Office for Civil Rights

Civil Rights on the Basis of Race, Color, or National Origin

Hawaii Department of Human Services Resolution Agreement

Table of Contents

Introduction
Definitions
General Provisions
Specific Provisions
Signatures

I. Introduction

This Resolution Agreement (Agreement) is entered into by the United States Department of Health and Human Services (USDHHS), Office for Civil Rights (OCR) and the Hawaii Department of Human Services (HDHS), as a result of a general review of the policies and procedures of the HDHS relating to language assistance services provided to persons with Limited English proficiency. This Agreement resolves a compliance review, which resulted from the investigation of a complaint, 05-36949, which was filed with OCR in May 2005, alleging that HDHS discriminated against persons with limited English proficiency. In investigating future complaints in this area concerning HDHS� compliance with Title VI, OCR will limit its data request to items particular to that individual complaint, to the extent that policies and other relevant information have already been provided to OCR under the terms of this Agreement. OCR will determine whether each complaint is meritorious regarding the individual issues in the complaint. If the complaint investigation indicates a possible failure of HDHS to comply with the Agreement, OCR will notify HDHS pursuant to Section III.G.

Parties to Agreement
1. United States Department of Health and Human Services (USDHHS), Office for Civil Rights (OCR).
2. Hawaii Department of Human Services (HDHS).
Jurisdiction
HDHS receives Federal financial assistance from the USDHHS, and is subject to Title VI of the Civil Rights Act of 1964, 42 U.S.C. '2000d et seq. (Title VI), and its implementing regulations, 45 C.F.R., Part 80. Title VI prohibits discrimination on the basis of race, color, or national origin in any program or activity receiving Federal financial assistance. The implementing regulations prohibit both intentional discrimination and policies and practices that appear neutral but have a discriminatory effect. Policies that have an adverse effect on the ability of national origin minorities to meaningfully access services may also constitute a violation of Title VI.
Purpose of Agreement
1. HDHS agrees to the terms stipulated in this Agreement and affirms its assurance of compliance with all provisions of Title VI and its implementing regulations. The promises, obligations or other terms and conditions set forth in this Agreement constitute the exchange of valuable consideration between HDHS and OCR.
2. This Agreement shall not be construed as an admission or as evidence that HDHS has not complied with Title VI or its implementing regulations with respect to any particular complaint or investigation.
3. For purposes of this Agreement, �Title VI� shall refer only to those provisions of Title VI that relate to language assistance services provided to persons with limited English proficiency.

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II. Definitions

For the purpose of this Agreement, the terms listed below shall have the following meaning:

Applicant means any person who inquires about or submits an application for public assistance benefits under any HDHS program or service.

Bilingual/Multilingual Staff Volunteer means a HDHS staff member who has demonstrated proficiency in both spoken English and at least one other language, and who can interpret accurately, impartially, and effectively to and from such language and English using any specialized terminology necessary for effective communication, but whose main job responsibilities are other than interpretation. A HDHS staff member who only has a rudimentary familiarity with a language other than English shall not be considered �Bilingual/Multilingual Staff Volunteer� under this agreement.

Frequently-Encountered Language means any language spoken by a significant number or percentage of the population eligible to be served or likely to be directly affected by HDHS' programs and services.

Interpreter means a person who has demonstrated proficiency in both spoken English and at least one other language; and who can interpret accurately, impartially, and effectively to and from such language and English using any specialized terminology necessary for effective communication; and who understands interpreter ethics and client confidentiality needs. A person who has rudimentary familiarity with a language other than English shall not be considered an �interpreter� under this agreement.

Language Assistance means all oral and written language services needed to assist LEP individuals to communicate effectively with HDHS staff and sub-recipients, and to provide LEP individuals with meaningful access to, and an equal opportunity to participate fully in the services, activities, programs, or other benefits administered by HDHS.

Limited-English Proficient (LEP) Individual means an individual who does not speak English as his or her primary language and who has a limited ability to read, write, speak or understand English in a manner that permits him or her to communicate effectively with HDHS and have meaningful access to and an equal opportunity to participate fully in the services, activities, programs, or other benefits administered by HDHS.

Participant means any person who has applied for and is receiving public assistance benefits under any HDHS program or services for which USDHHS funding is received.

Primary Language means the language that an LEP individual identifies as the language that he or she uses to communicate effectively, and is the language which the individual has indicated the individual would prefer to use to communicate with HDHS.

Staff Interpreter means a HDHS staff member whose job is to provide interpretation and translation services.

Sub-recipient means an entity that expends Federal assistance received as a pass-through from HDHS to carry out a federally-funded program, in which the sub-recipient provides services to and has contact with applicants and participants in the same manner as HDHS if HDHS were to administer the program directly, but does not include an individual applicant or participant who is a beneficiary of the program.

Vital Documents shall include, but are not limited to: applications; consent forms; complaint forms; letters or notices pertaining to eligibility for benefits; letters or notices pertaining to the reduction, denial or termination of services or benefits or that require a response from the LEP person; written tests that test competency for a particular license, job, or skill for which knowing English is not required; documents that must be provided by law; and notices regarding the availability of free language assistance services for LEP individuals.

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III. General Provisions

Facilities Covered by Agreement. HDHS has four divisions that function to coordinate and administer specific benefits and services. The Social Services Division (SSD) administers child protective services, adult protective services, medical waiver services, and other home and community-based services. The Med-QUEST Division (MQD) administers health insurance and medical programs to low-income families, including Medicaid. The Benefit, Employment and Support Services Division (BESSD) administers various programs to provide clients with benefits such as Temporary Assistance for Needy Families (TANF), and General Assistance. And The Vocational Rehabilitation and Services to the Blind Division (VRSBD) provides services to eligible persons who are disabled, blind or visually impaired, or deaf or hard of hearing. HDHS has one main office located in Honolulu that administers a $1.7 billion dollar annual budget. HDHS� service area includes the four counties that cover all of the major islands. There are eighty-eight (88) local offices located on five islands with over two thousand three hundred (2,300) permanent staff members.

Effective Date and Duration of Agreement. This Agreement shall become effective on the date it is executed by OCR (Effective Date) and shall remain in effect for three (3) years or until OCR�s written acceptance of the final progress report, whichever date is later. At such time, the Agreement will terminate, provided HDHS is in substantial compliance with the Agreement. Notwithstanding the aforementioned time limitation, HDHS acknowledges that it will comply with Title VI for so long as it continues to receive Federal financial assistance.

HDHS's Continuing Obligation. Nothing in this Agreement is intended to relieve HDHS of its obligation to comply with other applicable non-discrimination statutes and their implementing regulations.

Effect on Other Compliance Matters. The terms of this Agreement do not apply to any other issues, investigations, reviews, or complaints of discrimination that are unrelated to the subject matter of this Agreement and that may be pending before OCR or any other Federal Agency. Any compliance matters arising from reviews or investigations of specific complaints will be addressed and resolved separately from this Agreement. OCR may review complaints against HDHS that are received on or after the Effective Date of this Agreement that concern the laws, regulations, issues and subject matter covered by this Agreement. Nothing in this Agreement shall be construed to limit or restrict OCR's statutory and regulatory authority to conduct complaint investigations and compliance reviews.

Prohibition Against Retaliation and Intimidation. HDHS shall not retaliate, intimidate, threaten, coerce, or discriminate against any person who has filed a complaint, assisted, or participated in any manner in the investigation of matters addressed in this Agreement.

OCR's Review of HDHS's Compliance with Agreement. OCR may, at any time, review HDHS� compliance with this Agreement. As part of such review, OCR may require HDHS to provide written reports, permit inspection of offices, interview staff members, and allow OCR to examine and copy documents. HDHS agrees to retain records required by OCR to assess its compliance with the Agreement, as described in Section IV.T., and to submit the requested reports to OCR as specified above.

Failure to Comply with the Terms of Agreement. If at any time OCR determines that HDHS has failed to comply with any provision of this Agreement, OCR shall notify HDHS in writing. On notice to HDHS, OCR may shorten the time frame outlined below, if it determines that a delay would result in injury to a complainant or to other affected persons.
1. The notice shall include a statement of the basis for OCR's determination and will allow HDHS thirty (30) working days from receipt of the notice to either:
2. If HDHS does not respond to the notice or, if upon review of HDHS' response, OCR finds that HDHS has not substantially complied with the terms of this Agreement, OCR may, upon notice to HDHS, initiate any applicable proceedings under Federal law. Specifically, OCR may:
Non-Waiver Provision. Failure by OCR to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision shall not be construed as a waiver of OCR's right to enforce other deadlines or any other provision of this Agreement.

Entire Agreement. This Agreement constitutes the entire understanding between HDHS and OCR in resolution of Transaction Number 08-82040. Any statement, promise, or agreement not contained herein shall not be enforceable through this Agreement.

Modification of Agreement. This Agreement may be modified by mutual agreement of the parties in writing.

Effect of HDHS Program Changes. HDHS reserves the right to change or modify its programs, so long as HDHS ensures compliance with Title VI and its implementing regulations, other applicable state and federal laws, and the provisions of this Agreement. Significant program changes that may affect compliance with this Agreement or any applicable statutes and regulations within OCR�s jurisdiction must be reported to OCR promptly.

Publication or Release of Agreement. OCR places no restrictions on the publication of the terms of this Agreement. In addition, OCR may be required to release the Agreement and all related materials to any person upon request consistent with the requirements of the Freedom of Information Act, 5 U.S.C. '552, and its implementing regulations, 45 C.F.R. Part 5.

Authority of Signer. The individual who signs this document on behalf of HDHS represents that he or she is authorized to bind HDHS to this Agreement.

Third Party Rights. This Agreement can only be enforced by the parties specified in this Agreement, their legal representatives and assigns. This Agreement shall be unenforceable by third parties and shall not be construed to create third party beneficiary rights.

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IV. Specific Provisions

Recognition. HDHS recognizes that LEP individuals need language assistance services to access and fully participate in programs and activities operated by HDHS. Pursuant to HDHS policy, HDHS is committed to providing competent language assistance at no cost and in a timely manner to LEP individuals to ensure meaningful access to, and an equal opportunity to participate fully in, the services, activities, programs, or other benefits administered by HDHS. This includes ensuring effective communication with LEP individuals by HDHS staff members and/or sub-recipients.

Develop and Implement Policy. Within six (6) months of the Effective Date of this Agreement, HDHS shall develop a written policy, and three (3) months thereafter implement procedures, to provide language assistance to LEP individuals pursuant to Section IV.A. of this Agreement and Title VI. These policies and procedures shall be compiled into a deskbook, and made available to staff and sub-recipients.

Assessment for Determining Linguistic Needs
1. Determining the Language Needs of the Affected Population. Within six (6) months of the Effective Date of this Agreement, and annually thereafter, HDHS shall assess the language needs of LEP individuals who are eligible for services and are likely to be directly affected by its programs. The assessment shall identify the following:
  1. The frequently encountered languages in HDHS' programs.
  2. An estimate of the number of LEP individuals likely to be directly affected by HDHS' programs and their languages by reviewing various sources including but not limited to:
    1. Census data;
    2. Utilization data from LEP individuals' files;
    3. School system data;
    4. Data from state and local governments;
    5. Data from community agencies and organizations; and
    6. Information from refugee/immigrant agencies.
  3. The points of contact within HDHS� programs and HDHS� contracted programs where language assistance is likely to be needed.
  4. The locations and availability of language assistance resources, and arrangements that must be made to access these resources in a timely manner. This shall include the number of bilingual/multilingual staff volunteers, staff interpreters, contracted interpreters and community volunteer interpreters required at each HDHS office, and the resources needed to translate documents, as required.
  5. Existing vital documents and a process for determining which later-created documents are vital documents.
2. Determining the Language Needs of Each LEP Individual. Within six (6) months of the Effective Date of this Agreement, HDHS shall develop and implement a system for determining the primary language of each LEP individual at the first point of contact.
  1. In-person Communication. Upon a staff member's initial encounter with an LEP individual for whom the staff member cannot personally provide language assistance, the staff member will determine the individual's primary language utilizing one of the following:
    1. Multi-language identification cards or "I speak" cards;
    2. Poster-size language list; or
    3. If the LEP person does not read or recognize any of the languages included in one of the methods described above, HDHS shall use a telephone interpreting service to identify the individual's primary language.
    Upon identification of the LEP individual�s primary language, the HDHS staff member will refer the individual to a pre-printed statement in the individual's primary language that reads, "Please wait while I obtain an interpreter."
  2. Telephone Communication. When a staff person places or receives a telephone call and cannot determine the language spoken by the person on the line, a telephone interpreter services provider will be contacted to make an assessment of the language spoken by the other party and to assist the other party as necessary.
  3. Documentation. The primary language of each LEP individual shall be documented in the individual's record to alert staff that language assistance services must be provided.
Notifying LEP Individuals of the Availability of Free Language Assistance.
Within thirty (30) days of the Effective Date of this Agreement, HDHS shall provide meaningful notice to LEP individuals of the right to free language assistance and the process for filing and resolving complaints about such services with HDHS. The notice shall include:
1. Posters and signs translated into frequently-encountered languages prominently displayed in each HDHS office, in waiting rooms, reception areas, and other initial points of entry;
2. Brochures or flyers translated into frequently-encountered languages providing notice to community organizations;
3. Statements included on application forms and informational material disseminated to the public.
Request for an Interpreter. If an LEP individual requests an interpreter, one shall be provided. Under no circumstances shall a staff member make a determination of the need for an interpreter based solely on whether an LEP individual can answer short questions by nodding, or through the use of questions to which the answers are simply, "yes," or, "no."

Oral Language Services (Interpretation)
1. Within thirty (30) days of the Effective Date of this Agreement, HDHS shall provide interpretation, pursuant to Section IV.H. of this Agreement, for LEP individuals who need such assistance to communicate effectively with HDHS staff, and for all other HDHS contracted programs and services. HDHS may utilize any of the following language assistance resources to the extent such resources result in effective communication:
  1. Bilingual or multilingual staff volunteers;
  2. In-person interpreters procured by HDHS;
  3. HDHS language phone banks staffed with bilingual/multilingual staff volunteers;
  4. Volunteer interpreters from community organizations;
  5. Telephone interpreter services procured by HDHS; or
  6. Staff interpreters.
2. HDHS shall ensure that, regardless of the type of language assistance provided, the language assistance provider is competent to interpret or translate, pursuant to Section IV.K. of this Agreement.
3. HDHS will develop, and ensure that each HDHS office maintains a list identifying all available language interpreters, telephone language lines, and other services and resources. The list shall identify all of the following:
  1. The name and telephone number of every language assistance resource or interpreter available to the office;
  2. The location of the office to which an interpreter is assigned, if the interpreter is a staff member of HDHS;
  3. The languages for which each interpreter is qualified;
  4. The hours and days the interpreter or resource is available; and
  5. The procedure by which each interpreter or resource shall be accessed by staff.
Translation of Written Documents.
1. Within six (6) months after the Effective Date of this Agreement, HDHS shall identify existing vital documents and shall establish a process for determining which later-created documents are "vital" to the meaningful access of the LEP populations served.
2. Within one (1) year of the Effective Date of this Agreement, HDHS shall translate existing vital documents into any language spoken by five percent (5%) of the total population eligible to be served or likely to be directly affected or encountered by HDHS' programs, or one thousand (1000) persons in that population, whichever is less; later-created vital documents shall be translated into the same languages within a reasonable time of being created, but not to exceed one (1) year.
3. If there are fewer than fifty (50) persons in a language group thatreaches the five percent (5%) trigger, HDHS may, in lieu of translating the vital documents, elect to provide written notice in the primary language of the LEP language group of the right to receive competent oral translation of the vital documents, free of cost to the LEP individual.
4. HDHS shall develop a process for ensuring that documents submitted by an LEP individual in the LEP individual�s primary language are translated without undue delay.
Timely Competent Language Assistance. HDHS shall ensure that each LEP individual receives competent oral and written language assistance services necessary to ensure meaningful access to HDHS programs, pursuant to Section IV.A. of this Agreement and Title VI.

HDHS may offer to schedule appointments for LEP individuals at specified times in order to minimize waiting times and to ensure the availability of appropriate qualified language interpreters, provided that the use of an appointment facilitates the provision of language assistance and does not impede or delay the individual's access to benefits and/or services provided by HDHS.

Language Assistance Resources. Based on the language needs assessment conducted pursuant to Section IV.C. of this Agreement, HDHS shall annually determine what resources and arrangements are needed to provide sufficient language assistance services in a timely manner for oral and written communication. HDHS shall hire appropriate staff or utilize outside agencies as required to provide necessary services.

Telephone Communication. HDHS shall provide uniform procedures for timely and effective telephone communication between staff members and LEP individuals.

Language Assistance Standards. HDHS shall ensure that HDHS staff interpreters, bilingual/multilingual staff volunteers, and community program volunteers providing language assistance services, including interpretation and translation, are capable of competently performing their duties. Competency of bilingual/multilingual staff volunteers and community program volunteers may be established by a variety of means including self-attestation of the volunteer after having reviewed the interpreter competency standards. Whether self-attestation or another means is used to establish competency, HDHS shall take reasonable steps to ensure that the individual providing the interpretation is capable of facilitating effective communication between LEP persons and HDHS in accordance with Section II. E. of this Agreement. Standards for interpreter competency shall include the following:
1. Communicate in both English and the LEP individual�s primary language accurately and effectively;
2. Interpret to and from English and the LEP individual�s primary language accurately and impartially;
3. Possess appropriate knowledge of specialized terms and concepts used frequently in the provision of the HDHS' services and programs;
4. Understand and follow the obligation to maintain confidentiality;
5. Understand the roles of interpreters and the ethics associated with being an interpreter (HDHS will use and inform staff of the ethics associated with being an interpreter through the use of guidance issued by the Office of Language Access in the Hawaii Department of Labor and Industrial Relations); and
6. For those providing written translations, have the ability to translate written documents effectively.
Use of Family or Friends as Interpreters. The parties recognize that LEP individuals may seek to use family members or friends as interpreters. Regardless, HDHS shall not require an LEP individual to utilize family members or friends to provide interpretation or translation services, and must make the LEP individual aware that he or she has the option of HDHS providing an interpreter at no cost. In addition:
1. If, after the offer of free language assistance in his or her primary language, an LEP individual elects to use a family member or friend to provide interpretation, HDHS shall take reasonable steps to determine whether the individual providing the interpretation is competent to provide this service. Further, HDHS shall take reasonable steps to determine whether conflict of interest, confidentiality or other concerns make use of the family member or friend inappropriate. These concerns are heightened and require the exercise of significant caution, if the LEP individual asks to have a minor provide interpretation. If the family member or friend is not competent or appropriate under the circumstances, HDHS shall provide interpreter services in place of or, if appropriate, in addition to the person selected by the LEP individual.
2. For each LEP individual who declines the offer for HDHS to provide an interpreter at no cost, HDHS staff shall document in the LEP individual's record:
  1. that an offer was made for HDHS to provide an interpreter free of cost;
  2. that the offer was declined; and
  3. the name of the family member or friend who provided language assistance at the LEP individual's request, if any.
3. HDHS shall inform an LEP individual who has declined the offer for HDHS to provide an interpreter at no cost that the individual may reconsider and request an interpreter at any time.
Civil Rights Compliance Office. The HDHS Civil Rights Compliance Office shall have overall responsibility for coordinating HDHS� comprehensive language assistance services and directing compliance with this Agreement, including but not limited to:
1. Serving as a liaison between HDHS and USDHHS, and other stakeholders serving LEP individuals; and
2. Performing other duties identified in HDHS policies and procedures that will be submitted pursuant to Part IV.B. of this Agreement.
Administrative Responsibilities. HDHS shall identify appropriate administrative personnel at each level of the organization (i.e. division, branches, unit, etc.) who will coordinate language assistance services for their respective levels. The identified personnel shall have responsibility for directing compliance with Title VI and implementation of this Agreement at their respective levels, including but not limited to:
1. Distributing to the appropriate HDHS staff members the policies and procedures regarding language assistance, the guide referred to in Section IV.B. of this Agreement, and the list of available language assistance services in Section IV.F. of this Agreement;
2. Consulting with the Civil Rights Compliance Office on the development and implementation of staff training pursuant to Section IV. O. of this Agreement;
3. Collecting internal data pursuant to Section IV.T., of this Agreement; and
4. Performing other duties as identified in policies and procedures submitted pursuant to Section IV.B. of this Agreement.
Training. Within six (6) months of the Effective Date of this Agreement, HDHS will develop and implement mandatory staff training for all supervisors and for staff members who have regular contact with applicants and participants on the HDHS policies and procedures for communicating with and serving LEP individuals. Thereafter, training on these policies and procedures shall be conducted annually and at orientation for new employees, or at least within three (3) months of employment. Training may be conducted online and be self-paced with acknowledgement of understanding by the trainees.

Complaint Procedures. Within thirty (30) days of the Effective Date of this Agreement, HDHS will develop and implement uniform procedures for receiving and responding to complaints and concerns from LEP individuals who need language assistance services. The complaints will be forwarded to the Civil Rights Compliance Office for review and disposition.

Notice of Non-Discrimination Policy. Within thirty (30) days of the Effective Date of this Agreement, HDHS shall develop and post, in each area in which applicants and participants wait for service at each office, a notice of its non-discrimination policy.

HDHS Sub-recipients. HDHS shall ensure that all applicable sub-recipients are informed of the LEP requirements of Title VI and this Agreement. HDHS shall provide information and oversee the applicable sub-recipients as necessary to monitor compliance with these requirements.

Monitoring. To ensure effective language assistance and access to services, HDHS shall develop and implement a program to monitor the provision of language assistance services to LEP individuals and compliance with this Agreement. As part of the monitoring program, HDHS may:
1. Review LEP individuals' case records to assess whether primary languages are properly recorded in all case records and whether such persons are provided adequate language assistance services;
2. Review complaints filed by LEP individuals to determine adequacy of language assistance services;
3. Assess HDHS staff and sub-recipient�s knowledge about HDHS� language assistance policies and procedures;
4. Review the accuracy of the list containing the availability of bilingual staff, interpreters, and other resources;
5. Request feedback from LEP individuals and advocates;
6. Review the development and distribution of translated documents and posting of signs in public assistance offices;
7. Assist with the recruitment and assignment of bilingual staff, if applicable;
8. Analyze the impact of all procedural and policy changes affecting LEP individuals;
9. Reassess the linguistic needs of the affected population by conducting the Assessment for Determining Linguistic Needs described in Section IV.C.; and
10. Develop and conduct a self-testing program which may include:
  1. Unannounced site visits to a sampling of randomly selected offices to be conducted no less than every six (6) months, beginning from the Effective Date of this Agreement; and
  2. Requests for public assistance information in languages other than English by testers.
HDHS Internal Data Collection. HDHS shall maintain a record-keeping system that assures the ready availability of data regarding the provision of language assistance services to LEP individuals.
1. HDHS shall record the primary language spoken by each LEP person in its computer record keeping system.
2. HDHS shall record in an LEP individual�s file the primary language of the individual, the type of language assistance provided, if any, and if a family member or friend of the LEP individual provided interpretation, the name of the family member or friend, pursuant to Section IV. L. of this Agreement.
3. HDHS shall identify, in consultation with OCR, any other data needed to ascertain compliance with this Agreement, which may include but is not limited to:
  1. The number of LEP individuals served, by primary language; and
  2. The number and type of language assistance services provided.
Reporting Requirements to OCR
1. HDHS shall submit written policies and procedures pursuant to Section IV.B. of this Agreement for OCR�s review and comment within sixty (60) days of the Effective Date of this Agreement.
2. HDHS shall provide to OCR, every six (6) months, progress reports to show compliance with the Agreement, beginning six (6) months from the Effective Date of this Agreement.
3. In addition to the semi-annual progress reports, HDHS shall submit to OCR, within ninety (90) days of the Effective Date of this Agreement, a preliminary report on the data collected pursuant to Section IV.T. of this Agreement.
4. HDHS, in consultation with OCR, shall determine the content and the form for each report submitted pursuant to this Section.
Notice of Availability of Free Language Assistance Services

Within thirty (30) days of the Effective Date of this Agreement, HDHS shall send a notice of the availability of free language assistance services to community agencies serving LEP individuals in HDHS� service area.

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V. Signatures

_/s/___________________________________________
Lillian B. Koller
Director
Hawaii Department of Human Services

August 12, 2008
Date

_/s/_____________________________________________
Michael F. Kruley
Regional Manager U.S. Department of Health and Human Services
Office for Civil Rights
Region IX

August 12, 2008
Date

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Last revised: September 2, 2008

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