Federal Coordination And Compliance Section

 [Federal Register: July 23, 2003 (Volume 68, Number 141)] [Notices]                [Page 43519-43530] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr23jy03-55]                           -----------------------------------------------------------------------  GENERAL SERVICES ADMINISTRATION  [2003-N04]    Guidance to Federal Financial Assistance Recipients Regarding  Title VI Prohibition Against National Origin Discrimination Affecting  Limited English Proficient Persons  AGENCIES: Office of Civil Rights, General Services Administration  (GSA).  ACTION: Notice of interim final policy guidance document.  -----------------------------------------------------------------------  SUMMARY: The General Services Administration (GSA) is publishing for  public comment interim final policy guidance on Title VI's prohibition  against national origin discrimination as it affects limited English  proficient (LEP) persons. This guidance will become final after a 30- day comment period unless GSA determines that the comments require  further modification to the guidance. Once final, this policy guidance  will supplant the policy guidance published on January 17, 2001.  DATES: Submit comments on or before August 22, 2003. GSA will review  all comments and will determine what modifications, if any, to this  policy guidance are necessary. Because this guidance must adhere to the  Federal-wide compliance standards and framework detailed in the model  U.S. Department of Justice's LEP guidance, GSA specifically solicits  comments on the nature, scope, and appropriateness of the GSA-specific  examples set out in this guidance explaining and/or highlighting how  those consistent Federal-wide compliance standards are applicable to  recipients of Federal financial assistance through GSA.  ADDRESSES: Interested persons should submit written comments to Ms.  Regina Budd, Deputy Associate Administrator, Office of Civil Rights,  General Services Administration, 1800 F Street, NW., Suite 5127,  Washington, DC 20405. Comments may also be submitted by facsimile at  (202) 219-3369 or at e-mail OCR@gsa.gov. FOR FURTHER INFORMATION CONTACT: The Regulatory Secretariat, Room 4035,  GS Building, Washington, DC, 20405, (202) 208-7312, for information  pertaining to status or publication schedules. For clarification of  content, contact Ms. Evelyn Britton at the Office of Civil Rights,  General Services Administration, 1800 F Street, NW., Washington, DC  20405. Telephone (202) 501-0767; 1-800-662-6376; TDD 1-888-267-7660.  [[Page 43520]]   SUPPLEMENTARY INFORMATION: The purpose of this policy guidance is to  further clarify the responsibilities of recipients of Federal financial  assistance from GSA and assist them in fulfilling their  responsibilities to limited English proficient (LEP) persons, pursuant  to Title VI of the Civil Rights Act of 1964 and GSA implementing  regulations. The policy guidance explains that to avoid discrimination  against LEP persons on the ground of national origin, recipients must  take reasonable steps to ensure that LEP persons have meaningful access  to the programs, services, and information those recipients provide,  free of charge.     GSA's guidance for recipients was originally published on January  17, 2001, and became effective immediately. (See 66 FR 4026.) That  document, like the following guidance, was based on policy guidance  issued by the Department of Justice entitled ``Enforcement of Title VI  of the Civil Rights Act of 1964--National Origin Discrimination Against  Persons with Limited English Proficiency.'' (See 65 FR 50123, August  16, 2000.)     On February 20, 2002, the GSA re-published its recipient guidance  for additional public comment. (See 67 FR 7692.) Comments representing  24 different organizations were received, and the following guidance  was developed after review and consideration of those comments. Prior  comments on the original guidance need not be re-submitted.     On March 14, 2002, the Office of Management and Budget (OMB) issued  a Report to Congress titled ``Assessment of the Total Benefits and  Costs of Implementing Executive Order No. 13166: Improving Access to  Services for Persons with Limited English Proficiency.'' The Report  made several recommendations designed to minimize confusion and ensure  that funds dedicated to LEP services best advance meaningful access for  LEP individuals.     One significant recommendation was the adoption of uniform guidance  across all Federal agencies, with flexibility to permit tailoring to  each agency's specific recipients. In a memorandum to all Federal  funding agencies dated July 8, 2002, Assistant Attorney General Ralph  Boyd of DOJ's Civil Rights Division requested that agencies model their  agency-specific guidance for recipients after sections I through VIII  of DOJ's June 18, 2002, guidance. Therefore, this guidance is modeled  after the language and format of DOJ's revised, final guidance,  ``Guidance to Federal Financial Assistance Recipients Regarding Title  VI Prohibition Against National Origin Discrimination Affecting Limited  English Proficient Persons'', published on June 18, 2002, 67 FR 41455.     It has been determined that the guidance does not constitute a  regulation subject to the rulemaking requirements of the Administrative  Procedure Act, 5 U.S.C. 553.     The text of the complete guidance document appears as an attachment  to this notice.      Dated: July 1, 2003. Madeline Caliendo, Associate Administrator, Office of Civil Rights.  I. Introduction      Most individuals living in the United States read, write, speak and  understand English. There are many individuals, however, for whom  English is not their primary language. For instance, based on the 2000  census, over 26 million individuals speak Spanish and almost 7 million  individuals speak an Asian or Pacific Island language at home. If these  individuals have a limited ability to read, write, speak, or understand  English, they are limited English proficient, or ``LEP.'' While  detailed data from the 2000 census has not yet been released, 26% of  all Spanish-speakers, 29.9% of all Chinese-speakers, and 28.2% of all  Vietnamese-speakers reported that they spoke English ``not well'' or  ``not at all'' in response to the 1990 census.     Language for LEP individuals can be a barrier to accessing  important benefits or services, understanding and exercising important  rights, complying with applicable responsibilities, or understanding  other information provided by federally funded programs and activities.  The Federal Government funds an array of services that can be made  accessible to otherwise eligible LEP persons. The Federal Government is  committed to improving the accessibility of these programs and  activities to eligible LEP persons, a goal that reinforces its equally  important commitment to promoting programs and activities designed to  help individuals learn English. Recipients should not overlook the  long-term positive impacts of incorporating or offering English as a  Second Language (ESL) programs in parallel with language assistance  services. ESL courses can serve as an important adjunct to a proper LEP  plan. However, the fact that ESL classes are made available does not  obviate the statutory and regulatory requirement to provide meaningful  access for those who are not yet English proficient. Recipients of  Federal financial assistance have an obligation to reduce language  barriers that can preclude meaningful access by LEP persons to  important government services.\1\ ---------------------------------------------------------------------------      \1\ GSA recognizes that many recipients had language assistance  programs in place prior to the issuance of Executive Order 13166.  This policy guidance provides a uniform framework for a recipient to  integrate, formalize, and assess the continued vitality of these  existing and possibly additional reasonable efforts based on the  nature of its program or activity, the current needs of the LEP  populations it encounters, and its prior experience in providing  language services in the community it serves. ---------------------------------------------------------------------------      In certain circumstances, failure to ensure that LEP persons can  effectively participate in or benefit from Federally assisted programs  and activities may violate the prohibition under Title VI of the Civil  Rights Act of 1964, 42 U.S.C. 2000d and Title VI regulations against  national origin discrimination. The purpose of this policy guidance is  to assist recipients in fulfilling their responsibilities to provide  meaningful access to LEP persons under existing law. This policy  guidance clarifies existing legal requirements for LEP persons by  providing a description of the factors recipients should consider in  fulfilling their responsibilities to LEP persons.\2\ These are the same  criteria GSA will use in evaluating whether recipients are in  compliance with Title VI and Title VI regulations. ---------------------------------------------------------------------------      \2\ The policy guidance is not a regulation but rather a guide.  Title VI and its implementing regulations require that recipients  take responsible steps to ensure meaningful access by LEP persons.  This guidance provides an analytical framework that recipients may  use to determine how best to comply with statutory and regulatory  obligations to ensure meaningful access to the benefits, services,  information, and other important portions of their programs and  activities for individuals who are limited English proficient. ---------------------------------------------------------------------------      In a memorandum to all Federal funding agencies, dated July 8,  2002, Assistant Attorney General Ralph Boyd of the U.S. Department of  Justice's (DOJ) Civil Rights Division requested that agencies model  their agency-specific guidance for recipients after Sections I-VIII of  DOJ's June 18, 2002 guidance. Therefore, this guidance is modeled after  the language and format of the DOJ's revised, final guidance,  ``Guidance to Federal Financial Assistance Recipients Regarding Title  VI Prohibition Against National Origin Discrimination Affecting Limited  English Proficient Persons'', published June 18, 2002, 67 FR 41455. The  DOJ's role under Executive Order 13166 is unique. The Order charges DOJ  with responsibility for providing LEP Guidance to other Federal  agencies and for ensuring consistency among each agency-specific  guidance. Consistency among Federal agencies is particularly important.  Inconsistency or contradictory guidance could confuse  [[Page 43521]]  recipients of Federal funds and needlessly increase costs without  rendering the meaningful access for LEP persons that this Guidance is  designed to address. As with most government initiatives, this requires  balancing several principles. While this Guidance discusses that  balance in some detail, it is important to note the basic principles  behind that balance. First, we must ensure that Federally-assisted  programs aimed at the American public do not leave some behind simply  because they face challenges communicating in English. This is of  particular importance because, in many cases, LEP individuals form a  substantial portion of those encountered in Federally-assisted  programs. Second, we must achieve this goal while finding constructive  methods to reduce the costs of LEP requirements on small businesses,  small local governments, or small non-profits that receive Federal  financial assistance.     There are many productive steps that the Federal government, either  collectively or as individual grant agencies, can take to help  recipients reduce the costs of language services without sacrificing  meaningful access for LEP persons. Without these steps, certain smaller  grantees may well choose not to participate in Federally assisted  programs, threatening the critical functions that the programs strive  to provide. To that end, GSA plans to continue to provide assistance  and guidance in this important area. An interagency working group on  LEP has developed a Web site, http://www.lep.gov, to assist in  disseminating this information to recipients, Federal agencies, and the  communities being served.     Many commentators have noted that some have interpreted the case of  Alexander v. Sandoval, 532 U.S. 275 (2001), as impliedly striking down  the regulations promulgated under Title VI that form the basis for the  part of Executive Order 13166 that applies to Federally assisted  programs and activities. We have taken the position that this is not  the case, and will continue to do so. Accordingly, we will strive to  ensure that Federally assisted programs and activities work in a way  that is effective for all eligible beneficiaries, including those with  limited English proficiency.  II. Legal Authority      Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.  2000d, provides that no person shall ``on the ground of race, color, or  national origin, be excluded from participation in, be denied the  benefits of, or be subjected to discrimination under any program or  activity receiving Federal financial assistance.'' Section 602  authorizes and directs Federal agencies that are empowered to extend  Federal financial assistance to any program or activity ``to effectuate  the provisions of [section 601] * * * by issuing rules, regulations, or  orders of general applicability.'' 42 U.S.C. 2000d-1. GSA regulations  promulgated pursuant to section 602 forbid recipients from  ``utiliz[ing] criteria or methods of administration which have the  effect of subjecting individuals to discrimination because of their  race, color, or national origin, or have the effect of defeating or  substantially impairing accomplishment of the objectives of the program  as respects individuals of a particular race, color, or national  origin.'' 41 CFR 101.6.204-2(a)(2). The Supreme Court, in Lau v.  Nichols, 414 U.S. 563 (1974), interpreted regulations promulgated by  the former Department of Health, Education, and Welfare to hold that  Title VI prohibits conduct that has a disproportionate effect on LEP  persons because such conduct constitutes national origin  discrimination. In ``Lau,'' a San Francisco school district that had a  significant number of non-English speaking students of Chinese origin  was required to take reasonable steps to provide them with a meaningful  opportunity to participate in Federally funded educational programs.     On August 11, 2000, Executive Order 13166 was issued. ``Improving  Access to Services for Persons with Limited English Proficiency,'' 65  FR 50121 (August 16, 2000). Under that order, every Federal agency that  provides financial assistance to non-Federal entities must publish  guidance on how their recipients can provide meaningful access to LEP  persons and thus comply with Title VI regulations forbidding funding  recipients from ``restrict[ing] an individual in any way in the  enjoyment of any advantage or privilege enjoyed by others receiving any  service, financial aid, or other benefit under the program'' or from  ``utiliz[ing] criteria or methods of administration which have the  effect of subjecting individuals to discrimination because of their  race, color, or national origin, or have the effect of defeating or  substantially impairing accomplishment of the objectives of the program  as respects individuals of a particular race, color, or national  origin.''     On that same day, DOJ issued a general guidance document addressed  to ``Executive Agency Civil Rights Officers'' setting forth general  principles for agencies to apply in developing guidance documents for  recipients pursuant to the Executive Order. ``Enforcement of Title VI  of the Civil Rights Act of 1964 National Origin Discrimination Against  Persons With Limited English Proficiency,'' 65 FR 50123 (August 16,  2000) (``DOJ LEP Guidance'').     Subsequently, Federal agencies raised questions regarding the  requirements of the Executive Order, especially in light of the Supreme  Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001). On  October 26, 2001, Ralph F. Boyd, Jr., Assistant Attorney General for  the Civil Rights Division, issued a memorandum for ``Heads of  Departments and Agencies, General Counsels and Civil Rights  Directors.'' This memorandum clarified and reaffirmed the DOJ LEP  Guidance in light of Sandoval.\3\ The Assistant Attorney General stated  that because Sandoval did not invalidate any Title VI regulations that  proscribe conduct that has a disparate impact on covered groups--the  types of regulations that form the legal basis for the part of  Executive Order 13166 that applies to Federally assisted programs and  activities--the Executive Order remains in force. ---------------------------------------------------------------------------      \3\ The memorandum noted that some commentators have interpreted  Sandoval as impliedly striking down the disparate-impact regulations  promulgated under Title VI that form the basis for the part of  Executive Order 13166 that applies to Federally assisted programs  and activities, See, e.g., Sandoval 532 U.S. at 286, 286 n.6 (``[W]e  assume for purposes of this decision that section 602 confers the  authority to promulgate disparate-impact regulation; * * * We cannot  help observing, however, how strange it is to say that disparate- impact regulations are `inspired by, at the service of, and  inseparably intertwined with' Sec. 601 * * * when Sec. 601 permits  the very behavior that the regulations forbid.''). The memorandum,  however, made clear that DOJ disagreed with the commentators'  interpretation. Sandoval holds principally that there is no private  right of action to enforce Title VI disparate-impact regulations. It  did not address the validity of those regulations or Executive Order  13166 or otherwise limit the authority and responsibility of Federal  grant agencies to enforce their own implementing regulations. ---------------------------------------------------------------------------      Pursuant to Executive Order 13166, GSA developed its own guidance  document for recipients and initially issued it on January 17, 2001,  ``Limited English Proficiency Policy Guidance for recipients of Federal  Financial Assistance,'' 66 FR 4026 (January 17, 2001) (``LEP Guidance  for GSA Recipients''). Because GSA did not receive any public comment  on its January 17, 2001 publication, the Agency republished on February  20, 2002 its existing guidance document for additional public comment,  ``Limited English Proficiency Policy Guidance for Recipients of Federal  Financial Assistance,'' 67 FR 7692 (February 20, 2002). GSA has since  received  [[Page 43522]]  significant public comment. This guidance document is thus published  pursuant to Executive Order 13166. Once final it will supplant the  January 17, 2001 publication in light of the public comment received  and Assistant Attorney General Boyd's October 26, 2001 clarifying  memorandum and July 8, 2002 memorandum advising agencies to revise and  re-publish their guidance, modeled after DOJ's June 18, 2002 final  guidance.  III. Who Is Covered?      GSA's implementation regulations provide, in part, at 41 CFR 101- 6.204-1:     ``No person in the United States shall, on the grounds of race,  color, or national origin, be excluded from participation in, be denied  the benefits of, or be otherwise subjected to discrimination under any  program to which this subpart applies.''     Specific discriminatory actions prohibited are addressed at 41 CFR  101-6.204-2: ``(a)(1) In connection with any program to which this  subpart applies, a recipient may not, directly or through contractual  or other arrangements, on the ground of race, color, or national  origin:     (i) Deny an individual any services/benefits, financial aid, or  other benefit provided under the program;     (ii) Provide any service, financial aid, or other benefit to any  individual which is different, or is provided in a different manner,  from that provided to others under the program;     (iii) Subject an individual to segregation or separate treatment in  any matter related to his receipt of any service, financial aid, or  other benefit under the program;     (iv) Restrict an individual in any way in the enjoyment of any  advantage or privilege enjoyed by others receiving any service,  financial aid, or other benefit under the program;     (v) Treat an individual differently from others in determining  whether he satisfies any admission, enrollment, quota, eligibility,  membership or other requirement or condition which individuals must  meet in order to be provided any service, financial aid, or other  benefit provided under the program;     (vi) Deny an individual an opportunity to participate in the  program through the provision of services or otherwise, or afford him  an opportunity to do so which is different from that afforded others  under the program * * *.''     Federal financial assistance includes grants, training, use of  equipment, donations of surplus property, and other assistance.  Recipients of GSA assistance include, for example: \4\      \4\ Pursuant to Executive Order 13166, the meaningful access  requirement of the Title VI regulations and the four-factor analysis  set forth in the GSA LEP Guidance are to additionally apply to the  programs and activities of Federal agencies, including the GSA. ---------------------------------------------------------------------------  --State and local agencies involved in such activities as:  Conservation; economic development; education; park and recreation  programs; public safety; public health programs for the elderly; and  programs for the homeless; and --Nonprofit organizations that perform educational and public health  activities exempt from taxation under section 501 of the Internal  Revenue such as: Medical institutions; hospitals; clinics; health  centers; and drug abuse treatment centers; schools; universities; Head  Start; childcare centers; educational radio and television stations;  museums attended by the public; libraries; food banks; and other  eligible organizations that provide support and services to the needy,  shelter, or support services to the homeless or impoverished.      Subrecipients likewise are covered when Federal funds are passed  through from one recipient to a subrecipient. Coverage extends to a  recipient's entire program or activity, i.e., to all parts of a  recipient's operations. This is true even if only one part of the  recipient receives the Federal assistance.\5\      \5\ However, if a Federal agency were to decide to terminate  Federal funds based on noncompliance with Title VI or its  regulations, only funds directed to the particular program or  activity that is out of compliance would be terminated. 42 U.S.C.  2000d-1. ---------------------------------------------------------------------------      Example: GSA donates a surplus backhoe and grader to a State  park within the State Department of Parks and Recreation. All of the  operations of the entire State Department of Parks and Recreation-- not just the particular park that received the property--are  covered.      Finally, some recipients operate in jurisdictions in which English  has been declared the official language. Nonetheless, these recipients  continue to be subject to Federal non-discrimination requirements,  including those applicable to the provision of Federally assisted  services to persons with limited English proficiency.  IV. Who Is a Limited English Proficient Individual?      Individuals who do not speak English as their primary language and  who have a limited ability to read, write, speak, or understand English  can be limited English proficient, or ``LEP,'' entitled to language  assistance with respect to a particular type of service, benefit, or  encounter.     Examples of populations likely to include LEP persons who are  encountered and/or served by GSA recipients and should be considered  when planning language services include, but are not limited to:  --Persons seeking assistance from a county's emergency services, such  as 9-1-1 service, which include individuals reporting automobile  accidents, fires, criminal, or other activity; and individuals who  encounter the legal system; --Parents or other family members seeking information about childcare  and educational services; and --Individuals seeking services from homeless shelters, domestic abuse  shelters, food banks, clinics, hospitals, medical institutions, or  health-care providers.  V. How Does a Recipient Determine the Extent of Its Obligation To  Provide LEP Services?      Recipients are required to take reasonable steps to ensure  meaningful access to their programs and activities by LEP persons.  While designed to be a flexible and fact-dependent standard, the  starting point is an individualized assessment that balances the  following four factors: (1) The number or proportion of LEP persons  eligible to be served or likely to be encountered by the program or  grantee; (2) the frequency with which LEP individuals come in contact  with the program; (3) the nature and importance of the program,  activity, or service provided by the program to people's lives; and (4)  the resources available to the grantee/recipient and costs. As  indicated above, the intent of this guidance is to suggest a balance  that ensures meaningful access by LEP persons to critical services  while not imposing undue burdens on small business, small local  governments, or small nonprofits.     After applying the above four-factor analysis, a recipient may  conclude that different language assistance measures are sufficient for  the different types of programs or activities in which it engages. For  instance, some of a recipient's activities will be more important than  others and/or have greater impact on or contact with LEP persons, and  thus may require more in the way of language assistance. The  flexibility that recipients have in addressing the needs of the LEP  populations they serve does not diminish, and should not be used to  minimize, the obligation that those needs be addressed. GSA recipients  should apply the following four factors  [[Page 43523]]  to the various kinds of contacts that they have with the public to  assess language needs and decide what reasonable steps they should take  to ensure meaningful access for LEP persons.  (1) The Number or Proportion of LEP Persons Served or Encountered in  the Eligible Service Population      One factor in determining what language services recipients should  provide is the number or proportion of LEP persons from a particular  language group served or encountered in the eligible service  population. The greater the number or proportion of these LEP persons,  the more likely language services are needed. Ordinarily, persons  ``eligible to be served, or likely to be directly affected by,'' a  recipient's program or activity are those who are served or encountered  in the eligible service population. This population will be program- specific, and includes persons who are in the geographic area that has  been approved by a Federal grant agency as the recipient's service  area. However, where, for instance, a nonprofit organization operates  several shelters within a large county and one health clinic that  serves a large LEP population in a rural part of the country, the  appropriate service area for the clinic is most likely that portion of  the county served by the health clinic, and not the entire population  served by the nonprofit organization. The same would be true for the  shelters. Where no service area has previously been approved, the  relevant service area may be that which is approved by state or local  authorities or designated by the recipient itself, provided that these  designations do not themselves discriminatorily exclude certain  populations. When considering the number or proportion of LEP  individuals in a service area, recipients should consider LEP parent(s)  when their English-proficient or LEP minor children and dependents  encounter the recipient's services, programs or activities.     Recipients should first examine their prior experiences with LEP  encounters and determine the breadth and scope of language services  that were needed. In conducting this analysis, it is important to  include language minority populations that are eligible for their  programs or activities but may be underserved because of existing  language barriers. Other data should be consulted to refine or validate  a recipient's prior experience, including the latest census data for  the area served, data from school systems and from community  organizations, and data from state and local governments.\6\ Community  agencies, school systems, religious organizations, legal aid entities,  and others can often assist in identifying populations for whom  outreach is needed and who would benefit from the recipients' programs  and activities were language services provided. ---------------------------------------------------------------------------      \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. ---------------------------------------------------------------------------  (2) The Frequency With Which LEP Individuals Come in Contact With the  Program      Recipients should assess, as accurately as possible, the frequency  with which they have or should have contact with an LEP individual from  different language groups seeking assistance. The more frequent the  contact with a particular language group, the more likely that enhanced  language services in that language are needed. The steps that are  reasonable for a recipient that serves an LEP person on a one-time  basis will be very different than those expected from a recipient that  serves LEP persons daily. It is also advisable to consider the  frequency of different types of language contacts. For example,  frequent contacts with Spanish-speaking people who are LEP may require  certain assistance in Spanish. Less frequent contact with different  language groups may suggest a different and less intensified solution.  If an LEP individual accesses a program or service on a daily basis, a  recipient has greater duties than if the same individual's program or  activity contact is unpredictable or infrequent. But even recipients  that serve LEP persons on an unpredictable or infrequent basis should  use this balancing analysis to determine what to do if an LEP  individual seeks services under the program in question. This plan need  not be intricate. It may be as simple as being prepared to use one of  the commercially-available telephonic interpretation services to obtain  immediate interpreter services. In applying this standard, recipients  should take care to consider whether appropriate outreach to LEP  persons could increase the frequency of contact with LEP language  groups.  (3) The Nature and Importance of the Program, Activity, or Service  Provided by the Program      The more important the activity, information, service, or program,  or the greater the possible consequences of the contact to the LEP  individuals, the more likely language services are needed. The  obligations to communicate with a person in need of emergency health,  fire or law enforcement services may differ, for example, from those to  provide information about museum hours, location, exhibits and  services. A recipient needs to determine whether denial or delay of  access to services or information could have serious or even life- threatening implications for the LEP individual. Decisions by a  Federal, State, or local entity to make an activity compulsory, such as  educational programs, the provision of a hearing or complaint process,  or the communication of Miranda rights, or other rights or warning  information, can serve as strong evidence of the program's importance.  (4) The Resources Available to the Recipient and Costs      A recipient's level of resources and the costs that would be  imposed on it may have an impact on the nature of the steps it should  take. Smaller recipients with more limited budgets are not expected to  provide the same level of language services as larger recipients with  larger budgets. In addition, ``reasonable steps'' may cease to be  reasonable where the costs imposed substantially exceed the benefits.     Resource and cost issues, however, can often be reduced by  technological advances; the sharing of language assistance materials  and services among and between recipients, advocacy groups, and Federal  grant agencies; and reasonable business practices. Where appropriate,  training bilingual staff to act as interpreters and translators,  information sharing through industry groups, telephonic and video  conferencing interpretation services, pooling resources and  standardizing documents to reduce translation needs, using qualified  translators and interpreters to ensure that documents need not be  ``fixed'' later and that inaccurate interpretations do not cause delay  or other costs, centralizing interpreter and translator services to  achieve economies of scale, or the formalized use of qualified  community volunteers, for example, may help reduce costs.\7\ Recipients  should  [[Page 43524]]  carefully explore the most cost-effective means of delivering competent  and accurate language services before limiting services due to resource  concerns. Large entities and those entities serving a significant  number or proportion of LEP persons should ensure that their resource  limitations are well-substantiated before using this factor as a reason  to limit language assistance. Such recipients may find it useful to be  able to articulate, through documentation or in some other reasonable  manner, their process for determining that language services would be  limited based on resources or costs. ---------------------------------------------------------------------------      \7\ Small recipients with limited resources may find that  entering into a bulk telephonic interpretation service contract will  prove cost effective. ---------------------------------------------------------------------------      This four-factor analysis necessarily implicates the ``mix'' of LEP  services required. Recipients have two main ways to provide language  services: Oral interpretation either in person or via telephone  interpretation service (hereinafter ``interpretation'') and written  translation (hereinafter ``translation''). Oral interpretation can  range from on-site interpreters for critical services provided to a  high volume of LEP persons to access through commercially-available  telephonic interpretation services. Written translation, likewise, can  range from translation of an entire document to translation of a short  description of the document. In some cases, language services should be  made available on an expedited basis while in others the LEP individual  may be referred to another office of the recipient for language  assistance.     The correct mix should be based on what is both necessary and  reasonable in light of the four-factor analysis. For instance, a  medical clinic in a largely Hispanic neighborhood may need immediate  oral interpreters available and should give serious consideration to  hiring some bilingual staff. In contrast, there may be circumstances  where the importance and nature of the activity and number or  proportion and frequency of contact with LEP persons may be low and the  costs and resources needed to provide language services may be high,  such as in the case of a voluntary tour of a city park and recreation  area, in which pre-arranged language services for the particular  service may not be necessary. Regardless of the type of language  service provided, quality and accuracy of those services can be  critical in order to avoid serious consequences to the LEP person and  to the recipient. Recipients have substantial flexibility in  determining the appropriate mix.  VI. Selecting Language Assistance Services      Recipients have two main ways to provide language services: Oral  and written language services. Quality and accuracy of the language  service is critical in order to avoid serious consequences to the LEP  person and to the recipient.  A. Oral Language Services (Interpretation)      Interpretation is the act of listening to something in one language  (source language) and orally translating it into another language  (target language). Where interpretation is needed and is reasonable,  recipients should consider some or all of the following options for  providing competent interpreters in a timely manner:     Competence of Interpreters. When providing oral assistance,  recipients should ensure competency of the language service provider,  no matter which of the strategies outlined below are used. Competency  requires more than self-identification as bilingual. Some bilingual  staff and community volunteers, for instance, may be able to  communicate effectively in a different language when communicating  information directly in that language, but not be competent to  interpret in and out of English. Likewise, they may not be able to do  written translations.     Competency to interpret, however, does not necessarily mean formal  certification as an interpreter, although certification is helpful.  When using interpreters, recipients should ensure that they:     Demonstrate proficiency in and ability to communicate information  accurately in both English and in the other language and identify and  employ the appropriate mode of interpreting (e.g., consecutive,  simultaneous, summarization, or sight translation);     Have knowledge in both languages of any specialized terms or  concepts peculiar to the entity's program or activity and of any  particularized vocabulary and phraseology used by the LEP person; \8\  and understand and follow confidentiality and impartiality rules to the  same extent the recipient employee for whom they are interpreting and/ or to the extent their position requires. ---------------------------------------------------------------------------      \8\ Many languages have ``regionalisms,'' or differences in  usage. For instance, a word that may be understood to mean something  in Spanish for someone from Cuba may not be so understood by someone  from Mexico. In addition, because there may be languages, which do  not have an appropriate direct interpretation of, some technical  terms and the interpreter should be so aware and be able to provide  the most appropriate interpretation. The interpreter should likely  make the recipient aware of the issue and the interpreter and  recipient can then work to develop a consistent and appropriate set  of descriptions of these terms in that language that can be used  again, when appropriate. ---------------------------------------------------------------------------      Understand and adhere to their role as interpreters without  deviating into a role as counselor, legal/medical advisor, or other  roles (particularly in court, administrative hearings, law enforcement  or medical services contexts).     Some recipients, such as courts, may have additional self-imposed  requirements for interpreters. Where individual rights depend on  precise, complete, and accurate interpretation or translations,  particularly in the contexts of courtrooms and custodial or other  police interrogations, the use of certified interpreters is strongly  encouraged.\9\ Where such proceedings are lengthy, the interpreter will  likely need breaks and team interpreting may be appropriate to ensure  accuracy and to prevent errors caused by mental fatigue of  interpreters. ---------------------------------------------------------------------------      \9\ For those languages in which no formal accreditation or  certification currently exists, recipients should consider a formal  process for establishing the credentials of the interpreter. ---------------------------------------------------------------------------      While quality and accuracy of language services is critical, the  quality and accuracy of language services is nonetheless part of the  appropriate mix of LEP services required. The quality and accuracy of  language services in a hospital emergency room, for example, must be  extraordinarily high, while the quality and accuracy of language  services in a bicycle safety class need not meet the same exacting  standards.     Finally, when interpretation is needed and is reasonable, it should  be provided in a timely manner. To be meaningfully effective, language  assistance should be timely. While there is no single definition for  ``timely'' applicable to all types of interactions at all times by all  types of recipients, one clear guide is that the language assistance  should be provided at a time and place that avoids the effective denial  of the service, benefit, or right at issue or the imposition of an  undue burden on or delay in important rights, benefits, or services to  the LEP person. For example, when the timeliness of services is  important, such as with certain activities of GSA recipients providing  law enforcement, health, and safety services, and when important legal  rights or the LEP individual's health or safety is at issue, a  recipient would likely not be providing meaningful access if it had one  bilingual staffer available one day a week to provide the service. Such  conduct would likely result in delays for LEP persons that  [[Page 43525]]  would be significantly greater than those for English proficient  persons. Conversely, where access to or exercise of a service, benefit,  or right is not effectively precluded by a reasonable delay, language  assistance can likely be delayed for a reasonable period.     Hiring Bilingual Staff. When particular languages are encountered  often, hiring bilingual staff offers one of the best, and often most  economical, options. Recipients can, for example, fill public contact  positions, such as 911 operators, police officers, guards, medical/ emergency personnel, or program directors, with staff who are bilingual  and competent to communicate directly with LEP persons in their  language. If bilingual staff is also used to interpret between English  speakers and LEP persons, or to orally interpret written documents from  English into another language, they should be competent in the skill of  interpreting. Being bilingual does not necessarily mean that a person  has the ability to interpret. In addition, there may be instances when  the role of the employee may conflict with the role of an interpreter  (for instance, a staff witness in a school disciplinary hearing may not  be appropriate to serve as an interpreter at the same time, even if he  or she were skilled at interpreting). Effective management strategies,  including any appropriate adjustments in assignments and protocols for  using bilingual staff, can ensure that bilingual staff is fully and  appropriately utilized. When bilingual staff cannot meet all of the  language service obligations of the recipient, the recipient should  turn to other options.     Hiring Staff Interpreters. Hiring interpreters may be most helpful  where there is a frequent need for interpreting services in one or more  languages. Depending on the facts, sometimes it may be necessary and  reasonable to provide on-site interpreters to provide accurate and  meaningful communication with an LEP person.     Contracting for Interpreters. Contract interpreters may be a cost- effective option when there is no regular need for a particular  language skill. In addition to commercial and other private providers,  many community-based organizations and mutual assistance associations  provide interpretation services for particular languages. Contracting  with and providing training regarding the recipient's programs and  processes to these organizations can be a cost-effective option for  providing language services to LEP persons from those language groups.     Using Telephone Interpreter Lines. Telephone interpreter service  lines often offer speedy interpreting assistance in many different  languages. They may be particularly appropriate where the mode of  communicating with an English proficient person would also be over the  phone. Although telephonic interpretation services are useful in many  situations, it is important to ensure that, when using such services,  the interpreters used are competent to interpret any technical or legal  terms specific to a particular program that may be important parts of  the conversation. Nuances in language and non-verbal communication can  often assist an interpreter and cannot be recognized over the phone.  Video teleconferencing may sometimes help to resolve this issue where  necessary. In addition, where documents are being discussed, it is  important to give telephonic interpreters adequate opportunity to  review the document prior to the discussion and any logistical problems  should be addressed.     Using Community Volunteers. In addition to consideration of  bilingual staff, staff interpreters, or contract interpreters (either  in-person or by telephone) as options to ensure meaningful access by  LEP persons, use of recipient-coordinated community volunteers, working  with, for instance, community-based organizations may provide a cost- effective supplemental language assistance strategy under appropriate  circumstances. They may be particularly useful in providing language  access for a recipient's less critical programs and activities. To the  extent the recipient relies on community volunteers, it is often best  to use volunteers who are trained in the information or services of the  program and can communicate directly with LEP persons in their  language. Just as with all interpreters, community volunteers used to  interpret between English speakers and LEP persons, or to orally  translate documents, should be competent in the skill of interpreting  and knowledgeable about applicable confidentiality and impartiality  rules. Recipients should consider formal arrangements with community- based organizations that provide volunteers to address these concerns  and to help ensure that services are available more regularly.     Use of Family Members, or Friends or Other Volunteers as  Interpreters. Although recipients should not plan to rely on an LEP  person's family members, friends, or other informal interpreters to  provide meaningful access to important programs and activities, where  LEP persons so desire, they should be permitted to use, at their own  expense, an interpreter of their own choosing (whether a professional  interpreter, family member, friend, other volunteer) in place of or as  a supplement to the free language services expressly offered by the  recipient. LEP persons may feel more comfortable when a trusted family  member, friend, or other individual acts as an interpreter. In  addition, in exigent circumstances that are not reasonably foreseeable,  temporary use of interpreters not provided by the recipient may be  necessary. However, with proper planning and implementation, recipients  should be able to avoid most such situations.     Recipients, however, should take special care to ensure that  family, legal guardians, caretakers, and other informal interpreters  are appropriate in light of the circumstances and subject matter of the  program, service or activity, including protection of the recipient's  own administrative or enforcement interest in accurate interpretation.  In many circumstances, family members (especially children), friends,  other individuals are not competent to provide quality and accurate  interpretations. Issues of confidentiality, privacy, or conflict of  interest may also arise. LEP individuals may feel uncomfortable  revealing or describing sensitive, confidential, or potentially  embarrassing or sensitive information, such as medical history/ condition, previous sexual or violent assault history, family history,  or financial information to a family member, friend, or member of the  local community.\10\ ---------------------------------------------------------------------------      \10\ Recipients should take these concerns into consideration  when determining whether the LEP individual has made a knowing and  voluntary choice for the use of a family, legal guardian, caretaker  or other informal interpreter. ---------------------------------------------------------------------------      In addition, such informal interpreters may have a personal  connection to the LEP person or an undisclosed conflict of interest,  such as the desire to protect themselves or another individual. For  these reasons, when oral language services are necessary, recipients  should generally offer competent interpreter services free of cost to  the LEP person. For GSA recipient programs and activities, this is  particularly true in situations in which health, safety, or access to  important benefits and services are at stake, or when credibility and  accuracy are important to protect an individual's rights and access to  important services.     An example of such a case is when police officers respond to a  domestic violence call. In such a case, use of family members or  neighbors to interpret for the alleged victim, perpetrator, or  witnesses may raise  [[Page 43526]]  serious issues of competency, confidentiality, and conflict of interest  and is thus inappropriate. While issues of competency, confidentiality,  and conflict of interest in the use of family members (especially  children), friends, other inmates or other detainees often make their  use inappropriate, the use of these individuals as interpreters may be  an appropriate option where proper application of the four factors  would lead to a conclusion that recipient-provided services are not  necessary. An example of this is a voluntary educational tour of a  public building. There, the importance and nature of the activity may  be relatively low and unlikely to implicate issues of confidentiality,  conflict of interest, or the need for accuracy. In addition, the  resources needed and costs of providing language services may be high.  In such a setting, an LEP person's use of family, friends, or others  may be appropriate.     If the LEP person voluntarily chooses to provide his or her own  interpreter, a recipient should consider whether a record of that  choice and of the recipient's offer of assistance is appropriate. Where  precise, complete, and accurate interpretations or translations of  information and/or testimony are critical for medical, safety, law  enforcement, adjudicatory, or legal reasons, or where the competency of  the LEP person's interpreter is not established, a recipient might  decide to provide its own, independent interpreter, even if an LEP  person wants to use his or her own interpreter as well. Extra caution  should be exercised when the LEP person chooses to use a minor as the  interpreter. While the LEP person's decision should be respected, there  may be additional issues of competency, confidentiality, or conflict of  interest when the choice involves using children as interpreters. The  recipient should take care to ensure that the LEP person's choice is  voluntary, that the LEP person is aware of the possible problems if the  preferred interpreter is a minor child, and that the LEP person knows  that a competent interpreter could be provided by the recipient at no  cost.  B. Written Language Services (Translation)      Translation is the replacement of a written text from one language  (source language) into an equivalent written text in another language  (target language).     What Documents Should be Translated? After applying the four-factor  analysis, a recipient may determine that an effective LEP plan for its  particular program or activity includes the translation of vital  written materials into the language of each frequently-encountered LEP  group eligible to be served and/or likely to be affected by the  recipient's program.     Such written materials could include, for example:  --Consent and complaint forms; --Intake forms with the potential for important consequences; --Written notices of rights and responsibilities, denial, loss, or  decreases in benefits or services, parole, and other hearings; --Notices of disciplinary action; --Notices advising LEP persons of free language assistance; --Written tests that do not assess English language competency, but  test competency for a particular license, job, or skill for which  Knowing English is not required; and --Applications to participate in a recipient's program or activity or  to receive recipient benefits or services.      Whether or not a document (or the information it solicits) is  ``vital'' may depend upon the importance of the program, information,  encounter, or service involved, and the consequence to the LEP person  if the information in question is not provided accurately or in a  timely manner. For instance, applications for a fishing class taught at  the county lake should not generally be considered vital, whereas  applications for drug and alcohol counseling/treatment in a homeless  shelter or in prison could be considered vital. Where appropriate,  recipients are encouraged to create a plan for consistently  determining, over time and across its various activities, what  documents are ``vital'' to the meaningful access of the LEP populations  they serve.     Classifying a document as vital or non-vital is sometimes  difficult, especially in the case of outreach materials like brochures  or other information on rights and services. Awareness of rights or  services is an important part of ``meaningful access.'' Lack of  awareness that a particular program, right, or service exists may  effectively deny LEP individuals meaningful access. Thus, where a  recipient is engaged in community outreach activities in furtherance of  its activities, it should regularly assess the needs of the populations  frequently encountered or affected by the program or activity to  determine whether certain critical outreach materials should be  translated. Community organizations may be helpful in determining what  outreach materials may be most helpful to translate. In addition, the  recipient should consider whether translations of outreach material may  be made more effective when done in tandem with other outreach methods,  including utilizing the ethnic media, schools, religious, and community  organizations to spread a message.     Sometimes a document includes both vital and non-vital information.  This may be the case when the document is very large. It may also be  the case when the title and a phone number for obtaining more  information on the contents of the document in frequently-encountered  languages other than English is critical, but the document is sent out  to the general public and cannot reasonably be translated into many  languages. Thus, vital information may include, for instance, the  provision of information in appropriate languages other than English  regarding where a LEP person might obtain an interpretation or  translation of the document.     Into What Languages Should Documents be Translated? The languages  spoken by the LEP individuals with whom the recipient has contact  determine the languages into which vital documents should be  translated. A distinction should be made, however, between languages  that are frequently encountered by a recipient and less commonly- encountered languages. Many recipients serve communities in large  cities or across the country. They regularly serve LEP persons who  speak dozens and sometimes over 100 different languages. To translate  all written materials into all of those languages is unrealistic.  Although recent technological advances have made it easier for  recipients to store and share translated documents, such an undertaking  would incur substantial costs and require substantial resources.  Nevertheless, well-substantiated claims of lack of resources to  translate all vital documents into dozens of languages do not  necessarily relieve the recipient of the obligation to translate those  documents into at least several of the more frequently-encountered  languages and to set benchmarks for continued translations into the  remaining languages over time. As a result, the extent of the  recipient's obligation to provide written translations of documents  should be determined by the recipient on a case-by-case basis, looking  at the totality of the circumstances in light of the four-factor  analysis. Because translation is a one-time expense, consideration  should be given to whether the upfront cost of translating a document  (as opposed to oral interpretation) should be amortized over the likely  lifespan of the document when applying this four-factor analysis.  [[Page 43527]]      Safe Harbor. Many recipients would like to ensure with greater  certainty that they comply with their obligations to provide written  translations in languages other than English. Paragraphs (a) and (b)  outline the circumstances that can provide a ``safe harbor'' for  recipients regarding the requirements for translation of written  materials. A ``safe harbor'' means that if a recipient provides written  translations under these circumstances, such action will be considered  strong evidence of compliance with the recipient's written-translation  obligations.     The failure to provide written translations under the circumstances  outlined in paragraphs (a) and (b) does not mean there is non- compliance. Rather, they provide a common starting point for recipients  to consider whether and at what point the importance of the service,  benefit, or activity involved; the nature of the information sought;  and the number or proportion of LEP persons served call for written  translations of commonly-used forms into frequently-encountered  languages other than English. Thus, these paragraphs merely provide a  guide for recipients that would like greater certainty of compliance  than can be provided by a fact-intensive, four-factor analysis.      Example: Even if the safe harbors are not used, if written  translation of a certain document(s) would be so burdensome as to  defeat the legitimate objectives of its program, the translation of  the written materials is not necessary. Other ways of providing  meaningful access, such as effective oral interpretation of certain  vital documents, might be acceptable under such circumstances.      Safe Harbor. The following actions will be considered strong  evidence of compliance with the recipient's written-translation  obligations:     The GSA recipient provides written translations of vital documents  for each eligible LEP language group that constitutes five percent or  1,000, whichever is less, of the population of persons eligible to be  served or likely to be affected or encountered. Translation of other  documents, if needed, can be provided orally; or     If there are fewer than 50 persons in a language group that reaches  the five percent trigger in (a), the recipient does not translate vital  written materials but provides written notice in the primary language  of the LEP language group of the right to receive competent oral  interpretation of those written materials, free of cost.     These safe harbor provisions apply to the translation of written  documents only. They do not affect the requirement to provide  meaningful access to LEP individuals through competent oral  interpreters where oral language services are needed and are  reasonable. For example, schools should, where appropriate, ensure that  school rules have been explained to LEP students, at orientation, for  instance, prior to taking disciplinary action against them.     Competence of Translators. As with oral interpreters, translators  of written documents should be competent. Many of the same  considerations apply. However, the skill of translating is very  different from the skill of interpreting, and a person who is a  competent interpreter may or may not be competent to translate.     Particularly where legal or other vital documents are being  translated, competence can often be achieved by use of certified  translators. Certification or accreditation may not always be possible  or necessary.\11\ Competence can often be ensured by having a second,  independent translator ``check'' the work of the primary translator.  Alternatively, one translator can translate the document, and a second,  independent translator could translate it back into English to check  that the appropriate meaning has been conveyed. This is called ``back  translation.'' ---------------------------------------------------------------------------      \11\ For those languages in which no formal accreditation  currently exists, a particular level of membership in a professional  translation association can provide some indicator of  professionalism. ---------------------------------------------------------------------------      Translators should understand the expected reading level of the  audience and, where appropriate, have fundamental knowledge about the  target language group's vocabulary and phraseology. Sometimes direct  translation of materials results in a translation that is written at a  much more difficult level than the English language version or has no  relevant equivalent meaning.\12\ Community organizations may be able to  help consider whether a document is written at a good level for the  audience. Likewise, consistency in the words and phrases used to  translate terms of art, legal, or other technical concepts helps avoid  confusion by LEP individuals and may reduce costs. Creating or using  already-created glossaries of commonly-used terms may be useful for LEP  persons and translators and cost effective for the recipient. Providing  translators with examples of previous accurate translations of similar  material by the recipient, other recipients, or Federal agencies may be  helpful. ---------------------------------------------------------------------------      \12\ For instance, there may be languages, which do not have an  appropriate direct translation of some legal or technical terms, and  the translator should be able to provide an appropriate translation.  The translator should likely also make the recipient aware of this.  Recipients can then work with translators to develop a consistent  and appropriate set of descriptions of these terms in that language  that can be used again, when appropriate. Recipients will find it  more effective and less costly if they try to maintain consistency  in the words and phrases used to translate terms of art and legal or  other technical concepts. Creating or using already created  glossaries of commonly used terms may be useful for LEP persons and  translators and cost effective for the recipient. Providing  translators with examples of previous translations of similar  material by the recipient, other recipients, or federal agencies may  be helpful. ---------------------------------------------------------------------------      While quality and accuracy of translation services is critical, the  quality and accuracy of translation services is nonetheless part of the  appropriate mix of LEP services required. For instance, documents that  are simple and have no legal or other consequence for LEP persons who  rely on them may use translators that are less skilled than important  documents with legal or other information upon which reliance has  important consequences (including, e.g., information or documents of  GSA recipients regarding certain law enforcement, health and safety  service, or certain legal rights). The permanent nature of written  translations, however, imposes additional responsibility on the  recipient to ensure that the quality and accuracy permit meaningful  access by LEP persons.  VII. Elements of Effective Plan on Language Assistance for LEP Persons      After completing the four-factor analysis and deciding what  language assistance services are appropriate, a recipient should  develop an implementation plan to address the identified needs of the  LEP populations they serve. Recipients have considerable flexibility in  developing this plan. The development and maintenance of a  periodically-updated written plan on language assistance for LEP  persons (``LEP plan'') for use by recipient employees serving the  public will likely be the most appropriate and cost-effective means of  documenting compliance and providing a framework for the provision of  timely and reasonable language assistance. Moreover, such written plans  would likely provide additional benefits to a recipient's managers in  the areas of training, administration, planning, and budgeting. These  benefits should lead most recipients to document in a written LEP plan  their language assistance services, and how staff and LEP persons can  access those services. Despite these benefits, certain GSA recipients,  such as recipients serving very few LEP persons and recipients with  very limited resources, may choose  [[Page 43528]]  not to develop a written LEP plan. However, the absence of a written  LEP plan does not obviate the underlying obligation to ensure  meaningful access by LEP persons to a recipient's program or  activities. Accordingly, in the event that a recipient elects not to  develop a written plan, it should consider alternative ways to  articulate in some other reasonable manner a plan for providing  meaningful access. Entities having significant contact with LEP  persons, such as schools, religious organizations, community groups,  and groups working with new immigrants can be very helpful in providing  important input into this planning process from the beginning. The  following five steps may be helpful in designing an LEP plan and are  typically part of effective implementation plans.     (1) Identifying LEP Individuals Who Need Language Assistance. The  first two factors in the four-factor analysis require an assessment of  the number or proportion of LEP individuals eligible to be served or  encountered and the frequency of encounters. This requires recipients  to identify LEP persons with whom it has contact.     One way to determine the language of communication is to use  language identification cards (or ``I speak cards''), which invite LEP  persons to identify their language needs to staff. Such cards, for  instance, might say, ``I speak Spanish'' in both Spanish and English,  ``I speak Vietnamese'' in both English and Vietnamese, etc. To reduce  costs of compliance, the Federal government has made a set of these  cards available on the Internet. The Census Bureau ``I speak card'' can  be found and downloaded at http://www.lep.gov. When records are  normally kept of past interactions with members of the public, the  language of the LEP person can be included as part of the record. In  addition to helping employees identify the language of LEP persons they  encounter, this process will help in future applications of the first  two factors of the four-factor analysis. In addition, posting notices  in commonly encountered languages notifying LEP persons of language  assistance will encourage them to self-identify.     (2) Language Assistance Measures. An effective LEP plan would  likely include information about the ways in which language assistance  will be provided. For instance, recipients may want to include  information on at least the following:  --Types of language services available. --How staff can obtain those services. --How to respond to LEP callers. --How to respond to written communications from LEP persons. --How to respond to LEP individuals who have in-person contact with  recipient staff. --How to ensure competency of interpreters and translation services.      (3) Training Staff. Staff should know their obligations to provide  meaningful access to information and services for LEP persons. An  effective LEP plan would likely include training to ensure that:  --Staff knows about LEP policies and procedures. --Staff having contact with the public (or those in a recipient's care)  are trained to work effectively with in-person and telephone  interpreters.      Recipients may want to include this training as part of the  orientation for new employees. It is important to ensure that all  employees in public contact positions (or having contact with those in  a recipient's care) are properly trained. Recipients have flexibility  in deciding the manner in which the training is provided. The more  frequent the contact with LEP persons, the greater the need will be for  in-depth training. Staff with little or no contact with LEP persons may  only have to be aware of an LEP plan. However, management staff, even  if they do not interact regularly with LEP persons, should be fully  aware of and understand the plan so they can reinforce its importance  and ensure its implementation by staff.     (4) Providing Notice to LEP Persons. Once an agency has decided,  based on the four factors, that it will provide language services, it  is important for the recipient to let LEP persons know that those  services are available and that they are free of charge. Recipients  should provide this notice in a language LEP persons will understand.  Examples of notification that recipients should consider include:     (a) Posting signs in intake areas and other entry points. When  language assistance is needed to ensure meaningful access to  information and services, it is important to provide notice in  appropriate languages in intake areas or initial points of contact so  that LEP persons can learn how to access those language services. This  is particularly true in areas with high volumes of LEP persons seeking  access to certain health, safety, or law enforcement services or  activities run by GSA recipients. For instance, signs in intake offices  could state that free language assistance is available. The signs  should be translated into the most common languages encountered. They  should explain how to get the language help.\13\ ---------------------------------------------------------------------------      \13\ The Social Security Administration has made such signs  available at http:/www.ssa.gov/multilanguage/lanlist.htm. These  signs could, for example, be modified for recipient use. ---------------------------------------------------------------------------      (b) Stating in outreach documents that language services are  available from the agency. Announcements could be in, for instance,  brochures, booklets, and in outreach and recruitment information. These  statements should be translated into the most common languages and  could be ``tagged'' onto the front of common documents.     (c) Working with community-based organizations and other  stakeholders to inform LEP individuals of the recipients' services,  including the availability of language assistance services.     (d) Using a telephone voice mail menu. The menu could be in the  most common languages encountered. It should provide information about  available language assistance services and how to get them.     (e) Including notices in local newspapers in languages other than  English.     (f) Providing notices on non-English-language radio and television  stations about the available language assistance services and how to  get them.     (g) Presentations and/or notices at schools and religious  organizations.     (5) Monitoring and Updating the LEP Plan. Recipients should, where  appropriate, have a process for determining, on an ongoing basis,  whether new documents, programs, services, and activities need to be  made accessible for LEP individuals, and they may want to provide  notice of any changes in services to the LEP public and to employees.  In addition, recipients should consider whether changes in  demographics, types of services, or other needs require annual  reevaluation of their LEP plan. Less frequent reevaluation may be more  appropriate where demographics, services, and needs are more static.  One good way to evaluate the LEP plan is to seek feedback from the  community.     In their reviews, recipients may want to consider assessing changes  in:  --Current LEP populations in service area or population affected or  encountered. --Frequency of encounters with LEP language groups. --Nature and importance of activities to LEP persons. --Availability of resources, including technological advances and  sources of additional resources, and the costs imposed.  [[Page 43529]]  --Whether existing assistance is meeting the needs of LEP persons. --Whether staff knows and understands the LEP plan and how to implement  it. --Whether identified sources for assistance are still available and  viable.      In addition to these five elements, effective plans set clear  goals, management accountability, and opportunities for community input  and planning throughout the process.  VIII. Voluntary Compliance Effort      The goal for Title VI and Title VI regulatory enforcement is to  achieve voluntary compliance. The requirement to provide meaningful  access to LEP persons is enforced and implemented by GSA through the  procedures identified in the Title VI regulations. These procedures  include complaint investigations, compliance reviews, efforts to secure  voluntary compliance, and technical assistance.     The Title VI regulations provide that GSA will investigate whenever  it receives a complaint, report, or other information that alleges or  indicates possible noncompliance with Title VI or its regulations. If  the investigation results in a finding of compliance, GSA will inform  the recipient in writing of this determination, including the basis for  the determination. GSA is committed to using voluntary compliance  (informal resolution) to resolve findings of noncompliance. However, if  a case is fully investigated and results in a finding of noncompliance,  GSA must inform the recipient of the noncompliance through a Letter of  Findings that sets out the areas of noncompliance and the steps that  must be taken to correct the noncompliance. It must attempt to secure  voluntary compliance through informal means. If the matter cannot be  resolved informally, GSA must secure compliance through the termination  of Federal assistance after the GSA recipient has been given an  opportunity for an administrative hearing and/or by referring the  matter to the DOJ to seek injunctive relief or pursue other enforcement  proceedings. GSA engages in voluntary compliance efforts and provides  technical assistance to recipients at all stages of an investigation.  During these efforts, GSA proposes reasonable timetables for achieving  compliance and consults with and assists recipients in exploring cost- effective ways of coming into compliance. In determining a recipient's  compliance with the Title VI regulations, GSA's primary concern is to  ensure that the recipient's policies and procedures provide meaningful  access for LEP persons to the recipient's programs and activities.     While all recipients must work toward building systems that will  ensure access for LEP individuals, GSA acknowledges that the  implementation of a comprehensive system to serve LEP individuals is a  process and that a system will evolve over time as it is implemented  and periodically reevaluated. As recipients take reasonable steps to  provide meaningful access to Federally assisted programs and activities  for LEP persons, GSA will look favorably on intermediate steps  recipients take that are consistent with this Guidance, and that, as  part of a broader implementation plan or schedule, move their service  delivery system toward providing full access to LEP persons. This does  not excuse noncompliance but instead recognizes that full compliance in  all areas of a recipient's activities and for all potential language  minority groups may reasonably require a series of implementing actions  over a period of time. However, in developing any phased implementation  schedule, GSA recipients should ensure that the provision of  appropriate assistance for significant LEP populations or with respect  to activities having a significant impact on the health, safety, legal  rights, or livelihood of beneficiaries is addressed first. Recipients  are encouraged to document their efforts to provide LEP persons with  meaningful access to Federally assisted programs and activities.  IX. Application to Specific Types of Recipients      GSA's recipients are in excess of 66,000 and represent State,  county, city and local government agencies e.g., transportation  departments, parks/recreation departments, education departments, labor  departments, health departments, correctional facilities/police  departments, emergency 9-1-1, local fire departments (to include  volunteer fire departments; housing authorities; schools (public and  private); hospitals, health clinics, medical centers; day care centers,  to include Head Start; homeless shelters, domestic abuse shelters, food  banks, and other eligible non-profits.     The requirements of the Title VI regulations, as clarified by this  guidance, supplement, but do not supplant, constitutional and other  statutory or regulatory provisions that may require LEP services. Thus,  a proper application of the four-factor analysis and compliance with  the Title VI regulations does not replace constitutional or other  statutory protections mandating information, warnings and notices in  languages other than English, such as in the criminal justice context.  Rather, this guidance clarifies the Title VI regulatory obligation to  address, in appropriate circumstances and in a reasonable manner, the  language assistance needs of LEP individuals beyond those required by  the Constitution or statutes and regulations other than the Title VI  regulations.     The following examples are provided to assist recipients in  determining their responsibilities with regard to LEP individuals:     (1) A county has very few residents who are LEP. However, many  Vietnamese-speaking LEP motorists go through a major freeway running  through the county, which connects two areas with high populations of  Vietnamese speaking LEP individuals. As a result, the Traffic Division  of the county court processes a large number of LEP persons, but it has  taken no steps to train staff or provide forms or other language access  in that Division because of the small number of LEP individuals in the  county. The Division should assess the number and proportion of LEP  individuals processed by the Division and the frequency of such  contact. With those numbers high, the Traffic Division may find that it  needs to provide key forms or instructions in Vietnamese. It may also  find, from talking with community groups, that many older Vietnamese  LEP individuals do not read Vietnamese well, and that it should provide  oral language services as well. The court may already have Vietnamese- speaking staff competent in interpreting in a different section of the  court; it may decide to hire a Vietnamese-speaking employee who is  competent in the skill of interpreting; or it may decide that a  telephonic interpretation service suffices.     (2) A shelter for victims of domestic violence is operated by a  recipient of GSA funds and located in an area where 15 percent of the  women in the service area speak Spanish and are LEP. Seven percent of  the women in the service area speak various Chinese dialects and are  LEP. The shelter uses community volunteers to help translate vital  outreach materials into Chinese (which is one written language despite  many dialects) and Spanish. The shelter hotline has a menu providing  key information, such as location, in English, Spanish, and two of the  most common Chinese dialects. Calls for immediate assistance are  handled by the bilingual staff. The shelter has one counselor and  several volunteers fluent  [[Page 43530]]  in Spanish and English. Some volunteers are fluent in different Chinese  dialects and in English. The shelter works with community groups to  access interpreters in the several Chinese dialects that they  encounter. Shelter staff trains the community volunteers in the  sensitivities of domestic violence intake and counseling. Volunteers  sign confidentiality agreements. The shelter is looking for a grant to  increase its language capabilities despite its tiny budget. These  actions constitute strong evidence of compliance.     (3) A small childcare center has three LEP parents (two who speak  Mandarin and one speaks Spanish) whose English-speaking children attend  its childcare center on a regular basis. The center has a staff of six,  and has limited financial resources to afford to hire bilingual staff,  contract with a professional interpreter service, or translate written  documents. To accommodate the language needs of their LEP parents, the  Center made arrangements with a Chinese and a Hispanic community  organization for trained and competent volunteer interpreters in the  appropriate language, and with a telephone interpreter language line,  to interpret during parent meetings and to orally translate written  documents. There have been no client complaints of inordinate delays or  other service related problems with respect to LEP clients. The  assistance that the childcare center is providing will probably be  considered appropriate, given the center's resources, the size of  staff, and the size of the LEP population. Thus, OCR would consider  this strong evidence of compliance.     (4) A county social service program that administers the State's  welfare and health programs has a large budget. Their service area  encompasses an eligible service population of 500,000. Thirty-five  hundred individuals in the serviced population are LEP and speak a  Chinese dialect; 4,000 individuals in the serviced population are LEP  and speak Spanish; 2000 individuals in the serviced population are LEP  and speak Vietnamese; and 400 individuals are LEP and speak Vietnamese.  The county has translated vital documents, i.e., applications and  program brochures, into Chinese, Spanish, and Vietnamese. Therefore,  with regard to translation of vital documents, OCR would consider this  strong evidence of compliance, consistent with the safe harbor  provision in GSA's guidance. Additionally, the county should adequately  address and provide needed interpretation services to their LEP clients  (i.e., hiring bilingual staff or contracting with a language service  provider).     Permanent Versus Seasonal Populations. In many communities,  resident populations change over time or season. For example, in some  resort communities, populations swell during peak vacation periods,  many times exceeding the number of permanent residents of the  jurisdiction. In other communities, primarily agricultural areas,  transient populations of workers may require increased services during  the relevant harvest season. This dynamic demographic ebb and flow can  also dramatically change the size and nature of the LEP community  likely to come into contact with the recipient. Thus, recipients should  not limit their analysis to numbers and percentages of permanent  residents. In assessing factor one--the number or proportion of LEP  individuals--emergency service providers should consider any  significant but temporary changes in a jurisdiction's demographics.  [FR Doc. 03-18658 Filed 7-22-03; 8:45 am]  BILLING CODE 6820-34-P
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Updated August 6, 2015

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