[Federal Register: July 23, 2003 (Volume 68, Number 141)]
[Notices]
[Page 43519-43530]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jy03-55]
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GENERAL SERVICES ADMINISTRATION
[2003-N04]
Guidance to Federal Financial Assistance Recipients Regarding
Title VI Prohibition Against National Origin Discrimination Affecting
Limited English Proficient Persons
AGENCIES: Office of Civil Rights, General Services Administration
(GSA).
ACTION: Notice of interim final policy guidance document.
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SUMMARY: The General Services Administration (GSA) is publishing for
public comment interim final policy guidance on Title VI's prohibition
against national origin discrimination as it affects limited English
proficient (LEP) persons. This guidance will become final after a 30-
day comment period unless GSA determines that the comments require
further modification to the guidance. Once final, this policy guidance
will supplant the policy guidance published on January 17, 2001.
DATES: Submit comments on or before August 22, 2003. GSA will review
all comments and will determine what modifications, if any, to this
policy guidance are necessary. Because this guidance must adhere to the
Federal-wide compliance standards and framework detailed in the model
U.S. Department of Justice's LEP guidance, GSA specifically solicits
comments on the nature, scope, and appropriateness of the GSA-specific
examples set out in this guidance explaining and/or highlighting how
those consistent Federal-wide compliance standards are applicable to
recipients of Federal financial assistance through GSA.
ADDRESSES: Interested persons should submit written comments to Ms.
Regina Budd, Deputy Associate Administrator, Office of Civil Rights,
General Services Administration, 1800 F Street, NW., Suite 5127,
Washington, DC 20405. Comments may also be submitted by facsimile at
(202) 219-3369 or at e-mail OCR@gsa.gov.
FOR FURTHER INFORMATION CONTACT: The Regulatory Secretariat, Room 4035,
GS Building, Washington, DC, 20405, (202) 208-7312, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Evelyn Britton at the Office of Civil Rights,
General Services Administration, 1800 F Street, NW., Washington, DC
20405. Telephone (202) 501-0767; 1-800-662-6376; TDD 1-888-267-7660.
[[Page 43520]]
SUPPLEMENTARY INFORMATION: The purpose of this policy guidance is to
further clarify the responsibilities of recipients of Federal financial
assistance from GSA and assist them in fulfilling their
responsibilities to limited English proficient (LEP) persons, pursuant
to Title VI of the Civil Rights Act of 1964 and GSA implementing
regulations. The policy guidance explains that to avoid discrimination
against LEP persons on the ground of national origin, recipients must
take reasonable steps to ensure that LEP persons have meaningful access
to the programs, services, and information those recipients provide,
free of charge.
GSA's guidance for recipients was originally published on January
17, 2001, and became effective immediately. (See 66 FR 4026.) That
document, like the following guidance, was based on policy guidance
issued by the Department of Justice entitled ``Enforcement of Title VI
of the Civil Rights Act of 1964--National Origin Discrimination Against
Persons with Limited English Proficiency.'' (See 65 FR 50123, August
16, 2000.)
On February 20, 2002, the GSA re-published its recipient guidance
for additional public comment. (See 67 FR 7692.) Comments representing
24 different organizations were received, and the following guidance
was developed after review and consideration of those comments. Prior
comments on the original guidance need not be re-submitted.
On March 14, 2002, the Office of Management and Budget (OMB) issued
a Report to Congress titled ``Assessment of the Total Benefits and
Costs of Implementing Executive Order No. 13166: Improving Access to
Services for Persons with Limited English Proficiency.'' The Report
made several recommendations designed to minimize confusion and ensure
that funds dedicated to LEP services best advance meaningful access for
LEP individuals.
One significant recommendation was the adoption of uniform guidance
across all Federal agencies, with flexibility to permit tailoring to
each agency's specific recipients. In a memorandum to all Federal
funding agencies dated July 8, 2002, Assistant Attorney General Ralph
Boyd of DOJ's Civil Rights Division requested that agencies model their
agency-specific guidance for recipients after sections I through VIII
of DOJ's June 18, 2002, guidance. Therefore, this guidance is modeled
after the language and format of DOJ's revised, final guidance,
``Guidance to Federal Financial Assistance Recipients Regarding Title
VI Prohibition Against National Origin Discrimination Affecting Limited
English Proficient Persons'', published on June 18, 2002, 67 FR 41455.
It has been determined that the guidance does not constitute a
regulation subject to the rulemaking requirements of the Administrative
Procedure Act, 5 U.S.C. 553.
The text of the complete guidance document appears as an attachment
to this notice.
Dated: July 1, 2003.
Madeline Caliendo,
Associate Administrator, Office of Civil Rights.
I. Introduction
Most individuals living in the United States read, write, speak and
understand English. There are many individuals, however, for whom
English is not their primary language. For instance, based on the 2000
census, over 26 million individuals speak Spanish and almost 7 million
individuals speak an Asian or Pacific Island language at home. If these
individuals have a limited ability to read, write, speak, or understand
English, they are limited English proficient, or ``LEP.'' While
detailed data from the 2000 census has not yet been released, 26% of
all Spanish-speakers, 29.9% of all Chinese-speakers, and 28.2% of all
Vietnamese-speakers reported that they spoke English ``not well'' or
``not at all'' in response to the 1990 census.
Language for LEP individuals can be a barrier to accessing
important benefits or services, understanding and exercising important
rights, complying with applicable responsibilities, or understanding
other information provided by federally funded programs and activities.
The Federal Government funds an array of services that can be made
accessible to otherwise eligible LEP persons. The Federal Government is
committed to improving the accessibility of these programs and
activities to eligible LEP persons, a goal that reinforces its equally
important commitment to promoting programs and activities designed to
help individuals learn English. Recipients should not overlook the
long-term positive impacts of incorporating or offering English as a
Second Language (ESL) programs in parallel with language assistance
services. ESL courses can serve as an important adjunct to a proper LEP
plan. However, the fact that ESL classes are made available does not
obviate the statutory and regulatory requirement to provide meaningful
access for those who are not yet English proficient. Recipients of
Federal financial assistance have an obligation to reduce language
barriers that can preclude meaningful access by LEP persons to
important government services.\1\
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\1\ GSA recognizes that many recipients had language assistance
programs in place prior to the issuance of Executive Order 13166.
This policy guidance provides a uniform framework for a recipient to
integrate, formalize, and assess the continued vitality of these
existing and possibly additional reasonable efforts based on the
nature of its program or activity, the current needs of the LEP
populations it encounters, and its prior experience in providing
language services in the community it serves.
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In certain circumstances, failure to ensure that LEP persons can
effectively participate in or benefit from Federally assisted programs
and activities may violate the prohibition under Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d and Title VI regulations against
national origin discrimination. The purpose of this policy guidance is
to assist recipients in fulfilling their responsibilities to provide
meaningful access to LEP persons under existing law. This policy
guidance clarifies existing legal requirements for LEP persons by
providing a description of the factors recipients should consider in
fulfilling their responsibilities to LEP persons.\2\ These are the same
criteria GSA will use in evaluating whether recipients are in
compliance with Title VI and Title VI regulations.
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\2\ The policy guidance is not a regulation but rather a guide.
Title VI and its implementing regulations require that recipients
take responsible steps to ensure meaningful access by LEP persons.
This guidance provides an analytical framework that recipients may
use to determine how best to comply with statutory and regulatory
obligations to ensure meaningful access to the benefits, services,
information, and other important portions of their programs and
activities for individuals who are limited English proficient.
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In a memorandum to all Federal funding agencies, dated July 8,
2002, Assistant Attorney General Ralph Boyd of the U.S. Department of
Justice's (DOJ) Civil Rights Division requested that agencies model
their agency-specific guidance for recipients after Sections I-VIII of
DOJ's June 18, 2002 guidance. Therefore, this guidance is modeled after
the language and format of the DOJ's revised, final guidance,
``Guidance to Federal Financial Assistance Recipients Regarding Title
VI Prohibition Against National Origin Discrimination Affecting Limited
English Proficient Persons'', published June 18, 2002, 67 FR 41455. The
DOJ's role under Executive Order 13166 is unique. The Order charges DOJ
with responsibility for providing LEP Guidance to other Federal
agencies and for ensuring consistency among each agency-specific
guidance. Consistency among Federal agencies is particularly important.
Inconsistency or contradictory guidance could confuse
[[Page 43521]]
recipients of Federal funds and needlessly increase costs without
rendering the meaningful access for LEP persons that this Guidance is
designed to address. As with most government initiatives, this requires
balancing several principles. While this Guidance discusses that
balance in some detail, it is important to note the basic principles
behind that balance. First, we must ensure that Federally-assisted
programs aimed at the American public do not leave some behind simply
because they face challenges communicating in English. This is of
particular importance because, in many cases, LEP individuals form a
substantial portion of those encountered in Federally-assisted
programs. Second, we must achieve this goal while finding constructive
methods to reduce the costs of LEP requirements on small businesses,
small local governments, or small non-profits that receive Federal
financial assistance.
There are many productive steps that the Federal government, either
collectively or as individual grant agencies, can take to help
recipients reduce the costs of language services without sacrificing
meaningful access for LEP persons. Without these steps, certain smaller
grantees may well choose not to participate in Federally assisted
programs, threatening the critical functions that the programs strive
to provide. To that end, GSA plans to continue to provide assistance
and guidance in this important area. An interagency working group on
LEP has developed a Web site, http://www.lep.gov, to assist in
disseminating this information to recipients, Federal agencies, and the
communities being served.
Many commentators have noted that some have interpreted the case of
Alexander v. Sandoval, 532 U.S. 275 (2001), as impliedly striking down
the regulations promulgated under Title VI that form the basis for the
part of Executive Order 13166 that applies to Federally assisted
programs and activities. We have taken the position that this is not
the case, and will continue to do so. Accordingly, we will strive to
ensure that Federally assisted programs and activities work in a way
that is effective for all eligible beneficiaries, including those with
limited English proficiency.
II. Legal Authority
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d, provides that no person 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.'' Section 602
authorizes and directs Federal agencies that are empowered to extend
Federal financial assistance to any program or activity ``to effectuate
the provisions of [section 601] * * * by issuing rules, regulations, or
orders of general applicability.'' 42 U.S.C. 2000d-1. GSA regulations
promulgated pursuant to section 602 forbid recipients from
``utiliz[ing] criteria or methods of administration which have the
effect of subjecting individuals to discrimination because of their
race, color, or national origin, or have the effect of defeating or
substantially impairing accomplishment of the objectives of the program
as respects individuals of a particular race, color, or national
origin.'' 41 CFR 101.6.204-2(a)(2). The Supreme Court, in Lau v.
Nichols, 414 U.S. 563 (1974), interpreted regulations promulgated by
the former Department of Health, Education, and Welfare to hold that
Title VI prohibits conduct that has a disproportionate effect on LEP
persons because such conduct constitutes national origin
discrimination. In ``Lau,'' a San Francisco school district that had a
significant number of non-English speaking students of Chinese origin
was required to take reasonable steps to provide them with a meaningful
opportunity to participate in Federally funded educational programs.
On August 11, 2000, Executive Order 13166 was issued. ``Improving
Access to Services for Persons with Limited English Proficiency,'' 65
FR 50121 (August 16, 2000). Under that order, every Federal agency that
provides financial assistance to non-Federal entities must publish
guidance on how their recipients can provide meaningful access to LEP
persons and thus comply with Title VI regulations forbidding funding
recipients from ``restrict[ing] 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'' or from
``utiliz[ing] criteria or methods of administration which have the
effect of subjecting individuals to discrimination because of their
race, color, or national origin, or have the effect of defeating or
substantially impairing accomplishment of the objectives of the program
as respects individuals of a particular race, color, or national
origin.''
On that same day, DOJ issued a general guidance document addressed
to ``Executive Agency Civil Rights Officers'' setting forth general
principles for agencies to apply in developing guidance documents for
recipients pursuant to the Executive Order. ``Enforcement of Title VI
of the Civil Rights Act of 1964 National Origin Discrimination Against
Persons With Limited English Proficiency,'' 65 FR 50123 (August 16,
2000) (``DOJ LEP Guidance'').
Subsequently, Federal agencies raised questions regarding the
requirements of the Executive Order, especially in light of the Supreme
Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001). On
October 26, 2001, Ralph F. Boyd, Jr., Assistant Attorney General for
the Civil Rights Division, issued a memorandum for ``Heads of
Departments and Agencies, General Counsels and Civil Rights
Directors.'' This memorandum clarified and reaffirmed the DOJ LEP
Guidance in light of Sandoval.\3\ The Assistant Attorney General stated
that because Sandoval did not invalidate any Title VI regulations that
proscribe conduct that has a disparate impact on covered groups--the
types of regulations that form the legal basis for the part of
Executive Order 13166 that applies to Federally assisted programs and
activities--the Executive Order remains in force.
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\3\ The memorandum noted that some commentators have interpreted
Sandoval as impliedly striking down the disparate-impact regulations
promulgated under Title VI that form the basis for the part of
Executive Order 13166 that applies to Federally assisted programs
and activities, See, e.g., Sandoval 532 U.S. at 286, 286 n.6 (``[W]e
assume for purposes of this decision that section 602 confers the
authority to promulgate disparate-impact regulation; * * * We cannot
help observing, however, how strange it is to say that disparate-
impact regulations are `inspired by, at the service of, and
inseparably intertwined with' Sec. 601 * * * when Sec. 601 permits
the very behavior that the regulations forbid.''). The memorandum,
however, made clear that DOJ disagreed with the commentators'
interpretation. Sandoval holds principally that there is no private
right of action to enforce Title VI disparate-impact regulations. It
did not address the validity of those regulations or Executive Order
13166 or otherwise limit the authority and responsibility of Federal
grant agencies to enforce their own implementing regulations.
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Pursuant to Executive Order 13166, GSA developed its own guidance
document for recipients and initially issued it on January 17, 2001,
``Limited English Proficiency Policy Guidance for recipients of Federal
Financial Assistance,'' 66 FR 4026 (January 17, 2001) (``LEP Guidance
for GSA Recipients''). Because GSA did not receive any public comment
on its January 17, 2001 publication, the Agency republished on February
20, 2002 its existing guidance document for additional public comment,
``Limited English Proficiency Policy Guidance for Recipients of Federal
Financial Assistance,'' 67 FR 7692 (February 20, 2002). GSA has since
received
[[Page 43522]]
significant public comment. This guidance document is thus published
pursuant to Executive Order 13166. Once final it will supplant the
January 17, 2001 publication in light of the public comment received
and Assistant Attorney General Boyd's October 26, 2001 clarifying
memorandum and July 8, 2002 memorandum advising agencies to revise and
re-publish their guidance, modeled after DOJ's June 18, 2002 final
guidance.
III. Who Is Covered?
GSA's implementation regulations provide, in part, at 41 CFR 101-
6.204-1:
``No person in the United States shall, on the grounds 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 * * *.''
Federal financial assistance includes grants, training, use of
equipment, donations of surplus property, and other assistance.
Recipients of GSA assistance include, for example: \4\
\4\ Pursuant to Executive Order 13166, the meaningful access
requirement of the Title VI regulations and the four-factor analysis
set forth in the GSA LEP Guidance are to additionally apply to the
programs and activities of Federal agencies, including the GSA.
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--State and local 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; and
--Nonprofit organizations that perform educational and public health
activities exempt from taxation under section 501 of the Internal
Revenue such as: Medical institutions; hospitals; clinics; health
centers; and drug abuse treatment centers; schools; universities; Head
Start; childcare centers; educational radio and television stations;
museums attended by the public; libraries; food banks; and other
eligible organizations that provide support and services to the needy,
shelter, or support services to the homeless or impoverished.
Subrecipients likewise are covered when Federal funds are passed
through from one recipient to a subrecipient. Coverage extends to a
recipient's entire program or activity, i.e., to all parts of a
recipient's operations. This is true even if only one part of the
recipient receives the Federal assistance.\5\
\5\ However, if a Federal agency were to decide to terminate
Federal funds based on noncompliance with Title VI or its
regulations, only funds directed to the particular program or
activity that is out of compliance would be terminated. 42 U.S.C.
2000d-1.
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Example: GSA donates a surplus backhoe and grader to a State
park within the State Department of Parks and Recreation. All of the
operations of the entire State Department of Parks and Recreation--
not just the particular park that received the property--are
covered.
Finally, some recipients operate in jurisdictions in which English
has been declared the official language. Nonetheless, these recipients
continue to be subject to Federal non-discrimination requirements,
including those applicable to the provision of Federally assisted
services to persons with limited English proficiency.
IV. Who Is a Limited English Proficient Individual?
Individuals who do not speak English as their primary language and
who have a limited ability to read, write, speak, or understand English
can be limited English proficient, or ``LEP,'' entitled to language
assistance with respect to a particular type of service, benefit, or
encounter.
Examples of populations likely to include LEP persons who are
encountered and/or served by GSA recipients and should be considered
when planning language services include, but are not limited to:
--Persons seeking assistance from a county's emergency services, such
as 9-1-1 service, which include individuals reporting automobile
accidents, fires, criminal, or other activity; and individuals who
encounter the legal system;
--Parents or other family members seeking information about childcare
and educational services; and
--Individuals seeking services from homeless shelters, domestic abuse
shelters, food banks, clinics, hospitals, medical institutions, or
health-care providers.
V. How Does a Recipient Determine the Extent of Its Obligation To
Provide LEP Services?
Recipients are required to take reasonable steps to ensure
meaningful access to their programs and activities by LEP persons.
While designed to be a flexible and fact-dependent standard, the
starting point is an individualized assessment that balances the
following four factors: (1) The number or proportion of LEP persons
eligible to be served or likely to be encountered by the program or
grantee; (2) the frequency with which LEP individuals come in contact
with the program; (3) the nature and importance of the program,
activity, or service provided by the program to people's lives; and (4)
the resources available to the grantee/recipient and costs. As
indicated above, the intent of this guidance is to suggest a balance
that ensures meaningful access by LEP persons to critical services
while not imposing undue burdens on small business, small local
governments, or small nonprofits.
After applying the above four-factor analysis, a recipient may
conclude that different language assistance measures are sufficient for
the different types of programs or activities in which it engages. For
instance, some of a recipient's activities will be more important than
others and/or have greater impact on or contact with LEP persons, and
thus may require more in the way of language assistance. The
flexibility that recipients have in addressing the needs of the LEP
populations they serve does not diminish, and should not be used to
minimize, the obligation that those needs be addressed. GSA recipients
should apply the following four factors
[[Page 43523]]
to the various kinds of contacts that they have with the public to
assess language needs and decide what reasonable steps they should take
to ensure meaningful access for LEP persons.
(1) The Number or Proportion of LEP Persons Served or Encountered in
the Eligible Service Population
One factor in determining what language services recipients should
provide is the number or proportion of LEP persons from a particular
language group served or encountered in the eligible service
population. The greater the number or proportion of these LEP persons,
the more likely language services are needed. Ordinarily, persons
``eligible to be served, or likely to be directly affected by,'' a
recipient's program or activity are those who are served or encountered
in the eligible service population. This population will be program-
specific, and includes persons who are in the geographic area that has
been approved by a Federal grant agency as the recipient's service
area. However, where, for instance, a nonprofit organization operates
several shelters within a large county and one health clinic that
serves a large LEP population in a rural part of the country, the
appropriate service area for the clinic is most likely that portion of
the county served by the health clinic, and not the entire population
served by the nonprofit organization. The same would be true for the
shelters. Where no service area has previously been approved, the
relevant service area may be that which is approved by state or local
authorities or designated by the recipient itself, provided that these
designations do not themselves discriminatorily exclude certain
populations. When considering the number or proportion of LEP
individuals in a service area, recipients should consider LEP parent(s)
when their English-proficient or LEP minor children and dependents
encounter the recipient's services, programs or activities.
Recipients should first examine their prior experiences with LEP
encounters and determine the breadth and scope of language services
that were needed. In conducting this analysis, it is important to
include language minority populations that are eligible for their
programs or activities but may be underserved because of existing
language barriers. Other data should be consulted to refine or validate
a recipient's prior experience, including the latest census data for
the area served, data from school systems and from community
organizations, and data from state and local governments.\6\ Community
agencies, school systems, religious organizations, legal aid entities,
and others can often assist in identifying populations for whom
outreach is needed and who would benefit from the recipients' programs
and activities were language services provided.
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\6\ The focus of the analysis is on lack of English proficiency,
not the ability to speak more than one language. Note that
demographic data may indicate the most frequently spoken languages
other than English and the percentage of people who speak that
language who speak or understand English less than well. Some of the
most commonly spoken languages other than English may be spoken by
people who are also overwhelmingly proficient in English. Thus, they
may not be the languages spoken most frequently by limited English
proficient individuals. When using demographic data, it is important
to focus in on the languages spoken by those who are not proficient
in English.
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(2) The Frequency With Which LEP Individuals Come in Contact With the
Program
Recipients should assess, as accurately as possible, the frequency
with which they have or should have contact with an LEP individual from
different language groups seeking assistance. The more frequent the
contact with a particular language group, the more likely that enhanced
language services in that language are needed. The steps that are
reasonable for a recipient that serves an LEP person on a one-time
basis will be very different than those expected from a recipient that
serves LEP persons daily. It is also advisable to consider the
frequency of different types of language contacts. For example,
frequent contacts with Spanish-speaking people who are LEP may require
certain assistance in Spanish. Less frequent contact with different
language groups may suggest a different and less intensified solution.
If an LEP individual accesses a program or service on a daily basis, a
recipient has greater duties than if the same individual's program or
activity contact is unpredictable or infrequent. But even recipients
that serve LEP persons on an unpredictable or infrequent basis should
use this balancing analysis to determine what to do if an LEP
individual seeks services under the program in question. This plan need
not be intricate. It may be as simple as being prepared to use one of
the commercially-available telephonic interpretation services to obtain
immediate interpreter services. In applying this standard, recipients
should take care to consider whether appropriate outreach to LEP
persons could increase the frequency of contact with LEP language
groups.
(3) The Nature and Importance of the Program, Activity, or Service
Provided by the Program
The more important the activity, information, service, or program,
or the greater the possible consequences of the contact to the LEP
individuals, the more likely language services are needed. The
obligations to communicate with a person in need of emergency health,
fire or law enforcement services may differ, for example, from those to
provide information about museum hours, location, exhibits and
services. A recipient needs to determine whether denial or delay of
access to services or information could have serious or even life-
threatening implications for the LEP individual. Decisions by a
Federal, State, or local entity to make an activity compulsory, such as
educational programs, the provision of a hearing or complaint process,
or the communication of Miranda rights, or other rights or warning
information, can serve as strong evidence of the program's importance.
(4) The Resources Available to the Recipient and Costs
A recipient's level of resources and the costs that would be
imposed on it may have an impact on the nature of the steps it should
take. Smaller recipients with more limited budgets are not expected to
provide the same level of language services as larger recipients with
larger budgets. In addition, ``reasonable steps'' may cease to be
reasonable where the costs imposed substantially exceed the benefits.
Resource and cost issues, however, can often be reduced by
technological advances; the sharing of language assistance materials
and services among and between recipients, advocacy groups, and Federal
grant agencies; and reasonable business practices. Where appropriate,
training bilingual staff to act as interpreters and translators,
information sharing through industry groups, telephonic and video
conferencing interpretation services, pooling resources and
standardizing documents to reduce translation needs, using qualified
translators and interpreters to ensure that documents need not be
``fixed'' later and that inaccurate interpretations do not cause delay
or other costs, centralizing interpreter and translator services to
achieve economies of scale, or the formalized use of qualified
community volunteers, for example, may help reduce costs.\7\ Recipients
should
[[Page 43524]]
carefully explore the most cost-effective means of delivering competent
and accurate language services before limiting services due to resource
concerns. Large entities and those entities serving a significant
number or proportion of LEP persons should ensure that their resource
limitations are well-substantiated before using this factor as a reason
to limit language assistance. Such recipients may find it useful to be
able to articulate, through documentation or in some other reasonable
manner, their process for determining that language services would be
limited based on resources or costs.
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\7\ Small recipients with limited resources may find that
entering into a bulk telephonic interpretation service contract will
prove cost effective.
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This four-factor analysis necessarily implicates the ``mix'' of LEP
services required. Recipients have two main ways to provide language
services: Oral interpretation either in person or via telephone
interpretation service (hereinafter ``interpretation'') and written
translation (hereinafter ``translation''). Oral interpretation can
range from on-site interpreters for critical services provided to a
high volume of LEP persons to access through commercially-available
telephonic interpretation services. Written translation, likewise, can
range from translation of an entire document to translation of a short
description of the document. In some cases, language services should be
made available on an expedited basis while in others the LEP individual
may be referred to another office of the recipient for language
assistance.
The correct mix should be based on what is both necessary and
reasonable in light of the four-factor analysis. For instance, a
medical clinic in a largely Hispanic neighborhood may need immediate
oral interpreters available and should give serious consideration to
hiring some bilingual staff. In contrast, there may be circumstances
where the importance and nature of the activity and number or
proportion and frequency of contact with LEP persons may be low and the
costs and resources needed to provide language services may be high,
such as in the case of a voluntary tour of a city park and recreation
area, in which pre-arranged language services for the particular
service may not be necessary. Regardless of the type of language
service provided, quality and accuracy of those services can be
critical in order to avoid serious consequences to the LEP person and
to the recipient. Recipients have substantial flexibility in
determining the appropriate mix.
VI. Selecting Language Assistance Services
Recipients have two main ways to provide language services: Oral
and written language services. Quality and accuracy of the language
service is critical in order to avoid serious consequences to the LEP
person and to the recipient.
A. Oral Language Services (Interpretation)
Interpretation is the act of listening to something in one language
(source language) and orally translating it into another language
(target language). Where interpretation is needed and is reasonable,
recipients should consider some or all of the following options for
providing competent interpreters in a timely manner:
Competence of Interpreters. When providing oral assistance,
recipients should ensure competency of the language service provider,
no matter which of the strategies outlined below are used. Competency
requires more than self-identification as bilingual. Some bilingual
staff and community volunteers, for instance, may be able to
communicate effectively in a different language when communicating
information directly in that language, but not be competent to
interpret in and out of English. Likewise, they may not be able to do
written translations.
Competency to interpret, however, does not necessarily mean formal
certification as an interpreter, although certification is helpful.
When using interpreters, recipients should ensure that they:
Demonstrate proficiency in and ability to communicate information
accurately in both English and in the other language and identify and
employ the appropriate mode of interpreting (e.g., consecutive,
simultaneous, summarization, or sight translation);
Have knowledge in both languages of any specialized terms or
concepts peculiar to the entity's program or activity and of any
particularized vocabulary and phraseology used by the LEP person; \8\
and understand and follow confidentiality and impartiality rules to the
same extent the recipient employee for whom they are interpreting and/
or to the extent their position requires.
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\8\ Many languages have ``regionalisms,'' or differences in
usage. For instance, a word that may be understood to mean something
in Spanish for someone from Cuba may not be so understood by someone
from Mexico. In addition, because there may be languages, which do
not have an appropriate direct interpretation of, some technical
terms and the interpreter should be so aware and be able to provide
the most appropriate interpretation. The interpreter should likely
make the recipient aware of the issue and the interpreter and
recipient can then work to develop a consistent and appropriate set
of descriptions of these terms in that language that can be used
again, when appropriate.
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Understand and adhere to their role as interpreters without
deviating into a role as counselor, legal/medical advisor, or other
roles (particularly in court, administrative hearings, law enforcement
or medical services contexts).
Some recipients, such as courts, may have additional self-imposed
requirements for interpreters. Where individual rights depend on
precise, complete, and accurate interpretation or translations,
particularly in the contexts of courtrooms and custodial or other
police interrogations, the use of certified interpreters is strongly
encouraged.\9\ Where such proceedings are lengthy, the interpreter will
likely need breaks and team interpreting may be appropriate to ensure
accuracy and to prevent errors caused by mental fatigue of
interpreters.
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\9\ For those languages in which no formal accreditation or
certification currently exists, recipients should consider a formal
process for establishing the credentials of the interpreter.
---------------------------------------------------------------------------
While quality and accuracy of language services is critical, the
quality and accuracy of language services is nonetheless part of the
appropriate mix of LEP services required. The quality and accuracy of
language services in a hospital emergency room, for example, must be
extraordinarily high, while the quality and accuracy of language
services in a bicycle safety class need not meet the same exacting
standards.
Finally, when interpretation is needed and is reasonable, it should
be provided in a timely manner. To be meaningfully effective, language
assistance should be timely. While there is no single definition for
``timely'' applicable to all types of interactions at all times by all
types of recipients, one clear guide is that the language assistance
should be provided at a time and place that avoids the effective denial
of the service, benefit, or right at issue or the imposition of an
undue burden on or delay in important rights, benefits, or services to
the LEP person. For example, when the timeliness of services is
important, such as with certain activities of GSA recipients providing
law enforcement, health, and safety services, and when important legal
rights or the LEP individual's health or safety is at issue, a
recipient would likely not be providing meaningful access if it had one
bilingual staffer available one day a week to provide the service. Such
conduct would likely result in delays for LEP persons that
[[Page 43525]]
would be significantly greater than those for English proficient
persons. Conversely, where access to or exercise of a service, benefit,
or right is not effectively precluded by a reasonable delay, language
assistance can likely be delayed for a reasonable period.
Hiring Bilingual Staff. When particular languages are encountered
often, hiring bilingual staff offers one of the best, and often most
economical, options. Recipients can, for example, fill public contact
positions, such as 911 operators, police officers, guards, medical/
emergency personnel, or program directors, with staff who are bilingual
and competent to communicate directly with LEP persons in their
language. If bilingual staff is also used to interpret between English
speakers and LEP persons, or to orally interpret written documents from
English into another language, they should be competent in the skill of
interpreting. Being bilingual does not necessarily mean that a person
has the ability to interpret. In addition, there may be instances when
the role of the employee may conflict with the role of an interpreter
(for instance, a staff witness in a school disciplinary hearing may not
be appropriate to serve as an interpreter at the same time, even if he
or she were skilled at interpreting). Effective management strategies,
including any appropriate adjustments in assignments and protocols for
using bilingual staff, can ensure that bilingual staff is fully and
appropriately utilized. When bilingual staff cannot meet all of the
language service obligations of the recipient, the recipient should
turn to other options.
Hiring Staff Interpreters. Hiring interpreters may be most helpful
where there is a frequent need for interpreting services in one or more
languages. Depending on the facts, sometimes it may be necessary and
reasonable to provide on-site interpreters to provide accurate and
meaningful communication with an LEP person.
Contracting for Interpreters. Contract interpreters may be a cost-
effective option when there is no regular need for a particular
language skill. In addition to commercial and other private providers,
many community-based organizations and mutual assistance associations
provide interpretation services for particular languages. Contracting
with and providing training regarding the recipient's programs and
processes to these organizations can be a cost-effective option for
providing language services to LEP persons from those language groups.
Using Telephone Interpreter Lines. Telephone interpreter service
lines often offer speedy interpreting assistance in many different
languages. They may be particularly appropriate where the mode of
communicating with an English proficient person would also be over the
phone. Although telephonic interpretation services are useful in many
situations, it is important to ensure that, when using such services,
the interpreters used are competent to interpret any technical or legal
terms specific to a particular program that may be important parts of
the conversation. Nuances in language and non-verbal communication can
often assist an interpreter and cannot be recognized over the phone.
Video teleconferencing may sometimes help to resolve this issue where
necessary. In addition, where documents are being discussed, it is
important to give telephonic interpreters adequate opportunity to
review the document prior to the discussion and any logistical problems
should be addressed.
Using Community Volunteers. In addition to consideration of
bilingual staff, staff interpreters, or contract interpreters (either
in-person or by telephone) as options to ensure meaningful access by
LEP persons, use of recipient-coordinated community volunteers, working
with, for instance, community-based organizations may provide a cost-
effective supplemental language assistance strategy under appropriate
circumstances. They may be particularly useful in providing language
access for a recipient's less critical programs and activities. To the
extent the recipient relies on community volunteers, it is often best
to use volunteers who are trained in the information or services of the
program and can communicate directly with LEP persons in their
language. Just as with all interpreters, community volunteers used to
interpret between English speakers and LEP persons, or to orally
translate documents, should be competent in the skill of interpreting
and knowledgeable about applicable confidentiality and impartiality
rules. Recipients should consider formal arrangements with community-
based organizations that provide volunteers to address these concerns
and to help ensure that services are available more regularly.
Use of Family Members, or Friends or Other Volunteers as
Interpreters. Although recipients should not plan to rely on an LEP
person's family members, friends, or other informal interpreters to
provide meaningful access to important programs and activities, where
LEP persons so desire, they should be permitted to use, at their own
expense, an interpreter of their own choosing (whether a professional
interpreter, family member, friend, other volunteer) in place of or as
a supplement to the free language services expressly offered by the
recipient. LEP persons may feel more comfortable when a trusted family
member, friend, or other individual acts as an interpreter. In
addition, in exigent circumstances that are not reasonably foreseeable,
temporary use of interpreters not provided by the recipient may be
necessary. However, with proper planning and implementation, recipients
should be able to avoid most such situations.
Recipients, however, should take special care to ensure that
family, legal guardians, caretakers, and other informal interpreters
are appropriate in light of the circumstances and subject matter of the
program, service or activity, including protection of the recipient's
own administrative or enforcement interest in accurate interpretation.
In many circumstances, family members (especially children), friends,
other individuals are not competent to provide quality and accurate
interpretations. Issues of confidentiality, privacy, or conflict of
interest may also arise. LEP individuals may feel uncomfortable
revealing or describing sensitive, confidential, or potentially
embarrassing or sensitive information, such as medical history/
condition, previous sexual or violent assault history, family history,
or financial information to a family member, friend, or member of the
local community.\10\
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\10\ Recipients should take these concerns into consideration
when determining whether the LEP individual has made a knowing and
voluntary choice for the use of a family, legal guardian, caretaker
or other informal interpreter.
---------------------------------------------------------------------------
In addition, such informal interpreters may have a personal
connection to the LEP person or an undisclosed conflict of interest,
such as the desire to protect themselves or another individual. For
these reasons, when oral language services are necessary, recipients
should generally offer competent interpreter services free of cost to
the LEP person. For GSA recipient programs and activities, this is
particularly true in situations in which health, safety, or access to
important benefits and services are at stake, or when credibility and
accuracy are important to protect an individual's rights and access to
important services.
An example of such a case is when police officers respond to a
domestic violence call. In such a case, use of family members or
neighbors to interpret for the alleged victim, perpetrator, or
witnesses may raise
[[Page 43526]]
serious issues of competency, confidentiality, and conflict of interest
and is thus inappropriate. While issues of competency, confidentiality,
and conflict of interest in the use of family members (especially
children), friends, other inmates or other detainees often make their
use inappropriate, the use of these individuals as interpreters may be
an appropriate option where proper application of the four factors
would lead to a conclusion that recipient-provided services are not
necessary. An example of this is a voluntary educational tour of a
public building. There, the importance and nature of the activity may
be relatively low and unlikely to implicate issues of confidentiality,
conflict of interest, or the need for accuracy. In addition, the
resources needed and costs of providing language services may be high.
In such a setting, an LEP person's use of family, friends, or others
may be appropriate.
If the LEP person voluntarily chooses to provide his or her own
interpreter, a recipient should consider whether a record of that
choice and of the recipient's offer of assistance is appropriate. Where
precise, complete, and accurate interpretations or translations of
information and/or testimony are critical for medical, safety, law
enforcement, adjudicatory, or legal reasons, or where the competency of
the LEP person's interpreter is not established, a recipient might
decide to provide its own, independent interpreter, even if an LEP
person wants to use his or her own interpreter as well. Extra caution
should be exercised when the LEP person chooses to use a minor as the
interpreter. While the LEP person's decision should be respected, there
may be additional issues of competency, confidentiality, or conflict of
interest when the choice involves using children as interpreters. The
recipient should take care to ensure that the LEP person's choice is
voluntary, that the LEP person is aware of the possible problems if the
preferred interpreter is a minor child, and that the LEP person knows
that a competent interpreter could be provided by the recipient at no
cost.
B. Written Language Services (Translation)
Translation is the replacement of a written text from one language
(source language) into an equivalent written text in another language
(target language).
What Documents Should be Translated? After applying the four-factor
analysis, a recipient may determine that an effective LEP plan for its
particular program or activity includes the translation of vital
written materials into the language of each frequently-encountered LEP
group eligible to be served and/or likely to be affected by the
recipient's program.
Such written materials could include, for example:
--Consent and complaint forms;
--Intake forms with the potential for important consequences;
--Written notices of rights and responsibilities, denial, loss, or
decreases in benefits or services, parole, and other hearings;
--Notices of disciplinary action;
--Notices advising LEP persons of free language assistance;
--Written tests that do not assess English language competency, but
test competency for a particular license, job, or skill for which
Knowing English is not required; and
--Applications to participate in a recipient's program or activity or
to receive recipient benefits or services.
Whether or not a document (or the information it solicits) is
``vital'' may depend upon the importance of the program, information,
encounter, or service involved, and the consequence to the LEP person
if the information in question is not provided accurately or in a
timely manner. For instance, applications for a fishing class taught at
the county lake should not generally be considered vital, whereas
applications for drug and alcohol counseling/treatment in a homeless
shelter or in prison could be considered vital. Where appropriate,
recipients are encouraged to create a plan for consistently
determining, over time and across its various activities, what
documents are ``vital'' to the meaningful access of the LEP populations
they serve.
Classifying a document as vital or non-vital is sometimes
difficult, especially in the case of outreach materials like brochures
or other information on rights and services. Awareness of rights or
services is an important part of ``meaningful access.'' Lack of
awareness that a particular program, right, or service exists may
effectively deny LEP individuals meaningful access. Thus, where a
recipient is engaged in community outreach activities in furtherance of
its activities, it should regularly assess the needs of the populations
frequently encountered or affected by the program or activity to
determine whether certain critical outreach materials should be
translated. Community organizations may be helpful in determining what
outreach materials may be most helpful to translate. In addition, the
recipient should consider whether translations of outreach material may
be made more effective when done in tandem with other outreach methods,
including utilizing the ethnic media, schools, religious, and community
organizations to spread a message.
Sometimes a document includes both vital and non-vital information.
This may be the case when the document is very large. It may also be
the case when the title and a phone number for obtaining more
information on the contents of the document in frequently-encountered
languages other than English is critical, but the document is sent out
to the general public and cannot reasonably be translated into many
languages. Thus, vital information may include, for instance, the
provision of information in appropriate languages other than English
regarding where a LEP person might obtain an interpretation or
translation of the document.
Into What Languages Should Documents be Translated? The languages
spoken by the LEP individuals with whom the recipient has contact
determine the languages into which vital documents should be
translated. A distinction should be made, however, between languages
that are frequently encountered by a recipient and less commonly-
encountered languages. Many recipients serve communities in large
cities or across the country. They regularly serve LEP persons who
speak dozens and sometimes over 100 different languages. To translate
all written materials into all of those languages is unrealistic.
Although recent technological advances have made it easier for
recipients to store and share translated documents, such an undertaking
would incur substantial costs and require substantial resources.
Nevertheless, well-substantiated claims of lack of resources to
translate all vital documents into dozens of languages do not
necessarily relieve the recipient of the obligation to translate those
documents into at least several of the more frequently-encountered
languages and to set benchmarks for continued translations into the
remaining languages over time. As a result, the extent of the
recipient's obligation to provide written translations of documents
should be determined by the recipient on a case-by-case basis, looking
at the totality of the circumstances in light of the four-factor
analysis. Because translation is a one-time expense, consideration
should be given to whether the upfront cost of translating a document
(as opposed to oral interpretation) should be amortized over the likely
lifespan of the document when applying this four-factor analysis.
[[Page 43527]]
Safe Harbor. Many recipients would like to ensure with greater
certainty that they comply with their obligations to provide written
translations in languages other than English. Paragraphs (a) and (b)
outline the circumstances that can provide a ``safe harbor'' for
recipients regarding the requirements for translation of written
materials. A ``safe harbor'' means that if a recipient provides written
translations under these circumstances, such action will be considered
strong evidence of compliance with the recipient's written-translation
obligations.
The failure to provide written translations under the circumstances
outlined in paragraphs (a) and (b) does not mean there is non-
compliance. Rather, they provide a common starting point for recipients
to consider whether and at what point the importance of the service,
benefit, or activity involved; the nature of the information sought;
and the number or proportion of LEP persons served call for written
translations of commonly-used forms into frequently-encountered
languages other than English. Thus, these paragraphs merely provide a
guide for recipients that would like greater certainty of compliance
than can be provided by a fact-intensive, four-factor analysis.
Example: Even if the safe harbors are not used, if written
translation of a certain document(s) would be so burdensome as to
defeat the legitimate objectives of its program, the translation of
the written materials is not necessary. Other ways of providing
meaningful access, such as effective oral interpretation of certain
vital documents, might be acceptable under such circumstances.
Safe Harbor. The following actions will be considered strong
evidence of compliance with the recipient's written-translation
obligations:
The GSA recipient provides written translations of vital documents
for each eligible LEP language group that constitutes five percent or
1,000, whichever is less, of the population of persons eligible to be
served or likely to be affected or encountered. Translation of other
documents, if needed, can be provided orally; or
If there are fewer than 50 persons in a language group that reaches
the five percent trigger in (a), the recipient does not translate vital
written materials but provides written notice in the primary language
of the LEP language group of the right to receive competent oral
interpretation of those written materials, free of cost.
These safe harbor provisions apply to the translation of written
documents only. They do not affect the requirement to provide
meaningful access to LEP individuals through competent oral
interpreters where oral language services are needed and are
reasonable. For example, schools should, where appropriate, ensure that
school rules have been explained to LEP students, at orientation, for
instance, prior to taking disciplinary action against them.
Competence of Translators. As with oral interpreters, translators
of written documents should be competent. Many of the same
considerations apply. However, the skill of translating is very
different from the skill of interpreting, and a person who is a
competent interpreter may or may not be competent to translate.
Particularly where legal or other vital documents are being
translated, competence can often be achieved by use of certified
translators. Certification or accreditation may not always be possible
or necessary.\11\ Competence can often be ensured by having a second,
independent translator ``check'' the work of the primary translator.
Alternatively, one translator can translate the document, and a second,
independent translator could translate it back into English to check
that the appropriate meaning has been conveyed. This is called ``back
translation.''
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\11\ For those languages in which no formal accreditation
currently exists, a particular level of membership in a professional
translation association can provide some indicator of
professionalism.
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Translators should understand the expected reading level of the
audience and, where appropriate, have fundamental knowledge about the
target language group's vocabulary and phraseology. Sometimes direct
translation of materials results in a translation that is written at a
much more difficult level than the English language version or has no
relevant equivalent meaning.\12\ Community organizations may be able to
help consider whether a document is written at a good level for the
audience. Likewise, consistency in the words and phrases used to
translate terms of art, legal, or other technical concepts helps avoid
confusion by LEP individuals and may reduce costs. Creating or using
already-created glossaries of commonly-used terms may be useful for LEP
persons and translators and cost effective for the recipient. Providing
translators with examples of previous accurate translations of similar
material by the recipient, other recipients, or Federal agencies may be
helpful.
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\12\ For instance, there may be languages, which do not have an
appropriate direct translation of some legal or technical terms, and
the translator should be able to provide an appropriate translation.
The translator should likely also make the recipient aware of this.
Recipients can then work with translators to develop a consistent
and appropriate set of descriptions of these terms in that language
that can be used again, when appropriate. Recipients will find it
more effective and less costly if they try to maintain consistency
in the words and phrases used to translate terms of art and legal or
other technical concepts. Creating or using already created
glossaries of commonly used terms may be useful for LEP persons and
translators and cost effective for the recipient. Providing
translators with examples of previous translations of similar
material by the recipient, other recipients, or federal agencies may
be helpful.
---------------------------------------------------------------------------
While quality and accuracy of translation services is critical, the
quality and accuracy of translation services is nonetheless part of the
appropriate mix of LEP services required. For instance, documents that
are simple and have no legal or other consequence for LEP persons who
rely on them may use translators that are less skilled than important
documents with legal or other information upon which reliance has
important consequences (including, e.g., information or documents of
GSA recipients regarding certain law enforcement, health and safety
service, or certain legal rights). The permanent nature of written
translations, however, imposes additional responsibility on the
recipient to ensure that the quality and accuracy permit meaningful
access by LEP persons.
VII. Elements of Effective Plan on Language Assistance for LEP Persons
After completing the four-factor analysis and deciding what
language assistance services are appropriate, a recipient should
develop an implementation plan to address the identified needs of the
LEP populations they serve. Recipients have considerable flexibility in
developing this plan. The development and maintenance of a
periodically-updated written plan on language assistance for LEP
persons (``LEP plan'') for use by recipient employees serving the
public will likely be the most appropriate and cost-effective means of
documenting compliance and providing a framework for the provision of
timely and reasonable language assistance. Moreover, such written plans
would likely provide additional benefits to a recipient's managers in
the areas of training, administration, planning, and budgeting. These
benefits should lead most recipients to document in a written LEP plan
their language assistance services, and how staff and LEP persons can
access those services. Despite these benefits, certain GSA recipients,
such as recipients serving very few LEP persons and recipients with
very limited resources, may choose
[[Page 43528]]
not to develop a written LEP plan. However, the absence of a written
LEP plan does not obviate the underlying obligation to ensure
meaningful access by LEP persons to a recipient's program or
activities. Accordingly, in the event that a recipient elects not to
develop a written plan, it should consider alternative ways to
articulate in some other reasonable manner a plan for providing
meaningful access. Entities having significant contact with LEP
persons, such as schools, religious organizations, community groups,
and groups working with new immigrants can be very helpful in providing
important input into this planning process from the beginning. The
following five steps may be helpful in designing an LEP plan and are
typically part of effective implementation plans.
(1) Identifying LEP Individuals Who Need Language Assistance. The
first two factors in the four-factor analysis require an assessment of
the number or proportion of LEP individuals eligible to be served or
encountered and the frequency of encounters. This requires recipients
to identify LEP persons with whom it has contact.
One way to determine the language of communication is to use
language identification cards (or ``I speak cards''), which invite LEP
persons to identify their language needs to staff. Such cards, for
instance, might say, ``I speak Spanish'' in both Spanish and English,
``I speak Vietnamese'' in both English and Vietnamese, etc. To reduce
costs of compliance, the Federal government has made a set of these
cards available on the Internet. The Census Bureau ``I speak card'' can
be found and downloaded at http://www.lep.gov. When records are
normally kept of past interactions with members of the public, the
language of the LEP person can be included as part of the record. In
addition to helping employees identify the language of LEP persons they
encounter, this process will help in future applications of the first
two factors of the four-factor analysis. In addition, posting notices
in commonly encountered languages notifying LEP persons of language
assistance will encourage them to self-identify.
(2) Language Assistance Measures. An effective LEP plan would
likely include information about the ways in which language assistance
will be provided. For instance, recipients may want to include
information on at least the following:
--Types of language services available.
--How staff can obtain those services.
--How to respond to LEP callers.
--How to respond to written communications from LEP persons.
--How to respond to LEP individuals who have in-person contact with
recipient staff.
--How to ensure competency of interpreters and translation services.
(3) Training Staff. Staff should know their obligations to provide
meaningful access to information and services for LEP persons. An
effective LEP plan would likely include training to ensure that:
--Staff knows about LEP policies and procedures.
--Staff having contact with the public (or those in a recipient's care)
are trained to work effectively with in-person and telephone
interpreters.
Recipients may want to include this training as part of the
orientation for new employees. It is important to ensure that all
employees in public contact positions (or having contact with those in
a recipient's care) are properly trained. Recipients have flexibility
in deciding the manner in which the training is provided. The more
frequent the contact with LEP persons, the greater the need will be for
in-depth training. Staff with little or no contact with LEP persons may
only have to be aware of an LEP plan. However, management staff, even
if they do not interact regularly with LEP persons, should be fully
aware of and understand the plan so they can reinforce its importance
and ensure its implementation by staff.
(4) Providing Notice to LEP Persons. Once an agency has decided,
based on the four factors, that it will provide language services, it
is important for the recipient to let LEP persons know that those
services are available and that they are free of charge. Recipients
should provide this notice in a language LEP persons will understand.
Examples of notification that recipients should consider include:
(a) Posting signs in intake areas and other entry points. When
language assistance is needed to ensure meaningful access to
information and services, it is important to provide notice in
appropriate languages in intake areas or initial points of contact so
that LEP persons can learn how to access those language services. This
is particularly true in areas with high volumes of LEP persons seeking
access to certain health, safety, or law enforcement services or
activities run by GSA recipients. For instance, signs in intake offices
could state that free language assistance is available. The signs
should be translated into the most common languages encountered. They
should explain how to get the language help.\13\
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\13\ The Social Security Administration has made such signs
available at http:/www.ssa.gov/multilanguage/lanlist.htm. These
signs could, for example, be modified for recipient use.
---------------------------------------------------------------------------
(b) Stating in outreach documents that language services are
available from the agency. Announcements could be in, for instance,
brochures, booklets, and in outreach and recruitment information. These
statements should be translated into the most common languages and
could be ``tagged'' onto the front of common documents.
(c) Working with community-based organizations and other
stakeholders to inform LEP individuals of the recipients' services,
including the availability of language assistance services.
(d) Using a telephone voice mail menu. The menu could be in the
most common languages encountered. It should provide information about
available language assistance services and how to get them.
(e) Including notices in local newspapers in languages other than
English.
(f) Providing notices on non-English-language radio and television
stations about the available language assistance services and how to
get them.
(g) Presentations and/or notices at schools and religious
organizations.
(5) Monitoring and Updating the LEP Plan. Recipients should, where
appropriate, have a process for determining, on an ongoing basis,
whether new documents, programs, services, and activities need to be
made accessible for LEP individuals, and they may want to provide
notice of any changes in services to the LEP public and to employees.
In addition, recipients should consider whether changes in
demographics, types of services, or other needs require annual
reevaluation of their LEP plan. Less frequent reevaluation may be more
appropriate where demographics, services, and needs are more static.
One good way to evaluate the LEP plan is to seek feedback from the
community.
In their reviews, recipients may want to consider assessing changes
in:
--Current LEP populations in service area or population affected or
encountered.
--Frequency of encounters with LEP language groups.
--Nature and importance of activities to LEP persons.
--Availability of resources, including technological advances and
sources of additional resources, and the costs imposed.
[[Page 43529]]
--Whether existing assistance is meeting the needs of LEP persons.
--Whether staff knows and understands the LEP plan and how to implement
it.
--Whether identified sources for assistance are still available and
viable.
In addition to these five elements, effective plans set clear
goals, management accountability, and opportunities for community input
and planning throughout the process.
VIII. Voluntary Compliance Effort
The goal for Title VI and Title VI regulatory enforcement is to
achieve voluntary compliance. The requirement to provide meaningful
access to LEP persons is enforced and implemented by GSA through the
procedures identified in the Title VI regulations. These procedures
include complaint investigations, compliance reviews, efforts to secure
voluntary compliance, and technical assistance.
The Title VI regulations provide that GSA will investigate whenever
it receives a complaint, report, or other information that alleges or
indicates possible noncompliance with Title VI or its regulations. If
the investigation results in a finding of compliance, GSA will inform
the recipient in writing of this determination, including the basis for
the determination. GSA is committed to using voluntary compliance
(informal resolution) to resolve findings of noncompliance. However, if
a case is fully investigated and results in a finding of noncompliance,
GSA must inform the recipient of the noncompliance through a Letter of
Findings that sets out the areas of noncompliance and the steps that
must be taken to correct the noncompliance. It must attempt to secure
voluntary compliance through informal means. If the matter cannot be
resolved informally, GSA must secure compliance through the termination
of Federal assistance after the GSA recipient has been given an
opportunity for an administrative hearing and/or by referring the
matter to the DOJ to seek injunctive relief or pursue other enforcement
proceedings. GSA engages in voluntary compliance efforts and provides
technical assistance to recipients at all stages of an investigation.
During these efforts, GSA proposes reasonable timetables for achieving
compliance and consults with and assists recipients in exploring cost-
effective ways of coming into compliance. In determining a recipient's
compliance with the Title VI regulations, GSA's primary concern is to
ensure that the recipient's policies and procedures provide meaningful
access for LEP persons to the recipient's programs and activities.
While all recipients must work toward building systems that will
ensure access for LEP individuals, GSA acknowledges that the
implementation of a comprehensive system to serve LEP individuals is a
process and that a system will evolve over time as it is implemented
and periodically reevaluated. As recipients take reasonable steps to
provide meaningful access to Federally assisted programs and activities
for LEP persons, GSA will look favorably on intermediate steps
recipients take that are consistent with this Guidance, and that, as
part of a broader implementation plan or schedule, move their service
delivery system toward providing full access to LEP persons. This does
not excuse noncompliance but instead recognizes that full compliance in
all areas of a recipient's activities and for all potential language
minority groups may reasonably require a series of implementing actions
over a period of time. However, in developing any phased implementation
schedule, GSA recipients should ensure that the provision of
appropriate assistance for significant LEP populations or with respect
to activities having a significant impact on the health, safety, legal
rights, or livelihood of beneficiaries is addressed first. Recipients
are encouraged to document their efforts to provide LEP persons with
meaningful access to Federally assisted programs and activities.
IX. Application to Specific Types of Recipients
GSA's recipients are in excess of 66,000 and represent State,
county, city and local government agencies e.g., transportation
departments, parks/recreation departments, education departments, labor
departments, health departments, correctional facilities/police
departments, emergency 9-1-1, local fire departments (to include
volunteer fire departments; housing authorities; schools (public and
private); hospitals, health clinics, medical centers; day care centers,
to include Head Start; homeless shelters, domestic abuse shelters, food
banks, and other eligible non-profits.
The requirements of the Title VI regulations, as clarified by this
guidance, supplement, but do not supplant, constitutional and other
statutory or regulatory provisions that may require LEP services. Thus,
a proper application of the four-factor analysis and compliance with
the Title VI regulations does not replace constitutional or other
statutory protections mandating information, warnings and notices in
languages other than English, such as in the criminal justice context.
Rather, this guidance clarifies the Title VI regulatory obligation to
address, in appropriate circumstances and in a reasonable manner, the
language assistance needs of LEP individuals beyond those required by
the Constitution or statutes and regulations other than the Title VI
regulations.
The following examples are provided to assist recipients in
determining their responsibilities with regard to LEP individuals:
(1) A county has very few residents who are LEP. However, many
Vietnamese-speaking LEP motorists go through a major freeway running
through the county, which connects two areas with high populations of
Vietnamese speaking LEP individuals. As a result, the Traffic Division
of the county court processes a large number of LEP persons, but it has
taken no steps to train staff or provide forms or other language access
in that Division because of the small number of LEP individuals in the
county. The Division should assess the number and proportion of LEP
individuals processed by the Division and the frequency of such
contact. With those numbers high, the Traffic Division may find that it
needs to provide key forms or instructions in Vietnamese. It may also
find, from talking with community groups, that many older Vietnamese
LEP individuals do not read Vietnamese well, and that it should provide
oral language services as well. The court may already have Vietnamese-
speaking staff competent in interpreting in a different section of the
court; it may decide to hire a Vietnamese-speaking employee who is
competent in the skill of interpreting; or it may decide that a
telephonic interpretation service suffices.
(2) A shelter for victims of domestic violence is operated by a
recipient of GSA funds and located in an area where 15 percent of the
women in the service area speak Spanish and are LEP. Seven percent of
the women in the service area speak various Chinese dialects and are
LEP. The shelter uses community volunteers to help translate vital
outreach materials into Chinese (which is one written language despite
many dialects) and Spanish. The shelter hotline has a menu providing
key information, such as location, in English, Spanish, and two of the
most common Chinese dialects. Calls for immediate assistance are
handled by the bilingual staff. The shelter has one counselor and
several volunteers fluent
[[Page 43530]]
in Spanish and English. Some volunteers are fluent in different Chinese
dialects and in English. The shelter works with community groups to
access interpreters in the several Chinese dialects that they
encounter. Shelter staff trains the community volunteers in the
sensitivities of domestic violence intake and counseling. Volunteers
sign confidentiality agreements. The shelter is looking for a grant to
increase its language capabilities despite its tiny budget. These
actions constitute strong evidence of compliance.
(3) A small childcare center has three LEP parents (two who speak
Mandarin and one speaks Spanish) whose English-speaking children attend
its childcare 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 in the
appropriate language, 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. The
assistance that the childcare 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 consider
this strong evidence of compliance.
(4) A county social service program that administers the State's
welfare and health programs has a large budget. Their service area
encompasses an eligible service population of 500,000. Thirty-five
hundred individuals in the serviced population are LEP and speak a
Chinese dialect; 4,000 individuals in the serviced population are LEP
and speak Spanish; 2000 individuals in the serviced population are LEP
and speak Vietnamese; and 400 individuals are LEP and speak Vietnamese.
The county has translated vital documents, i.e., applications and
program brochures, into Chinese, Spanish, and Vietnamese. Therefore,
with regard to translation of vital documents, OCR would consider this
strong evidence of compliance, consistent with the safe harbor
provision in GSA's guidance. Additionally, the county should adequately
address and provide needed interpretation services to their LEP clients
(i.e., hiring bilingual staff or contracting with a language service
provider).
Permanent Versus Seasonal Populations. In many communities,
resident populations change over time or season. For example, in some
resort communities, populations swell during peak vacation periods,
many times exceeding the number of permanent residents of the
jurisdiction. In other communities, primarily agricultural areas,
transient populations of workers may require increased services during
the relevant harvest season. This dynamic demographic ebb and flow can
also dramatically change the size and nature of the LEP community
likely to come into contact with the recipient. Thus, recipients should
not limit their analysis to numbers and percentages of permanent
residents. In assessing factor one--the number or proportion of LEP
individuals--emergency service providers should consider any
significant but temporary changes in a jurisdiction's demographics.
[FR Doc. 03-18658 Filed 7-22-03; 8:45 am]
BILLING CODE 6820-34-P