Allotment of Space. Under existing Federal law, GSA may allot
space for little or no costs to Federal Credit Unions, vending stands
operated by blind persons and child care centers.
9. Definition of Terms. The following definitions are provided for
reference.
a. Federal financial assistance. Grants and loan of Federal funds;
grants or donation of Federal property and interests in property;
detail of Federal personnel; sale and lease of, and the permission to
use (on other than a casual or transient basis) Federal property or any
interest in the property without consideration or at a nominal
consideration, or at a consideration which is reduced for the purposes
of assisting the recipient, or in recognition of the public interest to
be served by the sale or lease to the recipient; or any Federal
agreement, arrangement, or other contract which has as one of its
purposes the provision of assistance.
b. Recipient: Any State or political subdivision, any
instrumentality of a State or political subdivision, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended, directly or
through another recipient, except that such term does not include any
ultimate beneficiary of the assistance.
c. Person with Limited English Proficiency: A person whose primary
language is not English and whose ability to speak, read, write or
understand the English language does not permit effective interaction
with recipients of Federal financial assistance.
d. Vital Documents: A document or information will be considered
vital if it contains information that is critical for accessing the
recipient's program(s) and/or activities, or is required by law. Thus,
vital documents include, for example, applications; consent forms;
letters and notices pertaining to the reduction, denial or termination
of services or benefits; and letters or notices that require a response
from the beneficiary or client. Generally, entire web sites need not be
translated. Only the vital information or documents within the web site
should be translated. See subparagraph 11b(3) below for further
discussion about web sites.
e. Beneficiary: Individuals and/or entities that directly or
indirectly receive an advantage through the operation of a Federal
program, (i.e., one who is within the serviced population of the
recipient of Federal financial assistance and who ultimately benefits
from those services.)
10. LEP Procedures and Guidelines: Executive Order 13166 (65 FR
50119) provides for a flexible standard stating that recipients of
Federal financial assistance are to take reasonable steps to ensure
meaningful access to their programs and activities by LEP persons.
Thus, it is important that all recipients take the following steps in
determining their LEP responsibilities and providing
[[Page 4029]]
appropriate LEP assistance. These four steps are more fully explained
below, and include: (1) Conduct an assessment of the serviced
population, (2) develop written LEP assistance plans, (3) implement the
LEP plan, and (4) monitor the effectiveness of the LEP plan.
a. Step 1. Conduct an assessment of the serviced population. This
assessment includes identifying the types of service(s) being provided
by the recipient and determining the serviced population (i.e.,
individuals served by the recipient's program(s) and activities).
b. Step 2. Develop written LEP assistance plans. These plans should
address the recipient's LEP responsibilities and the types of LEP
assistance that the recipient will provide, consistent with this policy
guidance. Recipients are to develop a written plan based on a balanced
analysis of the following four factors, to ensure meaningful access for
eligible LEP persons.
(1) Factor 1: Number or Proportion of LEP Persons. One factor in
determining the reasonableness of a recipient's efforts in providing
LEP assistance is the number or proportion of people who will be
excluded from the benefits or services absent efforts to remove
language barriers. The key here is to focus on persons who are eligible
to access the recipient's program or activity.
The steps reasonable for a recipient that serves one LEP person a
year may be different than those expected of a recipient that serves
several LEP persons per day. However, those who serve a few are still
subject to the requirements of Title VI of the Civil Rights Act of 1964
and Executive Order 13166 (65 FR 50119). This plan need not be
intricate, and may be as simple as being prepared to use one of the
commercially available language lines to obtain interpreter services
within a reasonable period of time.
Methods of obtaining estimates of serviced LEP population include
taking a census of contacts with LEP persons over a given period of
time or using demographic data of the service area. The 1990 U. S.
Census information may be found at a local library or on the Internet
at www.Census.gov. The 2000 Census data may not be available until the
2001-02 timeframe. In addition to the U. S. Census, other potential
resources include State and local government offices; the Mayor's
office; the local school superintendent's office; the State education
department; the State social services department, and local hospitals;
or other elected officials offices. Combining these methods will
probably result in the most realistic and accurate estimates.
Local or State Yellow Pages may also be helpful in identifying
organizations that serve or represent particular language minority
populations. Local national origin minority organizations may be able
to provide, or assist in obtaining, certain demographic information
regarding LEP populations in the local area. The information that can
be obtained and the network established in coordinating this type of
effort with members of local and State government offices and minority
organizations may prove to be valuable resources for recipients into
the future.
(2) Factor 2: Frequency of Contact with the Program. Frequency of
contacts between the recipient's program or activity and LEP persons is
another factor to be weighed. For example, if LEP persons must access
the program or activity on a daily basis, the recipient has a greater
LEP responsibility than if such contact is unpredictable or infrequent.
Recipients should take into account local or regional conditions
when determining frequency of contact.
Although past experience may be helpful in determining the
frequency of contact, it should not be used as the exclusive criteria
since the lack of prior LEP notice and assistance may have contributed
to such minimal or non-existent contact.
(3) Factor 3: Nature and Importance of the Program. The importance
of the services or benefits provided to the beneficiaries will affect
the determination of the reasonable steps required. More affirmative
steps are required in those programs where the denial or delay of
access may have life or death implications than in programs that are
not as crucial to one's day-to-day existence. For example, fire
protection services are of more importance to the serviced population
than access to a museum.
Recipients must also consider the importance of the program or
activity to the eligible LEP population, both immediately, as well as
the long-term. (i.e., what is the short-term and long-term impact to
the LEP population if translation assistance is not provided?)
(4) Factor 4: Resources Available. The resources available to a
recipient of Federal financial assistance may impact the steps that
recipients take. For example, a small recipient with limited resources
may not need to take the same steps as a larger recipient to provide
LEP assistance in programs that have a limited number of eligible LEP
persons or where the contact is infrequent. However, small recipients
are still subject to this policy guidance, although the type of LEP
mitigation measures may differ from that of larger recipients. Claims
of limited resources from larger entities should be well substantiated.
A recipient that has limited resources may consider exploring
whether State and local government offices provide translation
assistance. These offices may provide resources for the recipient's
use. Also, recipients may consider contacting local minority
organizations for possible translation assistance.
c. Step 3: Implement the LEP plan. The key to successful
implementation of an effective LEP assistance plan is to ensure that
the serviced population is notified regarding the availability of free
LEP assistance. Also, it is important that a recipient's staff is aware
of LEP responsibilities and the recipient's LEP assistance plan.
(1) Notice of LEP assistance to be provided. Each recipient of
Federal financial assistance is to notify the public of available LEP
assistance at no cost to the LEP person. This may be done through a
brochure or poster in the language(s) identified in the location(s)
where the recipient's federally assisted service(s) and/or benefits are
being provided. Posters should be placed in a conspicuous place to
ensure LEP persons will see it. It may also include posting such notice
on the recipient's internet site(s). Sample language to use for such
notice is as follows: ``Language assistance is available upon request
if you cannot speak or write English very well.''
(2) Ensure staff is aware of LEP responsibilities. Recipients are
to ensure that GSA's policy regarding LEP responsibilities is
communicated to all staff members whose duties may bring them in
contact with LEP persons accessing the services and/or benefits of the
recipient. This communication should ensure an understanding of the
types of LEP assistance being offered by the recipient, and the
mechanisms in place for the staff to use when a request for LEP
assistance is made.
d. Step 4: Monitor the effectiveness of the LEP plan. LEP
assistance requirements may change over a period of time. Therefore, it
is important to regularly monitor, and when appropriate, adjust the LEP
procedures to ensure meaningful access for persons with LEP. New
programs, activities, forms, outreach documents, etc. should be
considered for translation services as they arise. In addition, to be
effective, it is crucial for recipients to re-assess language
assistance services at least every three years to determine the
effectiveness of existing assistance. This
[[Page 4030]]
assessment should include a review of LEP policies and procedures
(i.e., the LEP plan) with the recipient's staff. Feedback from LEP
persons and community-based organizations will also provide helpful
insights into the effectiveness of LEP assistance procedures.
11. Translation Requirements. In determining what is reasonable,
the analysis should address the appropriate mix of written and oral
language assistance. This includes information provided using the
Internet, video and audio. When applying the four factors as outlined
above, decisions should be made regarding which documents must be
translated, when is oral translation necessary and whether such
assistance (i.e., oral or written translation) should be immediately
available or provided within a reasonable period of time.
a. Oral Communication: Depending on the need, options for providing
oral language assistance range from hiring bilingual staff or on-staff
interpreters to contracting for interpreter services as needed,
engaging community volunteers, or contracting with a telephone
interpreter services. Oral communication between recipients and
beneficiaries often is a necessary part of the exchange of information.
Proper analysis should include looking at what kind of communication
(oral or written) you normally provide to an English speaking person in
order to fully communicate the program to them. Thus, there may be
instances where simply providing written translation may not be
providing meaningful access to persons with LEP in the same manner as
that provided to non-LEP beneficiaries.
b. Written Communication: As part of its overall language
assistance program, a recipient's LEP assistance plan should provide
for the translation of certain written materials in languages other
than English, where a significant number or percentage of the
population eligible to be served or likely to be directly affected by
the program, needs services or information in a language other than
English to communicate effectively. See 28 CFR 42.405(d)(1).
(1) In determining what should be translated, identify vital
documents and non-vital documents. Vital documents must be translated
when a significant number or percentage of the population eligible to
be served, or likely to be directly affected by the recipient's
program(s) or activities, seeks services or information in a language
other than English to communicate effectively. For many larger
documents, translation of vital information contained within the
document will suffice and the documents need not be translated in their
entirety. Non-vital documents/information need not be translated.
(2) OCR recognizes that it may sometimes be difficult to draw a
distinction between vital and non-vital documents, particularly when
considering outreach or awareness documents. Although meaningful access
to a program or activity requires an awareness of the program's
existence, OCR recognizes that it would be impossible, from a practical
and cost-based perspective, to translate every piece of outreach
material into every language. Title VI does not require this of its
recipients. However, lack of awareness regarding the existence of a
particular program may effectively deny LEP persons meaningful access.
Thus, it is important that recipients continually survey and assess the
needs of the eligible serviced populations in order to determine
whether certain critical outreach materials should be translated into
other languages.
(3) The same analysis is to be used in determining the translation
of web site information, forms, etc. The decision to place a document
or information on the Internet will not affect whether the document or
information must be translated. For example, placement on the web site
should not change the recipient's original assessment regarding the
number or proportion of LEP persons that comprise the intended audience
for that document or information. Generally, entire web sites need not
be translated. Only the vital information or documents within the web
site should be translated. The four-factor analysis as outlined above
determines the appropriate language(s) for translation. If the four-
factor analysis determines that written information or a document
should be translated, the same written document or information should
be translated on the recipient's web site--if the recipient's English
version of the information or document is on the web site. A notice
regarding the presence of a translated document or information on the
web site should be posted at an initial entry point onto the site
(usually the homepage).
(4) Oral translation assistance will be provided to those persons
with LEP whose language does not exist in written form. This oral
translation assistance will explain the contents of vital documents.
c. Reliability of Translation Resources and Interpretive Services:
In order to provide effective services to LEP persons, it is important
to ensure the use of competent interpreters. Although it is not a
requirement, membership in or accreditation by the American Translators
Association (ATA) is one indicator regarding the reliability and
professionalism of language assistance vendors. However, competency
does not necessarily mean formal certification as an interpreter,
although certification is helpful. Yet, competency refers to more than
being bilingual. It refers to demonstrated proficiency in both English
and the other language, orientation and training that includes the
skills and ethics of interpreting (i.e., issues of confidentiality),
fundamental knowledge in both languages of terms or concepts peculiar
to the program or activity, and sensitivity to the LEP person's
culture.
It is also important to note that in some circumstances, verbatim
translation of materials may not accurately and appropriately convey
the substance of what is contained in the written language. An
effective way to address this concern is to reach out to community-
based organizations to review translated materials to ensure that the
translation is accurate and easily understood by LEP persons.
It is recommended that a different contractor conduct a second
review of a translated document, when such document is of a highly
technical or complex nature. Another method of ensuring reliability of
such documents is to have the document translated back into English to
determine if the source document lost important meaning in its foreign
translation.
Generally, it is not acceptable for recipients to rely upon an LEP
individual's family members or friends to provide the interpreter
services. The recipient should meet its obligations under Title VI by
supplying competent language services free of cost. In rare emergency
situations, the recipient may have to rely on an LEP person's family
members or other persons whose language skills and competency in
interpreting have not been established. Proper planning by recipients
is important in order to ensure that those situations rarely occur.
Therefore, it is not acceptable to rely upon an LEP person to provide
his/her own interpreter, unless the LEP person requests the use of his/
her own interpreter or in the case of an emergency.
12. Examples. The following examples are being provided to
facilitate the assessment, planning and implementation of a successful
LEP plan.
a. Examples of problem areas include: Providing services and/or
benefits to LEP persons that are more limited in scope or lower in
quality than those provided to other individuals;
[[Page 4031]]
subjecting LEP persons to unreasonable delays; limiting participation
in a recipient's program(s) or activities on the basis of English
proficiency; providing services and/or benefits to LEP persons that are
not as effective as those provided to persons proficient in English;
failing to inform LEP persons of the right to receive free interpreter
services; or requiring LEP persons to provide their own interpreter.
b. Examples of satisfactory LEP assistance include: Having policies
and procedures in place for identifying and assessing the language
needs of the recipient's serviced LEP population; providing a range of
oral language assistance options, appropriate to each of the
recipient's circumstances; providing notice to LEP persons of the right
to free language services; communicating LEP responsibilities and
available services to staff members; program monitoring; establishing a
plan for providing written materials in languages other than English
where a significant number or percentage of the affected population
needs services or information in a language other than English.
c. Examples of applying the 4 factors: The following are examples
of how meaningful access will be assessed by OCR:
(1) Example 1. A small child care center has three LEP parents (two
who are Chinese and one who is Cuban) whose English-speaking children
attend its child care center on a regular basis. The center has a staff
of six, and has limited financial resources to afford to hire bilingual
staff, contract with a professional interpreter service, or translate
written documents. To accommodate the language needs of their LEP
parents, the Center made arrangements with a Chinese and a Hispanic
community organization for trained and competent volunteer
interpreters, and with a telephone interpreter language line, to
interpret during parent meetings and to orally translate written
documents. There have been no client complaints of inordinate delays or
other service related problems with respect to LEP clients.
Application of the 4 factors to Example 1: Factor 1: The center has
three LEP parents (a small number); Factor 2: The frequency of contact
is every day, but mostly for greeting; Factor 3: The nature and
importance of the recipient's program to the serviced population
relates to the health, safety and welfare of their children (i.e.,
child care); Factor 4: The child care center has limited resources and
a small staff.
The assistance that the child care center is providing will
probably be considered appropriate, given the center's resources, the
size of staff, and the size of the LEP population. Thus, OCR would find
the center in compliance with Title VI.
(2) Example 2. A county social service program has a large budget
and serves 500,000 beneficiaries. Of the beneficiaries eligible for its
services/benefits, 3,500 are LEP Chinese persons, 4,000 are LEP
Hispanic persons, 2000 are LEP Vietnamese persons and about 400 are LEP
Laotian persons. The county frequently encounters an LEP client, but
has no policy regarding language assistance to LEP persons other than
telling LEP clients to bring their own interpreters. LEP clients are
provided with application and consent forms in English and, if
unaccompanied by their own interpreters, must solicit the help of other
clients or must return at a later date with an interpreter.
Application of the 4 factors to Example 2: Factor 1: The eligible
LEP population is significant; Factor 2: The frequency of contact is
frequent; Factor 3: The nature and importance of the county's program
relates to the social welfare of the community it serves; Factor 4: The
county has a large budget.
Given the size of the county program, its resources, the size of
the eligible LEP population, the frequency of contact and the nature of
the program, OCR would likely find the county in violation of Title VI
and would require it to develop a comprehensive language assistance
program.
d. The intent of this guidance is to provide recipients with
information regarding the requirements of Title VI and its implementing
regulations for providing meaningful access for LEP persons to
federally assisted services and/or benefits. The examples and framework
outlined above are not intended to be exhaustive. Thus, recipients have
considerable flexibility in determining how to comply with their legal
obligation in meeting their LEP responsibilities, and are not required
to use all of the suggested methods and options listed. However,
recipients must establish and implement policies and procedures for
providing language assistance sufficient to fulfill their Title VI
responsibilities.
13. Compliance. All recipients must take reasonable steps
(consistent with this policy guidance) to overcome language differences
that result in barriers and provide the language assistance needed to
ensure that persons with LEP have meaningful access to services and
benefits.
a. The failure to take all of the steps as outlined herein will not
necessarily mean that a recipient has failed to provide meaningful
access to LEP persons. OCR will make assessments on a case by case
basis and will consider several factors in determining whether the
steps taken by a recipient provide meaningful access. (i.e., nature and
importance of recipient's services to the serviced population,
recipient's size, availability of financial and other resources, and
frequency of contact with LEP persons).
b. Those factors include the size of the recipient and the eligible
LEP population, the nature of the program or service, the objectives of
the program, the total resources available, the frequency with which
particular languages are encountered, and the frequency with which LEP
persons come into contact with the recipient's program.
c. There are instances where recipients of Federal financial
assistance from GSA may also be recipients of Federal financial
assistance from other Federal agencies. For instance, hospitals and
health clinics may receive financial assistance from the Department of
Health and Human Services (DHHS); schools and universities may receive
financial assistance from the Department of Education (DOE); police
departments and other law enforcement agencies/organizations may
receive financial assistance from Department of Justice (DOJ). In order
to avoid the potential for confusion with such recipient organizations
as to their LEP responsibilities, OCR will apply, where appropriate,
the Federal agency's LEP guidance that is more specific and/or
stringent regarding LEP responsibilities and assistance.
14. Enforcement. OCR will enforce Title VI, and the recipient's
responsibility to establish LEP procedures and provide appropriate LEP
assistance, consistent with enforcement procedures as provided in Title
VI regulations. These procedures include complaint investigations,
compliance reviews, efforts to secure voluntary compliance, and
technical assistance.
GSA's Title VI regulations provide that OCR will investigate
whenever it receives a complaint, report or other information that
alleges or indicates possible noncompliance with Title VI. 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. If the investigation results in a finding of
noncompliance, OCR will inform the recipient of the noncompliance
through a Letter of Findings that identifies the areas of noncompliance
and the steps that must be taken to correct the noncompliance,
[[Page 4032]]
and will attempt to secure voluntary compliance through informal means.
If the matter cannot be resolved informally, the procedure for
effecting compliance as described at 41 CFR 101-6.211-2, et. seq. will
be followed.
15. Technical Assistance. A program of language assistance should
provide for effective communication between the recipient and the
person with LEP so as to facilitate participation in, and meaningful
access to the services and/or benefits provided by the recipient. The
key to ensuring meaningful access for LEP persons is effective
communication.
OCR is available to provide assistance to recipients seeking to
ensure that they operate an effective language assistance program. In
addition, during its investigative process, OCR is available to provide
technical assistance to enable recipients to come into voluntary
compliance. OCR may be reached at 202-501-0767 or toll free 1-800-662-
6376, or by mail at General Services Administration, Office of Civil
Rights, Title VI, 1800 F Street NW, Suite 5127, Washington, DC, 20405,
for further assistance. Arrangements to receive this policy guidance in
alternative format may be made by contacting OCR.
[FR Doc. 01-1268 Filed 1-16-01; 8:45 am]
BILLING CODE 6820-34-P
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