Federal Coordination And Compliance Section

 [Federal Register: June 10, 2003 (Volume 68, Number 111)] [Notices]                [Page 34698-34708] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr10jn03-119]                            [[Page 34698]]  ======================================================================= -----------------------------------------------------------------------  DEPARTMENT OF VETERANS AFFAIRS    Guidance to Federal Financial Assistance Recipients: Providing  Meaningful Access to Individuals Who Have Limited English Proficiency  in Compliance With Title VI of the Civil Rights Act of 1964  AGENCY: Department of Veterans Affairs.  ACTION: Notice and request for comments.  -----------------------------------------------------------------------  SUMMARY: In accordance with Executive Order 13166, Improving Access to  Service for Persons with Limited English Proficiency (LEP), this notice  requests comments on the Department of Veterans Affairs (VA) draft  guidance on improving access for persons with limited English  proficiency to VA assisted programs and activities. Executive Order  13166, requires each Federal agency that awards Federal financial  assistance to publish in the Federal Register a notice containing  Departmental guidance that assists recipients in complying with  obligations under Title VI of the Civil Rights Act of 1964 and Title VI  regulations to ensure meaningful access to Federally assisted programs  and activities for LEP persons.  DATES: Comments must be received on or before July 10, 2003  ADDRESSES: Mail or hand-deliver written comments to: Director,  Regulations Management (00REG1), Department of Veterans Affairs, 810  Vermont Ave., NW., Room 1068, Washington, DC 20420; or fax comments to  (202) 273-9026; or e-mail comments to OGCRegulations@mail.va.gov.  Comments should indicate that they are submitted in response to ``LEP  Guidance''. All comments received will be available for public  inspection in the Office of Regulation Policy and Management, Room  1158, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday  (except holidays). Please call 202 273-9515 for an appointment.  FOR FURTHER INFORMATION CONTACT: Tyrone Eddins, Office of Resolution  Management (08), at (202) 501-2801; or Royce Smith, Office of General  Counsel (024), at (202) 273-6374, Department of Veterans Affairs, 810  Vermont Avenue, NW., Washington, DC 20420.  SUPPLEMENTARY INFORMATION: The purpose of Executive Order 13166 is to  eliminate, under Title VI, to the maximum extent possible, limited  English proficiency (LEP) as an artificial barrier to full and  meaningful participation by beneficiaries in all Federally assisted and  Federally conducted programs and activities. The purpose of this policy  is to further clarify the responsibilities of recipients of Federal  financial assistance from VA, and assist them in fulfilling their  responsibilities to LEP persons, pursuant to Title VI and Title VI  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, activities, benefits, services, and information those  recipients provide, free of charge.     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 will provide 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 the 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 proposed 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 June 18, 2002, 67 FR 41455.     Because this Guidance must adhere to the Federal-wide compliance  standards and framework detailed in the model DOJ LEP Guidance issued  on June 18, 2002, VA specifically solicits comments on the nature,  scope and appropriateness of the VA 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 VA.     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 below.      Approved: May 28, 2003. Anthony J. Principi, Secretary of Veterans Affairs.  Guidance on Executive Order 13166, Limited English Proficiency (LEP)  Title VI Prohibition Against National Origin Discrimination In  Federally Assisted Programs  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 (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  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\ VA recognizes that many recipients had language assistance  programs in place prior to the issuance of Executive Order 13166.  This 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  population it encounters, and its prior experience in providing  language services in the community it serves.  ---------------------------------------------------------------------------  [[Page 34699]]      This policy guidance clarifies responsibilities, under existing  law, of recipients of Federal financial assistance from the Department  of Veterans Affairs (VA) to provide meaningful access to LEP persons.  The purpose is to assist recipients in fulfilling their  responsibilities to provide meaningful access to LEP persons under  existing law. 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. 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 VA will use in evaluating whether recipients are in compliance  with Title VI and Title VI regulations. ---------------------------------------------------------------------------      \2\ This 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 provide meaningful access to the benefits, services,  information, and other important portions of their programs and  activities for individuals who are limited English proficient. ---------------------------------------------------------------------------      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, the VA, in conjunction with the Department of  Justice (DOJ), plans to continue to provide assistance and guidance in  this important area. In addition, the VA plans to work with DOJ,  recipients, and LEP persons to identify and share model plans, examples  of best practices, and cost-saving approaches and 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.     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. The Department of Justice and the VA 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.     VA is comprised of three distinct benefits administrations:  Veterans Health Administration (VHA), Veterans Benefits Administration  (VBA) and National Cemetery Administration (NCA). Each of these  administrations has programs that provide Federal financial assistance  to recipients. Each has existing Title VI program responsibilities that  are administered independent of each other.     VHA administers several programs and activities that receive  Federal financial assistance from the VA. With more than 163 VA medical  centers nationwide, VHA manages one of the largest health care systems  in the United States. VA medical centers within a Veterans Integrated  Service Network (VISN) work together to provide efficient, accessible  health care to veterans in their areas. VHA also conducts research and  education and provides emergency medical preparedness.     VBA is responsible for ensuring compliance in proprietary, non- college educational institutions approved to train veterans and/or  their beneficiaries. VBA also provides benefits and services to  veterans and their beneficiaries through more than 50 VA regional  offices. Some of the benefits and services provided by VBA include  compensation and pension, education, loan guaranty, and insurance.     NCA provides Federal assistance to States to establish, expand, or  improve state owned or established veterans cemeteries. The State  Cemetery Grants Program (SCGP) provides these services to eligible  state veterans cemeteries. NCA is responsible for providing burial  benefits to veterans and eligible dependents. The delivery of these  benefits involves operating 120 national cemeteries in the United  States and Puerto Rico, providing headstones and grave markers  worldwide, administering the State Cemetery Grants program that  complements the national cemeteries, and administering the Presidential  Memorial Certificate Program, which provides certificates bearing the  President's signature to the next of kin of honorably discharged,  deceased veterans.  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 grounds 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.     VA regulations implementing Title VI, provide in 38 CFR at part  18.3(b) that     (1) A recipient under any program to which this part applies may  not, directly or through contractual or other arrangements, on grounds  of race, color, or national origin:     (i) Deny an individual any service, financial aid, or other benefit  provided under the program;     (ii) Provide any service, financial aid, or other benefit to an  individual, which is different, or is provided in a different manner,  from that provided to others under the program.     (2) A recipient, in determining the types of services, financial  aid, or other benefits, or facilities which will be provided under any  such program, or the class of individuals to whom, or the situations in  which such services,  [[Page 34700]]  financial aid or other benefits, or facilities will be provided may not  directly, or through contractual or other arrangements, utilize  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  to individuals of a particular race, color or national origin.''  (Emphasis added. 104(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, including a regulation similar to that of DOJ,  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.     Executive Order 13166, ``Improving Access to Services for Persons  with Limited English Proficiency,'' 65 FR 50121 (August 16, 2000), was  issued on August 11, 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 Agency Civil Rights Officers setting forth general principles for  agencies to apply in developing guidance documents for recipients  pursuant to the Executive Order and 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''). The Department of Justice'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 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.     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 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. 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. ---------------------------------------------------------------------------      VA's policy guidance is consistent with and is issued under the  Title VI and the Title VI regulations, and is also consistent with the  August 11, 2000, DOJ ``Policy Guidance Document on Enforcement of  National Origin Discrimination Against Persons With Limited English  Proficiency,'' 65 FR 50123 (August 16, 2000); Executive Order 13166;  and the DOJ LEP guidance issued on June 18, 2002. 67 FR 41457 (June 18,  2002).  III. Who Is Covered?      All entities that receive Federal financial assistance from the VA,  either directly or indirectly, through a grant, contract or  subcontract, are covered by this policy guidance (see list 38 CFR, part  18, appendix A). Covered entities include (1) any state or local  agency, private institution or organization, or (2) any public or  private individual that operates, provides, or engages in activities,  and that receives Federal financial assistance.\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 VA LEP Guidance are to additionally apply to the  programs and activities of federal agencies, including the VA. ---------------------------------------------------------------------------      The term Federal financial assistance to which Title VI applies  includes, but is not limited to, grants and loans of Federal funds,  grants or donations of Federal property, details of Federal personnel,  or any agreement, arrangement, or other contract which has as one of  its purposes the provision of assistance. Title VI prohibits  discrimination in any program or activity that receives Federal  financial assistance. What constitutes a program or activity covered by  Title VI was clarified by Congress in 1988, when the Civil Rights  Restoration Act of 1987 (CRRA) was enacted. The CRRA provides that, in  most cases, when a recipient/covered entity receives Federal financial  assistance for a particular program or activity, the recipient's entire  operation is covered. This is true even if only one part of the  recipient receives the Federal assistance.     Example: VA provides assistance to a state agency to improve a  particular cemetery. All of the operations of the entire state  agency, not just the particular cemetery 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.     VHA administers several programs and activities that receive  Federal financial assistance from the VA. All entities that receive  Federal financial assistance from VA are listed in 38 CFR, part 18,  appendix A, either directly or indirectly, through a grant, contract,  or subcontract, are covered by this policy guidance. Covered entities  include (1)  [[Page 34701]]  any state or local agency, private institution or organization, or (2)  any public or private individual that operates, provides, or engages in  health, or social service programs and activities, and that receives  Federal financial assistance from VA directly or through another  recipient/covered entity.     Examples of covered entities include, but are not limited to  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;  programs for families, youth and children; Head Start programs;  physicians; and other providers who receive Federal financial  assistance from VA.     VBA is responsible for ensuring compliance in proprietary, non- college degree granting educational institutions approved to train  veterans and/or their beneficiaries. In 1968, the Attorney General  ruled that recipients of tuition or other payments from veterans for  education programs are receiving Federal financial assistance. The U.S.  District Court upheld this principle in Bob Jones University, et at, v.  Donald E. Johnson, 396 F. Supp. 597 (D.S.C. 1974), aff'd 529 F.2d 514  (4th Cir. 1975).     VBA is also responsible for ensuring Title VI compliance in certain  education and training programs funded by the U.S. Department of  Education (ED). Under a delegation agreement, VA has Title VI  compliance responsibilities for ED-funded proprietary educational  institutions, except those operated by a hospital. VA is also delegated  Title VI responsibility for post-secondary, nonprofit educational  institutions, other than colleges and universities, except if operated  by a college, university, hospital, or a unit of State or local  government. VA's LEP guidance applies only to recipients for whom VA  has compliance responsibility.     VBA's Title VI compliance responsibility also applies to recognized  national service organizations whose representatives assist veterans in  the preparation, presentation and prosecution of claims for VA  benefits. In December 1975, DOJ's ``Interagency Report: Evaluation of  Title VI Enforcement at the Veterans Administration,'' concluded that  representatives of recognized service organizations afforded the use of  Federally-owned property provided by VA without charge are recipients  of Federal assistance. These service organizations are considered  recipients within the meaning of Title VI. Recognized national  veterans' service organizations and State employment services both use  VA office space and, therefore, VA's LEP guidance applies to those  entities.     VBA recipients receiving Federal financial assistance, and covered  by the LEP policy guidance include but are:  Educational institutions whose programs are approved for training under  38 U.S.C., chapters 30, 31, 32, 35 and 10 U.S.C., chapter 1613. Representatives of recognized national veterans service organizations  who utilize VBA space and office facilities (38 U.S.C. 5902(a)(2)). Representatives of State employment services who utilize VBA space and  office facilities (38 U.S.C. 7725(1)).      NCA administers the State Cemetery Grants Program (SCGP). Examples  of covered entities include, but are not limited to: Cemeteries; state,  county and local agencies; and other providers who receive Federal  financial assistance from VA.  IV. Who Is a Limited English Proficient Individual?      Individuals who do not 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 VA recipients and should be considered  when planning language services include, but are not limited to, for  example:  --Persons seeking healthcare services or benefits; --Persons seeking access to veterans cemeteries, including family  members and friends of deceased veterans and others who are eligible  for burial in such cemeteries; --Persons seeking educational, training, including spouses and  children; --Persons seeking assistance in the preparation, presentation, and  prosecution of claims for VA benefits; --Other persons who encounter or seek services, benefits, or  information from entities receiving Federal financial assistance from  VA.  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 find 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  different types of programs or activities. 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. VA 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 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 VA facility serves a large LEP  population, the appropriate service area is most likely the area  serviced by the facility, and not the entire population served by the  department. Where no service area has previously been approved, the  relevant service area may  [[Page 34702]]  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 legal  system.     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 under served 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.     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 those languages 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 census data, for instance, it is important to  focus in on the languages spoken by those who are not proficient in  English. 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.  (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 a 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 a 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  obligation to communicate with a person seeking medical services  differs, for example, from those to provide voluntary recreational  programming. 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  access to important benefits and services 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.     However, resource and cost issues 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  videoconferencing interpretation services, pooling resources and  standardizing documents to reduce translation needs, using qualified  translators and interpreters to ensure that documents need not be late  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. 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. 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  healthcare recipient  [[Page 34703]]  operating in a largely Hispanic neighborhood may need immediate oral  interpreters available and should give serious consideration to hiring  some bilingual staff. (Of course, many have already made such  arrangements.) 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 general public tour of a veterans' social  facility--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.  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; \5\ ---------------------------------------------------------------------------      \5\ 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 medical or  benefits-related terms, 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 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. --Understand and adhere to their role as interpreters without deviating  into a role as counselor, legal advisor, or other roles.      Some recipients 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 hearings, the provision of healthcare, or the provision of other  vital services or exchange of vital information, the use of certified  interpreters is strongly encouraged. For those languages in which no  formal accreditation or certification currently exists, such entities  should consider a formal process for establishing the credentials of  the interpreter. 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.     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 prison 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 of  ``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 DOJ recipients providing  law enforcement, health, and safety services, and when important legal  rights are at issue, a recipient would likely not be providing  meaningful access if it had one bilingual staff person available one  day a week to provide the service. Such conduct would likely result in  delays for LEP persons that 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, or program  directors, with staff that 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 times when the role of the bilingual employee  may conflict with the role of an 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.     Contracting for Interpreters. Contract interpreters may be a cost- effective  [[Page 34704]]  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,  medical, or legal terms specific to the 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. 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.     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 recipients' 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  applicable confidentiality and impartiality rules.     Use of Family Members or Friends 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,  or friend) 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 or friend 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 interest in accurate interpretation. In many  circumstances, family members (especially children), or friends are not  competent to provide quality and accurate interpretations. Issues of  confidentiality, privacy, or conflict of interests may also arise. LEP  individuals may feel uncomfortable revealing or describing sensitive,  confidential, or potentially embarrassing medical, mental health,  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. For these reasons, when oral language services are  necessary, recipients should generally offer competent interpreter  services free of cost to the LEP person. For VA 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 an LEP person seeks medical care  from a VA funded recipient. In such a case, use of family members or  neighbors to interpret for the LEP patient may raise serious issues of  competency, confidentiality, and conflict of interest and be  inappropriate. While issues of competency, confidentiality, and  conflicts of interest in the use of family members (especially  children), or friends 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 VA facility  offered to the public. 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, a 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 adjudicatory, medical,  administrative, or other 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 extra 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.     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, recipients may determine that an effective LEP plan ensures  that certain vital written materials are translated into the  [[Page 34705]]  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 --Forms with the potential for important consequences --Written notices of rights, denial, loss, or decreases in benefits or  services, and 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 --Applications to participate in a recipient's program or activity or  to receive recipient benefits or services.      Whether or not a document 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 certain recreational programs should not generally be  considered vital, whereas applications for drug and alcohol counseling  should be considered vital. Where appropriate, recipients are encourage  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. To have meaningful access,  service, benefit, or information, LEP persons may need to be aware of  their existence. Thus, vital information may include, for instance,  documents indicating how to obtain oral assistance in understanding  other information not contained in the translated documents. 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 the more  frequent languages encountered by a recipient and less common  languages. Many recipients serve communities in large cities or across  the country. These recipients may 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 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 up-front cost of  translating a document (as opposed to oral interpretation) should be  amortized over the likely life span 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 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 a recipient's 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:     (a) The 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  [[Page 34706]]  interpreters where oral language services are needed and are  reasonable.     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. 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. 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.     There may be languages that do not have an appropriate direct  translation of some 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 accurate 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 require translators that are less skilled than  important documents with technical legal, medical, or other information  upon which reliance has important consequences. 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. 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 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 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 their  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 an effective written implementation plan,  however, the absence of them does not necessarily mean there is non- compliance.  (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 English and Spanish or ``I  speak Vietnamese in 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. 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 includes 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  [[Page 34707]]  persons. An effective LEP plan includes training to ensure that:  --Staff knows about LEP policies and procedures. --Staff having contact with the public is 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 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 their 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:     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 services or  activities provided by VA 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. The Social Security  Administration has made such signs available on their Web site. These  signs could be modified for recipient use.     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.     Working with community-based organizations and other stakeholders  to inform LEP individuals of the recipient.     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.     Including notices in local newspapers in languages other than  English.     Providing notices on non-English-language radio and television  stations about the available language assistance services and how to  get them.     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. --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 VA 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 VA 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, VA will inform  the recipient/covered entity in writing of this determination,  including the basis for the determination. If the investigation results  in a finding of noncompliance, VA must inform the recipient/covered  entity 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 must attempt to secure voluntary compliance through  informal means. If the matter cannot be resolved informally, VA must  secure compliance through: (a) Federal assistance after the recipient/ covered entity has been given an opportunity for an administrative  hearing and/or (b) referral to a DOJ litigation section to for  injunctive relief or other enforcement proceedings; or (c) any other  means authorized by law.     As the Title VI regulations set forth above indicate, VA has a  legal obligation to seek voluntary compliance in resolving cases and  cannot seek the termination of funds until it has engaged in voluntary  compliance efforts and has determined that compliance cannot be secured  voluntarily. VA will engage in voluntary compliance efforts, and will  provide technical assistance to recipients at all stages of its  investigation. During these efforts to secure voluntary compliance, VA  will propose reasonable timetables for achieving compliance and will  consult with and assist recipient/covered entities in exploring cost- effective ways of coming into compliance. In determining a recipient's  compliance with Title VI and the regulations, VA'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, VA 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  [[Page 34708]]  reevaluated. As recipients take reasonable steps to provide meaningful  access to Federally assisted programs and activities for LEP persons,  VA 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 reasonable require a series of implementing actions over a  period of time. However, in developing any phased implementation  schedule, 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.  [FR Doc. 03-14414 Filed 6-9-03; 8:45 am]  BILLING CODE 8320-01-P 
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Updated August 6, 2015

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