[Federal Register: August 8, 2003 (Volume 68, Number 153)]
[Notices]
[Page 47311-47323]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08au03-65]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Guidance to Federal Financial Assistance Recipients Regarding
Title VI Prohibition Against National Origin Discrimination Affecting
Limited English Proficient Persons
AGENCY: Health and Human Services, HHS.
ACTION: Policy guidance document.
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SUMMARY: The Department of Health and Human Services (HHS) publishes
revised Guidance to Federal Financial Assistance Recipients Regarding
Title VI Prohibition Against National Origin Discrimination Affecting
Limited English Proficient Persons (``Revised HHS LEP Guidance''). This
revised HHS LEP Guidance is issued pursuant to Executive Order 13166.
HHS is seeking comment on the revised HHS LEP Guidance for a 120-day
period ending on January 6, 2004.
DATES: This Guidance is effective immediately. Comments must be
submitted on or before January 6, 2004. HHS will review all comments
and will determine if modifications to the Guidance are necessary. This
Guidance supplants existing guidance on the same subject originally
published at 65 FR 52762 (August 30, 2000).
ADDRESSES: Comments should be addressed to Deeana Jang with
``Attention: LEP Comments,'' and should be sent to 200 Independence
Avenue, SW, Room 506F, Washington, DC 20201. Comments may also be
submitted by e-mail at LEP.comments@hhs.gov.
FOR FURTHER INFORMATION CONTACT: Onelio Lopez at the Office for Civil
Rights, U.S. Department of Health and Human Services, 200 Independence
Avenue, SW, Room 506F, Washington, DC 20201, addressed with
``Attention: LEP Comments;'' telephone 202-205-0192; TDD: toll-free 1-
800-537-7697. Arrangements to receive the policy in an alternative
format may be made by contacting the named individual.
SUPPLEMENTARY INFORMATION: The United States Department of Health and
Human Services (HHS) is publishing revised ``Guidance to Federal
Financial Assistance Recipients Regarding Title VI Prohibition Against
National Origin Discrimination Affecting Limited English Proficient
Persons'' (``Revised HHS LEP Guidance''). This guidance was originally
published on August 30, 2000, and included a 60-day comment period. See
65 FR 52762. This original guidance was republished for additional
comment on February 1, 2002, pursuant to a memorandum issued by the
United States Department of Justice on October 26, 2001. See 67 FR
4968.
On March 14, 2002, the Office of Management and Budget (OMB) issued
a Report to Congress entitled ``Assessment of the Total Benefits and
Costs of Implementing Executive Order No. 13166: Improving Access to
Services for Persons with Limited English Proficiency.'' Among other
things, the Report recommended the adoption of uniform guidance across
all federal agencies, with flexibility to permit tailoring to each
agency's specific recipients. Consistent with this OMB recommendation,
DOJ published LEP Guidance for DOJ recipients, which was drafted and
organized to also function as a model for similar guidance documents by
other Federal grant-making agencies. See 67 FR 41455 (June 18, 2002).
This revised HHS LEP Guidance reflects consideration of the
comments received and the subsequent guidance of DOJ. HHS welcomes
comments from the public on the revised guidance document, and has
announced the extended comment period to encourage comment from the
public and from recipients regarding experience in applying this
revised guidance. Following the comment period, HHS will evaluate
whether further revisions to the guidance are necessary or appropriate.
The text of the guidance appears below. Appendix A to the guidance
is a series of questions and answers that provides a useful summary of
a number of the major aspects of the guidance.
It has been determined that this revised HHS LEP Guidance does not
constitute a regulation subject to the rulemaking requirements of the
Administrative Procedure Act, 5 U.S.C. 553, and is not subject to
Executive Order 12866 (Regulatory Review and Planning, September 30,
1993).
Dated: August 4, 2003.
Richard M. Campanelli,
Director, Office for Civil Rights.
I. Background and Legal History
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
[[Page 47312]]
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.
Department of Health and Human Services 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 with respect to
individuals of a particular race, color, or national origin.'' 45 CFR
80.3(b)(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 (HHS's predecessor), 45 CFR 80.3(b)(2), 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, the Department of Justice (``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 Federal
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 for recipients of DOJ federal financial assistance in light of
Sandoval.\1\ 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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\1\ The memorandum noted that some commentators had 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 regulations; .
. . 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. DOJ stated that 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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Consistent with Executive Order 13166, HHS developed its own
guidance document for recipients and initially issued it on August 30,
2000. ``Title VI of the Civil Rights Act of 1964; Policy Guidance on
the Prohibition Against National Origin Discrimination As It Affects
Persons With Limited English Proficiency,'' 65 FR 52762 (August 30,
2000) (``HHS Guidance''). Following the instructions in the October 26,
2001 memorandum from Ralph F. Boyd, Jr., the Department republished, on
February 1, 2002, its existing guidance document for additional public
comment. ``Office for Civil Rights; Title VI of the Civil Rights Act of
1964; Policy Guidance on the Prohibition Against National Origin
Discrimination As It Affects Persons With Limited English
Proficiency,'' 67 FR 4968 (February 1, 2002).
II. Revised HHS LEP Guidance
Following republication of our guidance in February 2002, the
Department received nearly 200 public comments. Most comments were in
full support of the principles behind the HHS Guidance, and a number
supported maintaining the guidance without change. While the comments
reflected recognition that effective communication is critical for
necessary health and human services, many commentors raised serious
concerns about coverage, compliance costs, and use of family and
friends as interpreters. In addition, many providers of services
requested assistance from the Office for Civil Rights on how to comply
with both general and specific provisions of the guidance.
On July 8, 2002, Assistant Attorney General Boyd issued a
memorandum expressing the need for consistency across federal agency
LEP guidance documents. Specifically, he requested that the Department
(and all other affected agencies) use the DOJ LEP guidance (published
at 67 FR 41455, June 18, 2002) as a model, and revise and republish the
HHS guidance based on that model for public comment.
The DOJ's role under Executive Order 13166 is unique. The Executive
Order charges DOJ with responsibility for providing LEP Guidance to
other Federal agencies and for ensuring consistency among each agency-
specific guidance. DOJ's guidance stated the following principles.
``Consistency among Departments of the federal government is
particularly important. Inconsistency or contradictory guidance could
confuse 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.
[[Page 47313]]
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.''
HHS believes that the DOJ model guidance responds to the important
issues raised in comments on the HHS document published in February,
and the Department is confident that the DOJ LEP Guidance serves as an
appropriate model for HHS to adopt. The Department notes that it has
made certain modifications for purposes of clarity and organization,
and a few additional modifications to accommodate particular
programmatic needs and purposes.
There are many productive steps that the federal government, either
collectively or as individual agencies, can take to help recipients
reduce the costs of language services without sacrificing meaningful
access for LEP persons. Without these steps, certain smaller recipients
of Federal financial assistance may well choose not to participate in
federally assisted programs, threatening the critical functions that
the programs strive to provide. To that end, the Department plans to
continue to provide assistance and guidance in this important area. In
addition, HHS plans to work with representatives of state health and
social service agencies, hospital associations, medical and dental
associations, managed care organizations, and LEP persons to identify
and share model plans, examples of best practices, and cost-saving
approaches. Moreover, HHS intends to explore how language assistance
measures, resources and cost-containment approaches developed with
respect to its own federally conducted programs and activities can be
effectively shared or otherwise made available to recipients,
particularly small businesses, small local governments, and small non-
profits. An interagency working group on LEP has developed a Web site,
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.lep.gov, to assist in disseminating this information to
recipients, federal agencies, and the communities being served.
As discussed earlier, in certain circumstances, the 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 the Title VI regulations against national origin
discrimination. Specifically, the failure of a recipient of Federal
financial assistance from HHS to take reasonable steps to provide LEP
persons with meaningful opportunity to participate in HHS-funded
programs may constitute a violation of Title VI and HHS's implementing
regulations. 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
HHS will use in evaluating whether recipients are in compliance with
Title VI and the 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 reasonable 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 provide 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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III. Who Is Covered?
Department of Health and Human Services regulations, 45 CFR
80.3(b)(2), require all recipients of federal financial assistance from
HHS to provide meaningful access to LEP persons.\3\ Federal financial
assistance includes grants, training, use of equipment, donations of
surplus property, and other assistance.
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\3\ Pursuant to Executive Order 13166, the meaningful access
requirement of the Title VI regulations and the four-factor analysis
set forth in the DOJ LEP Guidance are to apply additionally to the
programs and activities of federal agencies, including HHS.
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Recipients of HHS assistance may include, for example:
[sbull] Hospitals, nursing homes, home health agencies, and managed
care organizations.
[sbull] Universities and other entities with health or social
service research programs.
[sbull] State, county, and local health agencies.
[sbull] State Medicaid agencies.
[sbull] State, county and local welfare agencies.
[sbull] Programs for families, youth, and children.
[sbull] Head Start programs.
[sbull] Public and private contractors, subcontractors and vendors.
[sbull] Physicians and other providers who receive Federal
financial assistance from HHS.
Recipients of HHS assistance do not include, for example, providers
who only receive Medicare Part B payments.\4\
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\4\ HHS's Title VI regulations do not apply to (i) Any federal
financial assistance by way of insurance or guaranty contracts, (ii)
the use of any assistance by any individual who is the ultimate
beneficiary under any program which receives federal financial
assistance, and (iii) any employment practice, under any such
program, or any employer, employment agency, or labor organization,
except as otherwise described in the Title VI regulations. 45 CFR
80.2.
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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\
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\5\ However, if a federal agency were to decide to terminate
federal funds based on noncompliance with Title VI or its
implementing regulations, only funds directed to the particular
program or activity that is out of compliance could be terminated.
42 U.S.C. 2000d-1.
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Example: HHS provides assistance to a state department of health to
provide immunizations for children. All of the operations of the entire
state department of health--not just the particular immunization
programs--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
may be limited English proficient, or ``LEP,'' and may be eligible to
receive 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 HHS recipients and should be considered
when planning language services may include such as those:
[sbull] Persons seeking Temporary Assistance for Needy Families
(TANF), and other social services.
[sbull] Persons seeking health and health-related services.
[sbull] Community members seeking to participate in health
promotion or awareness activities.
[sbull] Persons who encounter the public health system.
[[Page 47314]]
[sbull] Parents and legal guardians of minors eligible for coverage
concerning such programs.
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, or,
in fact, that, in certain circumstances, recipient-provided language
services are not necessary. (As discussed below, recipients may want to
consider documenting their application of the four-factor test to the
services they provide.) 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. HHS recipients should apply the following four factors to
the various kinds of contacts that they have with the public to assess
language needs and decide what reasonable steps, if any, 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 particular office of the county
or city health department serves a large LEP population, the
appropriate service area is most likely that office, and not the entire
population served by the department. 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 whether the minor children their programs serve have
LEP parent(s) or guardian(s) with whom the recipient may need to
interact.
Recipients should first examine their prior experiences with LEP
encounters and determine the breadth and scope of language services
that were needed. In certain circumstances, it is important in
conducting this analysis 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
when appropriate 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 which may be underserved because of existing
language barriers and who would benefit from the recipient's program,
activity, or service, 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
Recipient's Program, Activity or Service
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 recipient's program, activity, or
service on a daily basis, a recipient has greater duties than if an LEP
individual's contact with the recipient's program, activity, or service
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. For example, a drug treatment program
that encounters LEP persons on a daily basis most likely may have a
greater obligation than a drug treatment program that encounters LEP
persons sporadically. The obligations of both programs are greater than
that of a drug treatment program which has never encountered a LEP
individual where the service area includes few or no LEP individuals.
In applying this standard, certain recipients should take care to
consider whether appropriate outreach to LEP persons could increase the
frequency of contact with LEP language groups. For example, in areas
where a community health center serves a large LEP population, outreach
may be appropriate. On the other hand, for most individual physicians
or dentists, outreach may not be necessary.
[[Page 47315]]
(3) The Nature and Importance of the Recipient's Program, Activity, or
Service
The more important the recipient's 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. 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. Thus, the recipient should
consider the importance and urgency of its program, activity, or
service. If the activity is both important and urgent--such as the
communication of information concerning emergency surgery and the
obtaining of informed consent prior to such surgery--it is more likely
that relatively immediate language services are needed. Alternatively,
if the activity is important, but not urgent--such as the communication
of information about, and obtaining informed consent for, elective
surgery where delay will not have any adverse impact on the patient's
health, or communication of information regarding admission to the
hospital for tests where delay would not affect the patient's health--
it is more likely that language services are needed, but that such
services can be delayed for a reasonable period of time. Finally, if an
activity is neither important nor urgent--such as a general public tour
of a facility--it is more likely that language services would not be
needed. The obligation to communicate rights to a person whose benefits
are being terminated or to provide medical services to an LEP person
who is ill differ, for example, from those to provide medical care for
a healthy LEP person or to provide recreational programming.
Decisions by a federal, state, or local entity to make an activity
compulsory, such as job search programs in welfare to work programs,
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 to comply with Title VI. 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 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\ 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--or to another
recipient--for language assistance. In certain circumstances, pursuant
to an arrangement, where there is no discriminatory intent, the purpose
is beneficial and will result in better access for LEP persons, it may
be appropriate for a recipient to refer the LEP beneficiary to another
recipient. For example, if two physicians in the same field, one with a
Spanish-speaking assistant and one with a Vietnamese-speaking
assistant, practice in the same geographic area and have a custom/
practice of referring patients between each other, it may be
appropriate for the first doctor to refer LEP Vietnamese patients to
the second doctor and for the second doctor to refer LEP Spanish
patients to the first doctor. In certain circumstances, a referral
would not be appropriate: for example, a Korean speaking LEP woman
comes to a battered women's shelter requesting assistance. Although the
shelter has space, it has no arrangement to provide language assistance
for LEP persons. Instead, as with all LEP persons, the staff only offer
her a prepared list of three shelters in the neighborhood that
generally provide language assistance. The staff does not check to
assure that any of the three alternative shelters can actually provide
the Korean language assistance she needs, or that any have space
available for her.
The correct mix should be based on what is both necessary and
reasonable in light of the four-factor analysis. In some circumstances,
where the importance and nature of the activity, the number or
proportion and frequency of contact with LEP persons may be high and
the relative costs and resources needed to provide language services
may be low, it may be appropriate for a recipient to hire bilingual
staff or staff interpreters. 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, in
which case language services for the particular activity may not be
necessary. In situations that fall in between the two, it may be
appropriate for recipients to use contract interpreters or telephone
language lines to provide language services to LEP persons in contact
with their program or activity. A hospital emergency room in a city
with a significant Hmong population may need immediately available oral
interpreters and may want to give serious consideration to hiring some
bilingual staff. (Of course, many hospitals have already made such
arrangements.) On the other hand, a physician's practice which
encounters one LEP Hmong patient per month on a walk-in basis
[[Page 47316]]
may want to use a telephone interpreter service. In contrast, a dentist
in an almost exclusively English-speaking neighborhood who has rarely
encountered a patient who did not speak English and has never
encountered a Hmong-speaking patient may not need, pursuant solely to
Title VI, to provide language services for a LEP Hmong individual who
comes in for a dental cleaning.
VI. Selecting Language Assistance Services
Recipients have two main ways to provide language services: oral
and written language services (interpretation and translation,
respectively). Regardless of the type of language service provided,
quality and accuracy of those services is critical to avoid serious
consequences to the LEP person and to the recipient. Recipients have
substantial flexibility in determining the appropriate mix.
A. Considerations Relating to Competency of Interpreters and
Translators
Competence of Interpreters. Recipients should be aware that
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
perform written translations.
Competency to interpret, however, does not necessarily mean formal
certification as an interpreter, although certification is helpful.
When using interpreters, recipients should take reasonable steps, given
the circumstances, to assess whether the interpreters:
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);
To the extent necessary for communication between the recipient or
its staff and the LEP person, have knowledge in both languages of any
specialized terms or concepts peculiar to the recipient's program or
activity and of any particularized vocabulary and phraseology used by
the LEP person; \8\
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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, the interpreter should be aware when
languages do not have an appropriate direct interpretation of
certain terms and be able to provide the most appropriate
interpretation. The interpreter should likely make the recipient
aware of the issue, so that the interpreter and recipient can 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 follow confidentiality and impartiality rules to the
same extent as the recipient employee for whom they are interpreting
and/or to the extent their position requires;
Understand and adhere to their role as interpreters without
deviating into other roles--such as counselor or legal advisor--where
such deviation would be inappropriate (particularly in administrative
hearings contexts).
Some recipients, such as some state agencies, may have additional
self-imposed requirements for interpreters. Where individual rights
depend on precise, complete, and accurate interpretation or
translations, particularly in the context of administrative
proceedings, the use of certified interpreters is strongly
encouraged.\9\
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\9\ For those languages in which no formal accreditation or
certification currently exists, certain recipients may want to
consider a formal process for establishing the credentials of the
interpreter, or assess whether a particular level of membership in a
professional translation association can provide some indicator of
professionalism.
---------------------------------------------------------------------------
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, should be
as high as possible, given the circumstances, while the quality and
accuracy of language services in other circumstances 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. When the timeliness of services is important, and delay
would result in the effective denial of a benefit, service, or right,
language assistance likely cannot be unduly delayed. 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.
For example, language assistance could likely not be delayed in a
medical emergency, or when the time period in which an individual has
to exercise certain rights is shortly to expire. On the other hand,
when an LEP person is seeking a routine medical examination or seeks to
apply for certain benefits and has an ample period of time to apply for
those benefits, a recipient could likely delay the provision of
language services by requesting the LEP person to schedule an
appointment at a time during which the recipient would be able to have
an appropriate interpreter available.
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; 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. As noted above, certification or accreditation may not
always be possible or necessary. 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.''
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.\10\ Community
[[Page 47317]]
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.
---------------------------------------------------------------------------
\10\ For instance, there may be languages which do not have an
appropriate direct translation of some specialized medical 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 may 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 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, to translate
nonvital documents that have no legal or other consequence for LEP
persons who rely on them, a recipient may use translators that are less
skilled than the translators it uses to translate vital documents with
legal or other information upon which reliance has important
consequences. The permanent nature of written translations, however,
imposes additional responsibility on the recipient to take reasonable
steps to determine that the quality and accuracy of the translations
permit meaningful access by LEP persons.
B. 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:
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 social service eligibility workers or hospital
emergency room receptionists/workers, with staff who are bilingual and
competent to communicate directly with LEP persons in their language.
If bilingual staff are 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. In addition, there may be times when the role of the
bilingual employee may conflict with the role of an interpreter (for
instance, a bilingual law clerk would probably not be able to perform
effectively the role of a child support administrative hearing
interpreter and law clerk at the same time, even if the law clerk were
a qualified interpreter). Effective management strategies, including
any appropriate adjustments in assignments and protocols for using
bilingual staff, can ensure that bilingual staff are 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. While telephone interpreters can be used in numerous
situations, 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, if available, may sometimes help to resolve
this issue where necessary. In addition, where documents are being
discussed, it may be 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. Because such volunteers may have other demands on their
time, they may be more useful in providing language access for a
recipient's less critical programs and activities where the provision
of language services can reasonably be delayed. 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 as Interpreters. Some LEP persons
may feel more comfortable when a trusted family member or friend acts
as an interpreter. However, when a recipient encounters an LEP person
attempting to access its services, the recipient should make the LEP
person aware that he or she has the option of having the recipient
provide an interpreter for him/her without charge, or of using his/her
own interpreter. 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, the
recipient should, except as noted below, respect an LEP person's desire
to use an interpreter of his or her own choosing (whether a
professional interpreter, family member, or friend) in place of the
free language services expressly offered by the recipient. However, a
recipient may not require an LEP person to use a family member or
friend as an interpreter.
In addition, in emergency circumstances that are not reasonably
foreseeable, a recipient may not be able to offer free language
services, and temporary use of family members or friends as
interpreters may be necessary.
[[Page 47318]]
However, with proper planning and implementation, recipients should be
able to avoid most such situations.
If the LEP person voluntarily chooses to provide his or her own
interpreter, a recipient should consider whether making a record of
that choice, and of the recipient's offer of assistance, is
appropriate.
As with the use of other non-professional interpreters, the
recipient may need to consider issues of competence, appropriateness,
conflicts of interest, and confidentiality in determining whether it
should respect the desire of the LEP person to use an interpreter of
his or her own choosing. Recipients should take reasonable steps to
ascertain that family, legal guardians, caretakers, and other informal
interpreters are not only competent in the circumstances, but are also
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 some circumstances, family members (especially children) or
friends may not be 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 medical, law enforcement (e.g., sexual or violent
assaults), family, or financial information to a family member, friend,
or member of the local community. 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 perpetrator in a domestic violence matter. For
these reasons, where the LEP individual has declined the express offer
of free language assistance and has chosen to use a family member,
friend or other informal interpreter, if a recipient later determines
that a family member or friend is not competent or appropriate, the
recipient should provide competent interpreter services to the LEP
person in place of or, if appropriate, as a supplement to the LEP
individual's interpreter. For HHS recipient programs and activities,
this is particularly true, for example, in administrative hearings,
child or adult protective service investigations, situations in which
life, 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. Where precise,
complete, and accurate interpretations or translations of information
and/or testimony are critical, or where the competency of the LEP
person's interpreter is not established, a recipient may want to
consider providing 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
minor children as interpreters. The recipient should take reasonable
steps to ascertain whether the LEP person's choice is voluntary,
whether the LEP person is aware of the possible problems if the
preferred interpreter is a minor child, and whether the LEP person
knows that a competent interpreter could be provided by the recipient
at no cost.
Again, while the use of a family member or friend may be
appropriate, if that is the choice of the LEP person, the following are
examples of where the recipient should provide an interpreter for the
LEP individual:
[sbull] A woman or child is brought to an emergency room and is
seen by an emergency room doctor. The doctor notices the patient's
injuries and determines that they are consistent with those seen with
victims of abuse or neglect. In such a case, use of the spouse or a
parent to interpret for the patient may raise serious issues of
conflict of interest and may, thus, be inappropriate.
[sbull] A man, accompanied by his wife, visits an eye doctor for an
eye examination. The eye doctor offers him an interpreter, but he
requests that his wife interpret for him. The eye doctor talks to the
wife and determines that she is competent to interpret for her husband
during the examination. The wife interprets for her spouse as the
examination proceeds, but the doctor discovers that the husband has
cataracts that must be removed through surgery. The eye doctor
determines that the wife does not understand the terms he is using to
explain the diagnosis and, thus, that she is not competent to continue
to interpret for her husband. The eye doctor stops the examination and
calls an interpreter for the husband. A family member may be
appropriate to serve as an interpreter if preferred by the LEP person
in situations where the service provided is of a routine nature such as
a simple eye examination. However, in a case where the nature of the
service becomes more complex, depending on the circumstances, the
family member or friend may not be competent to interpret.
C. 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.
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. Where appropriate, recipients are encouraged to create a
plan for consistently determining, over time and across their 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. In determining what outreach materials may be most useful
to translate, such recipients may want to consider consulting with
appropriate community organizations.
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
[[Page 47319]]
of information in appropriate languages other than English regarding
where a LEP person might obtain an interpretation or translation of the
document.
Given the foregoing considerations, vital written materials could
include, for example:
[sbull] Consent and complaint forms.
[sbull] Intake forms with the potential for important consequences.
[sbull] Written notices of eligibility criteria, rights, denial,
loss, or decreases in benefits or services, actions affecting parental
custody or child support, and other hearings.
[sbull] Notices advising LEP persons of free language assistance.
[sbull] 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.
[sbull] Applications to participate in a recipient's program or
activity or to receive recipient benefits or services.
Nonvital written materials could include:
[sbull] Hospital menus.
[sbull] Third party documents, forms, or pamphlets distributed by a
recipient as a public service.
[sbull] For a non-governmental recipient, government documents and
forms.
[sbull] Large documents such as enrollment handbooks (although
vital information contained in large documents may need to be
translated).
[sbull] General information about the program intended for
informational purposes only.
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. Some recipients may 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 usually a one-time expense,
consideration should be given to whether the up-front 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.
Safe Harbor. Many recipients would like to ensure with greater
certainty that they comply with their Title VI 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, may be acceptable under such circumstances.
Safe Harbor. The following actions will be considered strong
evidence of compliance with the recipient's written-translation
obligations:
(a) The HHS 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
(b) 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 an application of the four factor test leads to the
determination that oral language services are needed and are
reasonable. Conversely, oral interpretation of documents may not
substitute for translation of vital written documents. For example,
oral interpretation of the rules of a half-way house or residential
treatment center may not substitute for translation of a short document
containing the rules of the half-way house or residential treatment
center and the consequences of violating those rules.
VII. Elements of Effective Plan on Language Assistance for LEP Persons
If, after completing the four-factor analysis, a recipient
determines that it should provide language assistance services, a
recipient may develop an implementation plan to address the identified
needs of the LEP populations it serves. Such 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 a recipient's
employees who serve or interact with the public could be an appropriate
and cost-effective means of documenting compliance with Title VI and
providing a framework for the provision of timely and reasonable
language assistance. Moreover, such written plans may provide
additional benefits to a recipient's managers in the areas of training,
administration, planning, and budgeting. These benefits may lead
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 HHS
[[Page 47320]]
recipients, such as recipients serving very few LEP persons and
recipients with very limited resources, may choose not to develop a
written LEP plan. However, the absence of a written LEP plan does not
obviate the underlying Title VI 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 may
want to consider alternative and reasonable ways to articulate how it
is providing meaningful access in compliance with Title VI. 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.
For the recipient who decides to develop a written implementation
plan, the following five steps may be helpful in designing such a plan;
they 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. Similarly,
this step of an LEP implementation plan 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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usdoj.gov/crt/cor/13166.htm, and
accessed at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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 identify themselves.
(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:
[sbull] Types of language services available.
[sbull] How staff can obtain those services.
[sbull] How to respond to LEP callers.
[sbull] How to respond to written communications from LEP persons.
[sbull] How to respond to LEP individuals who have in-person
contact with recipient staff.
[sbull] How to ensure competency of interpreters and translation
services.
(3) Training Staff
An effective LEP plan would likely include a process for
identifying staff who need to be trained regarding the recipient's LEP
plan, a process for training them, and the identification of the
outcomes of the training. Staff should know their obligations to
provide meaningful access to information and services for LEP persons.
An effective LEP plan may include training to ensure that:
[sbull] Staff know about LEP policies and procedures.
[sbull] Staff having contact with the public 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 may be important to take reasonable
steps to see to it that all employees in public contact positions 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
An effective LEP plan would likely include a description of the
process by which to provide notice of the services that are available
to the LEP persons it serves or, to the extent that a service area
exists, that reside in its service area and are eligible for services.
Once a recipient has decided, based on the four factors, that it will
provide language services, it may be 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 may
want to consider include:
[sbull] 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 public benefits and services, or
activities run by HHS 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.\11\
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\11\ The Social Security Administration has made such signs
available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ssa.gov/multilanguage/langlist1.htm, which
also can be accessed at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.lep.gov. These signs could, for
example, be modified for recipient use.
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[sbull] Stating in outreach documents that language services are
available from the recipient. 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.
[sbull] Working with community-based organizations and other
stakeholders to inform LEP individuals of the recipients' services,
including the availability of language assistance services.
[sbull] Using a telephone voice mail menu. The menu could be in the
most common languages encountered, and provide information about
available language assistance services and how to get them.
[sbull] Including notices in local newspapers in languages other
than English.
[sbull] Providing notices on non-English-language radio and
television stations about the available language assistance services
and how to get them.
[sbull] Presentations and/or notices at schools and religious
organizations.
(5) Monitoring and Updating the LEP Plan
An effective LEP plan would likely include a process for a
recipient to monitor its implementation of its plan and for updating
its plan as necessary. For example, determining, on an ongoing basis,
whether new documents,
[[Page 47321]]
programs, services, and activities need to be made accessible for LEP
individuals may be appropriate, and recipients may want to provide
notice of any changes in services to the LEP public and to employees.
In addition, changes in demographics, types of services, or other needs
may require annual reevaluation of an 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 may be to
seek feedback from the community.
In their reviews, recipients may want to consider assessing changes
in:
[sbull] Current LEP populations in service area or population
affected or encountered.
[sbull] Frequency of encounters with LEP language groups.
[sbull] Nature and importance of activities to LEP persons.
[sbull] Availability of resources, including technological advances
and sources of additional resources, and the costs imposed.
[sbull] Whether existing assistance is meeting the needs of LEP
persons.
[sbull] Whether staff knows and understands the LEP plan and how to
implement it.
[sbull] Whether identified sources for assistance are still
available and viable.
In addition to these five elements, effective plans set clear goals
and establish management accountability. Some recipients may also want
to consider whether they should provide 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 the HHS Office for
Civil Rights 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 Office for Civil Rights, and the entire Department, are
committed to assisting recipients of HHS financial assistance in
complying with their obligations under Title VI of the Civil Rights Act
of 1964. HHS believes that, on the whole, its recipients genuinely
desire to comply with their obligations, but that some may lack
knowledge of what is required of them or information concerning the
resources that are available to them that would assist in meeting their
Title VI obligations. Accordingly, HHS is committed to engaging in
outreach to its recipients and to being responsive to inquiries from
its recipients. Through its Administration on Children and Families,
Administration on Health Care Quality and Research, Administration on
Aging, Centers for Medicare and Medicaid Services, Health Resources
Services Administration, Office for Civil Rights, and Office of
Minority Health, HHS provides a variety of practical technical
assistance to recipients to assist them in serving LEP persons. This
technical assistance includes translated forms and vital documents;
training and information about best practices; and grants and model
demonstration funds for LEP services. HHS also provides a variety of
services for LEP persons who come in contact with the Department. These
services include oral language assistance services such as language
lines and interpreters, translation of written materials, and foreign
language Web sites.
Further, HHS is committed to working with representatives of state
and local health and social service agencies, organizations of such
agencies, hospital associations, medical and dental associations and
managed care organization to identify and share model plans, examples
of best practices, cost-saving approaches, and information on other
available resources, and to mobilize these organizations, to educate
their members on these matters.
HHS continues to explore how it can share with its recipients
language assistance measures, resources, cost-containment approaches,
and other information and knowledge, developed with respect to its own
federally conducted programs and activities, and welcomes suggestions
and comments in this regard. The HHS Office for Civil Rights, in
conjunction with other HHS components, through direct contact and its
Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.hhs/gov/ocr, will continue to provide technical
assistance that assists HHS recipients in understanding and complying
with their obligations under Title VI, and assists recipients and the
public by identifying resources offered by the Office for Civil Rights
and other HHS components that facilitate compliance with Title VI, with
respect to LEP persons. This and other helpful information may also be
accessed at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.lep.gov.
The Title VI regulations provide that HHS 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, HHS will inform
the recipient in writing of this determination, including the basis for
the determination. However, if a case is fully investigated and results
in a finding of noncompliance, HHS 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, HHS must
secure compliance through the termination of federal assistance after
the HHS recipient has been given an opportunity for an administrative
hearing and/or by referring the matter to DOJ to seek injunctive relief
or pursue other enforcement proceedings. HHS engages in voluntary
compliance efforts and provides technical assistance to recipients at
all stages of an investigation. During these efforts, HHS 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, HHS'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, HHS 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, HHS 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 with Title VI, 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, HHS 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
[[Page 47322]]
encouraged to document their efforts to provide LEP persons with
meaningful access to federally assisted programs and activities.
Appendix A
Questions and Answers Regarding the Department of Health and Human
Services Guidance to Federal Financial Assistance Recipients Regarding
the Title VI Prohibition Against National Origin Discrimination
Affecting Limited English Proficient Persons
1. Q. What is the purpose of the guidance on language access
released by the Department of Health and Human Services (HHS)?
A. The purpose of the Policy Guidance is to clarify to members
of the public, and to providers of health and social services who
receive Federal financial assistance from HHS, the responsibility of
such providers to Limited English Proficient (LEP) persons, pursuant
to Title VI of the Civil Rights Act of 1964. Among other things,
this guidance clarifies existing legal requirements by providing a
description of the factors providers of health and social services
who receive Federal financial assistance from HHS should consider in
determining and fulfilling their responsibilities to LEP persons
under Title VI.
2. Q. What does the policy guidance do?
A. The policy guidance does the following:
[sbull] Reiterates the principles of Title VI with respect to
LEP persons.
[sbull] Discusses the reasonable policies, procedures and other
steps that recipients can take to ensure meaningful access to their
program by LEP persons.
[sbull] Clarifies that failure to take one or more of these
steps does not necessarily mean noncompliance with Title VI.
[sbull] Explains to recipients of Federal financial assistance
that OCR will determine compliance on a case by case basis, in light
of the following four factors: (1) The number or proportion of LEP
persons eligible to be served or likely to be encountered by the
program, activity or service provided by the recipient; (2) the
frequency with which LEP individuals come in contact with the
recipient's program, activity or service; (3) the nature and
importance of the recipient's program, activity, or service; and (4)
the resources available to the recipient and costs.
[sbull] Provides that, based on these four factors, recipients
with limited resources will not have the same compliance
responsibilities applicable to recipients with greater resources.
All recipients will have a great deal of flexibility in achieving
compliance.
[sbull] Provides that OCR will offer extensive technical
assistance for recipients.
3. Q. Does the guidance impose new requirements on recipients?
A. No. Since its enactment, Title VI of the Civil Rights Act of
1964 has prohibited discrimination on the basis of race, color or
national origin in any program or activity that receives Federal
financial assistance. Title VI requires that recipients take
reasonable steps to ensure meaningful access to their programs and
activities by LEP persons. Over the past three decades, OCR has
conducted thousands of investigations and reviews involving language
differences that affect the access of LEP persons to medical care
and social services. This guidance synthesizes the legal
requirements that OCR has been enforcing for over three decades.
4. Q. Who is covered by the guidance?
A. Covered entities include any state or local agency, private
institution or organization, or any public or private individual
that (1) Operates, provides or engages in health, or social service
programs and activities, and (2) receives Federal financial
assistance from HHS directly or through another recipient/covered
entity. Examples of covered entities include but are not limited to
the following entities, which may receive federal financial
assistance: hospitals, nursing homes, home health agencies, managed
care organizations, universities and other entities with health or
social service research programs; state, county and local health
agencies; state Medicaid agencies; state, county and local welfare
agencies; federally-funded programs for families, youth and
children; Head Start programs; public and private contractors,
subcontractors and vendors; physicians; and other providers who
receive Federal financial assistance from HHS.
5. Q. How does the guidance affect small practitioners and
providers who are recipients of federal financial assistance?
A. Small practitioners and providers will have considerable
flexibility in determining precisely how to fulfill their
obligations to take reasonable steps to ensure meaningful access for
persons with limited English proficiency. OCR will assess compliance
on a case by case basis and will take into account the following
factors: (1) The number or proportion of LEP persons eligible to be
served or likely to be encountered by the recipient's program,
activity or service; (2) the frequency with which LEP individuals
come in contact with the program, activity or service; (3) the
nature and importance of the program, activity, or service provided
by the recipient; and (4) the resources available to the recipient
and costs. There is no ``one size fits all'' solution for Title VI
compliance with respect to LEP persons, and what constitutes
``reasonable steps'' for large providers may not be reasonable where
small providers are concerned. Thus, smaller recipients with smaller
budgets will not be expected to provide the same level of language
services as larger recipients with larger budgets. OCR will continue
to be available to provide technical assistance to HHS recipients,
including sole practitioners and other small recipients, seeking to
operate an effective language assistance program and to comply with
Title VI.
6. Q. The guidance identifies some specific circumstances which
OCR will consider to be strong evidence that a program is in
compliance with its obligation under Title VI to provide written
materials in languages other than English. Does this mean that a
recipient/covered entity will be considered out of compliance with
Title VI if its program does not fall within these circumstances?
A. No. The circumstances outlined in the guidance are intended
to identify circumstances which amount to a ``safe harbor'' for
recipients who desire greater certainty with respect to their
obligations to provide written translations. This 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. However, the
failure to provide written translations under the circumstances
outlined in the ``safe harbor''does not mean there is non-
compliance. Rather, the safe harbor provides a tool which recipients
may use to consider whether the number or proportion of LEP persons
served call for written translations of vital documents into
frequently encountered languages other than English. However, even
if the safe harbors are not used, if written translation of certain
documents would be so financially 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 when, upon
application of the four factors, translation services are required.
7. Q. The guidance makes reference to ``vital documents'' and
notes that, in certain circumstances, a recipient/covered entity may
have to translate such documents into other languages. What is a
vital document?
A. As clarified by the guidance, the extent of Title VI
obligations will be evaluated based on a four-factor test including
the nature or importance of the service. In this regard, the
guidance points out that documents deemed ``vital'' to the access of
LEP persons to programs and services may often have to be
translated. Whether or not a document (or the information it
contains or 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. Where appropriate,
recipients are encouraged to create a plan for consistently
determining, over time and across their various activities, what
documents are ``vital'' to the meaningful access of the LEP
populations they serve. Thus, vital documents could include, for
instance, consent and complaint forms, intake forms with potential
for important health consequences, written notices of eligibility
criteria, rights, denial, loss, or decreases in benefits or
services, actions affecting parental custody or child support, and
other hearings, 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, or applications to
participate in a recipient's program or activity or to receive
recipient benefits or services.
8. Q. Will recipient/covered entities have to translate large
documents such as managed care enrollment handbooks?
A. Not necessarily. Some large documents may contain no vital
information, and others will contain vital information that will
have to be translated. Again, the obligation to
[[Page 47323]]
translate will depend on application of the four factors. In this
context, vital information may include, for instance, the provision
of information in appropriate languages other than English, or
identifying where a LEP person might obtain an interpretation or
translation of the document. However, depending on the
circumstances, large documents such as enrollment handbooks may not
need to be translated or may not need to be translated in their
entirety.
9. Q. May an LEP person use a family member or friend as his or
her interpreter?
A. Some LEP persons may feel more comfortable when a trusted
family member or friend acts as an interpreter. When an LEP person
attempts to access the services of a recipient of federal financial
assistance, who upon application of the four factors is required to
provide an interpreter, the recipient should make the LEP person
aware that he or she has the option of having the recipient provide
an interpreter for him/her without charge, or of using his/her own
interpreter. Recipients should also consider the special
circumstances discussed in the guidance that may affect whether a
family member or friend should serve as an interpreter, such as
whether the situation is an emergency, and concerns over competency,
confidentiality, privacy, or conflict of interest.
10. Q. May a recipient/covered entity require a LEP person to
use a family member or a friend as his or her interpreter?
A. No.
11. Q. How does low health literacy, non-literacy, non-written
languages, blindness and deafness among LEP populations affect the
responsibilities of federal fund recipients?
A. Effective communication in any language requires an
understanding of the literacy levels of the eligible populations.
However, where a LEP individual has a limited understanding of
health matters or cannot read, access to the program is complicated
by factors not generally directly related to national origin or
language and thus is not a Title VI issue. Under these
circumstances, a recipient should provide remedial health
information to the same extent that it would provide such
information to English-speakers. Similarly, a recipient should
assist LEP individuals who cannot read in understanding written
materials as it would non-literate English-speakers. A non-written
language precludes the translation of documents, but does not affect
the responsibility of the recipient to communicate the vital
information contained in the document or to provide notice of the
availability of oral translation. Of course, other law may be
implicated in this context. For instance, Section 504 of the
Rehabilitation Act of 1973 requires that federal fund recipients
provide sign language and oral interpreters for people who have
hearing impairments and provide materials in alternative formats
such as in large print, braille or on tape for individuals with
visual impairments; and the Americans with Disabilities Act imposes
similar requirements on health and human service providers.
12. Q. What assistance is available to help to recipients who
wish to come into compliance with Title VI?
A. For over three decades, OCR has provided substantial
technical assistance to recipient/covered entities who are seeking
to ensure that LEP persons can meaningfully access their programs or
services. Our regional staff is prepared to work with recipients to
help them meet their obligations under Title VI. As part of its
technical assistance services, OCR can help identify best practices
and successful strategies used by other federal fund recipients,
identify sources of federal reimbursement for translation services,
and point providers to other resources.
In addition, the entire Department is also committed to
assisting recipients of HHS financial assistance in complying with
their obligations under Title VI of the Civil Rights Act of 1964.
Through its Administration on Children and Families, Administration
on Health Care Quality and Research, Administration on Aging,
Centers for Medicare and Medicaid Services, Health Resources and
Services Administration, Office for Civil Rights, Office of Minority
Health and Substance Abuse and Mental Health Services
Administration, HHS provides a variety of practical technical
assistance to recipients to assist them in serving LEP persons. This
technical assistance includes translated forms and vital documents;
training and information about best practices; and grants and model
demonstration funds for LEP services. HHS believes that, on the
whole, its recipients genuinely desire to comply with their
obligations, and that increased understanding of compliance
responsibilities and knowledge about cost-effective resources that
are increasingly available to them, will assist recipients/covered
entities in meeting Title VI obligations. Accordingly, HHS is
committed to providing outreach to its recipients and to being
responsive to queries from its recipients. It is also committed to
working with representatives of state and local health and social
service agencies, organizations of such agencies, hospital
associations, medical and dental associations and managed care
organizations to identify and share model plans, examples of best
practices, cost-saving approaches, and information on other
available resources, and to mobilize these organizations to educate
their members on these matters. HHS will continue to promote best
practices in language access and fund model demonstration programs
in this area. The HHS Office for Civil Rights, in conjunction with
other HHS components, will continue to provide technical assistance
and outreach to HHS recipients to assist them in understanding and
complying with their obligations under Title VI and to provide
information to recipients and the public through its Web site at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.hhs/gov/ocr. LEP information and resources can also be
found at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.lep.gov.
13. Q. How will OCR enforce compliance by recipient/covered
entities with the LEP requirements of Title VI?
A. The goal for Title VI and Title VI regulatory enforcement is
to achieve voluntary compliance. The requirement to take reasonable
steps to provide meaningful access to LEP persons is enforced and
implemented by OCR 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 OCR 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, OCR will inform the recipient in writing of this
determination, including the basis for the determination. However,
if a case is fully investigated and results in a finding of
noncompliance, OCR 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,
OCR may secure compliance through the termination of federal
assistance after the recipient has been given an opportunity for an
administrative hearing. OCR may also refer the matter to the
Department of Justice to secure compliance through any other means
authorized by law.
At all stages of an investigation, OCR engages in voluntary
compliance efforts and provides technical assistance to recipients.
During these efforts, OCR 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,
OCR's primary concern is to ensure that the recipient's policies and
procedures contain reasonable steps to provide meaningful access for
LEP persons to the recipient's programs, activities or services. As
a result, the vast majority of all complaints have been resolved
through such voluntary efforts.
14. Q. Does issuing this guidance mean that OCR will be changing
how it enforces compliance with Title VI?
A. No. How OCR enforces Title VI is governed by the Title VI
implementing regulations. The methods and procedures used to
investigate and resolve complaints, and conduct compliance reviews,
have not changed.
15. Q. What is HHS doing to promote access for LEP persons to
its own programs and services?
A. HHS provides a variety of services for LEP persons who come
in contact with the Department. These services include oral language
assistance services such as language lines and interpreters;
translation of written materials; and foreign language web sites.
HHS will continue to explore how it can share with its recipients
language assistance measures, resources, cost-containment
approaches, and other information and knowledge, developed with
respect to its own federally conducted programs and activities, and
welcomes any suggestions in this regard.
[FR Doc. 03-20179 Filed 8-6-03; 8:45 am]
BILLING CODE 4153-01-P