Federal Coordination and Compliance Section Publications

 [Federal Register: February 20, 2002 (Volume 67, Number 34)] [Notices]                [Page 7692-7698] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr20fe02-55]                           ======================================================================= -----------------------------------------------------------------------  GENERAL SERVICES ADMINISTRATION    Office of Civil Rights; Title VI of the Civil Rights Act of 1964;  Limited English Proficiency Policy Guidance for Recipients of Federal  Financial Assistance  AGENCY: General Services Administration.  ACTION: Notice of policy guidance with request for comment.  -----------------------------------------------------------------------  SUMMARY: The General Services Administration (GSA) is republishing for  additional public comment, policy guidance on Title VI's prohibition  against national origin discrimination as it affects limited English  proficient persons.  DATES: Effective date: This guidance was effective January 17, 2001.  Comment due date: Comments must be submitted on or before March 22,  2002. GSA will review all comments and will determine what  modifications to the policy guidance, if any, are necessary.  ADDRESSES: Interested persons should submit written comments to the  Office of Civil Rights (AK), Room 5127, General Services  Administration, 1800 F Street, NW., Washington, DC 20405. Comments may  also be submitted by e-mail at evelyn.britton@gsa.gov, or facsimile at  202-219-3369.  FOR FURTHER INFORMATION CONTACT: James M. Taylor or K. Evelyn Britton,  Office of Civil Rights, Room 5127, General Services Administration,  1800 F Street, NW., Washington, DC 20405, telephone 202-501-0767 or 1- 800-662-6376; TDD 1-888-267-7660. Arrangements to receive the policy  guidance in an alternative format may be made by contacting the named  individuals.  SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of 1964, 42  U.S.C. 2000d, et seq. and its implementing regulations provide that no  person shall be subjected to discrimination on the basis of race,  color, or national origin under any program or activity that receives  Federal financial assistance. The purpose of this policy guidance is to  clarify the responsibilities of recipients of Federal financial  assistance from GSA (``recipients''), 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 implementing  regulations. This document was originally published on January 17,  2001. (See 66 FR 4026.) The document was based on the 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'' (65 FR 50123, August 16,  2000). On October 26, 2001, and January 11, 2002, the Assistant  Attorney General for Civil Rights issued to Federal departments and  agencies guidance memoranda, which reaffirmed the Department of  Justice's commitment to ensuring that federally assisted programs and  activities fulfill their LEP responsibilities and which clarified and  answered certain questions raised  [[Page 7693]]  regarding the August 16th publication. GSA is presently reviewing its  original January 17, 2001, publication in light of these clarifications  to determine whether there is a need to clarify or modify the January  17th guidance. In furtherance of those memoranda, GSA is republishing  its guidance for the purpose of obtaining additional public comment.  The text of the complete guidance document appears below.      Dated: February 13, 2002. Madeline Caliendo, Associate Administrator, Office of Civil Rights, General Services  Administration.  Policy Guidance      1. Subject. Limited English proficiency policy guidance for  recipients of Federal financial assistance     2. Purpose. General Services Administration (GSA) provides this  policy guidance for its recipients of Federal financial assistance to  ensure meaningful access to federally assisted programs and activities  for persons with Limited English Proficiency (LEP). This policy  guidance does not create new obligations, but rather, clarifies  existing responsibilities under Title VI of the Civil Rights Act of  1964, as amended, its implementing regulations and relevant case law.     3. Dates. This guidance was effective January 17, 2001. Comments  must be submitted on or before March 22, 2002. GSA will review all  comments and will determine what modifications to the policy guidance,  if any, are necessary.     4. Policy. To improve access to federally assisted programs and  activities for persons who, as a result of national origin, are limited  in their English proficiency.     5. Action Required. All recipients of Federal financial assistance  from GSA are to develop an effective plan, in writing, for ensuring  meaningful access to their programs and activities by LEP persons,  consistent with this guidance.     6. Background Information. English is the predominant language of  the United States. According to the 1990 Census, English is spoken by  95% of its residents. Of those U.S. residents who speak languages other  than English at home, the 1990 Census reports that 57% above the age of  four speak English ``well to very well.''     The United States is also home to millions of national origin  minority individuals who are LEP. That is, their primary language is  not English and they cannot speak, read, write or understand the  English language at a level that permits them to interact effectively  with recipients of Federal financial assistance. Because of language  differences and the inability to effectively speak or understand  English, persons with LEP may be subject to exclusion from programs or  activities, experience delays or denials of services/benefits, or  receive care and services/benefits from recipients of Federal financial  assistance based on inaccurate or incomplete information.     Executive Order 13166 (65 FR 50119) dated August 11, 2000 and  policy guidance issued by Department of Justice (DOJ) on August 11,  2000 (65 FR 50123), address the responsibility of all recipients of  Federal financial assistance to ensure meaningful access for persons  with LEP. GSA refers to and incorporates DOJ's policy guidance for  recipients as part of this policy guidance, and for the purpose of  determining compliance with this policy guidance, within the scope of  Title VI of the Civil Rights of 1964, as amended, its implementing  regulations and relevant case law.     This policy guidance establishes a four-step process that  recipients should follow in developing an effective LEP assistance  plan. A key element in this process is stakeholder input. Therefore,  recipients should coordinate with local community-based organizations  (i.e., stakeholders) that represent populations of LEP persons. These  organizations can provide valuable input and assistance in identifying  and addressing the LEP needs of the serviced population. This  coordinated effort will assist in developing a practical approach in  providing appropriate LEP assistance that is reasonable and cost- effective.     Some organizations representing LEP persons may include the  National Council of La Raza (NCLR), the League of United Latin American  Citizens (LULAC), the National Council of Asian Pacific Americans  (NCAPA), the Organization of Chinese Americans (OCA), the National  Congress of American Indians (NCAI), the National Urban League (NUL),  the National Association for the Advancement of Colored People (NAACP),  Mexican American Legal Defense and Educational Fund, Arab American  Anti-Discrimination Committee and National Coalition for Haitian  Rights. This is not meant to be an exhaustive listing, and different  community-based or national origin minority organizations may be  available in a recipient's serviced area.     7. Legal Authority. The legal authority for the Office of Civil  Right's (OCR's) enforcement actions is Title VI of the Civil Rights Act  of 1964, GSA's implementing regulations, and a consistent body of case  law, and is further described below.     Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.  section 2000d et seq. states: ``No person in the United States 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.''     State and local laws may provide additional obligations to serve  LEP individuals, but cannot compel recipients of Federal financial  assistance to violate Title VI. For instance, given our constitutional  structure, State or local ``English-only'' laws do not relieve an  entity that receives Federal funding from its responsibilities under  Federal anti-discrimination laws. Entities in States and localities  with ``English-only'' laws are certainly not required to accept Federal  funding--but if they do, they have to comply with Title VI, including  its prohibition against national origin discrimination by recipients of  Federal assistance. Thus, failing to make federally assisted programs  and activities accessible to individuals who are LEP will, in certain  circumstances, violate Title VI.     GSA's implementation regulations provide, in part, at 41 CFR 101- 6.204-1:      ``No person in the United States shall, on the ground 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  [[Page 7694]]  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* * *''      Furthermore, the DOJ coordination regulations for Title VI, located  at 28 CFR 42.405(d)(1), provide that:      ``(1) Where a significant number or proportion of the population  eligible to be served or likely to be directly affected by a  federally assisted program (e.g., affected by relocation) needs  service or information in a language other than English in order  effectively to be informed of or to participate in the program, the  recipient shall take reasonable steps, considering the scope of the  program and the size and concentration of such population, to  provide information in appropriate languages to such persons. This  requirement applies with regard to written material of the type  which is ordinarily distributed to the public.''      Extensive case law affirms the obligation of recipients of Federal  financial assistance to ensure that persons with LEP can meaningfully  access federally assisted programs. Specifically, in the case of Lau v.  Nichols, 414 U.S. 563 (1974), the U.S. Supreme Court ruled that a  public school system's failure to provide English language instruction  to students of Chinese ancestry who do not speak English denied the  students a meaningful opportunity to participate in a public  educational program in violation of Title VI of the Civil Rights Act of  1964.     More recently, the Eleventh Circuit in Sandoval v. Hagan, 197 F.3d  484 (11th Cir. 1999), cert. granted sub. Nom., Alexander v. Sandoval,  147 L. Ed. 2d 1051 (U.S. Sept. 26, 2000) (No. 99-1908), held that the  State of Alabama's policy of administering a driver's license  examination in English only was a facially neutral practice that had an  adverse effect on the basis of national origin, in violation of Title  VI. Title VI regulations prohibit both intentional discrimination and  policies and practices that appear neutral but have a discriminatory  effect. Thus, a recipient's policies or practices regarding the  provision of benefits and services to persons with LEP need not be  intentional to be discriminatory, but may constitute a violation of  Title VI where they have an adverse effect on the ability of national  origin minorities to meaningfully access programs and services.     The DOJ states in its policy guidance that Title VI does not  require recipients to remove language barriers when English is an  essential aspect of the program, or there is another ``substantial  legitimate justification for the challenged practice.'' See Footnote 13  of DOJ's policy guidance.     8. Federal Financial Assistance Programs. GSA administers two major  Federal financial assistance programs, in addition to other programs of  Federal financial assistance, such as the direct transfer of personal  property and the allotment of space in GSA buildings. The two major  programs of Federal financial assistance are the Federal Surplus  Personal Property Donation Programs and the Disposal of Federal Surplus  Real Property for Public Use.     a. Federal Surplus Personal Property Donation Program. Enables  certain non-Federal agencies, institutions, organizations and certain  small businesses to obtain property that the Federal Government no  longer needs. The personal property includes all types and categories  of property, such as hand and machine tools, office machines and  supplies, furniture, appliances, medical supplies, hardware, clothing,  motor vehicles, boats, airplanes, construction equipment, textiles,  communications and electronic equipment and gifts or decorations given  to Government officials by foreign dignitaries.     (1) Federal surplus personal property may be donated to nonprofit  educational and public health activities exempt from taxation under  Section 501 of the Internal Revenue Code. The property must be used to  aid education or public health, and includes programs for the homeless.  Eligible recipients include nonprofit educational and public health  activities, such as medical institutions, hospitals, clinics, health  centers, and drug abuse treatment centers; schools, colleges and  universities; schools for persons with mental or physical disabilities;  child care centers; educational radio and televisions licensed by the  Federal Communications Commission; museums attended by the public; and  libraries. Nonprofit, tax-exempt organizations that provide food,  shelter, or support services to homeless people may also be eligible to  receive surplus property through the donation program (i.e., soup  kitchens, day centers for the homeless, food banks, shelters for  battered spouses, half-way houses).     (2) Additionally, public 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 may be eligible for donations of surplus  personal property. Public agencies generally include States, their  departments, divisions and other instrumentalities; political  subdivisions of States, including cities, counties, and other local  Government units and economic development districts; instrumentalities  created by compact or other agreement between State or political  subdivisions; and Indian tribes, bands, groups, pueblos, or communities  located on State reservations.     b. Disposal of Federal Surplus Real Property for Public Use. Under  existing Federal law, States and local government bodies and certain  nonprofit institutions may acquire Federal surplus real property at  discounts of up to 100% for various types of public use. These uses  include: homeless services, airports/ports, correctional, educational,  historic monument, parks/recreation, public health and wildlife  conservation. These disposals are usually accomplished in coordination  with other Federal agencies (i.e., Department of Education (DOE),  Department of Health and Human Services (DHHS), Department of  Transportation (DOT), Department of Interior (DOI), Department of  Housing and Urban Development (HUD).     c. GSA Personal Property Utilization Program. Government  regulations mandate that Federal agencies, to the fullest extent  practicable, use excess personal property as the first source of supply  in meeting their requirements. However, certain laws provide Federal  agencies with the ability to directly transfer certain excess property  to non-Federal entities. For example, Executive Order 12999 (61 FR  17227, 3 CFR, 1996 comp., p. 180) provides that all Federal agencies,  to the extent permitted by law, shall give highest preference to  schools and nonprofit organizations, including community-based  educational organizations, in the transfer of educationally useful  Federal equipment. Thus, GSA recipients in this program include schools  and certain community-based educational organizations.     d. Allotment of Space. Under existing Federal law, GSA may allot  space for little or no costs to Federal Credit Unions, vending stands  operated by blind persons and child care centers.     9. Definition of Terms. The following definitions are provided for  reference.     a. Federal financial assistance: Grants and loan of Federal funds;  grants or donation of Federal property and interests in property;  detail of Federal personnel; sale and lease of, and the permission to  use (on other than a casual or transient basis) Federal property or any  interest in the property without consideration or at a nominal  consideration, or at a consideration which is reduced for the purposes  of assisting the recipient, or in recognition  [[Page 7695]]  of the public interest to be served by the sale or lease to the  recipient; or any Federal agreement, arrangement, or other contract  which has as one of its purposes the provision of assistance.     b. Recipient: Any State or political subdivision, any  instrumentality of a State or political subdivision, any public or  private agency, institution, organization, or other entity, or any  person to which Federal financial assistance is extended, directly or  through another recipient, except that such term does not include any  ultimate beneficiary of the assistance.     c. Person with Limited English Proficiency: A person whose primary  language is not English and whose ability to speak, read, write or  understand the English language does not permit effective interaction  with recipients of Federal financial assistance.     d. Vital Documents: A document or information will be considered  vital if it contains information that is critical for accessing the  recipient's program(s) and/or activities, or is required by law. Thus,  vital documents include, for example, applications; consent forms;  letters and notices pertaining to the reduction, denial or termination  of services or benefits; and letters or notices that require a response  from the beneficiary or client. Generally, entire web sites need not be  translated. Only the vital information or documents within the web site  should be translated. See subparagraph 11b(3) below for further  discussion about web sites.     e. Beneficiary: Individuals and/or entities that directly or  indirectly receive an advantage through the operation of a Federal  program, (i.e., one who is within the serviced population of the  recipient of Federal financial assistance and who ultimately benefits  from those services.)     10. LEP Procedures and Guidelines. Executive Order 13166 (65 FR  50119) provides for a flexible standard stating that recipients of  Federal financial assistance are to take reasonable steps to ensure  meaningful access to their programs and activities by LEP persons.  Thus, it is important that all recipients take the following steps in  determining their LEP responsibilities and providing appropriate LEP  assistance. These four steps are more fully explained below, and  include: (1) Conduct an assessment of the serviced population, (2)  develop written LEP assistance plans, (3) implement the LEP plan, and  (4) monitor the effectiveness of the LEP plan.     a. Step 1. Conduct an assessment of the serviced population. This  assessment includes identifying the types of service(s) being provided  by the recipient and determining the serviced population (i.e.,  individuals served by the recipient's program(s) and activities).     b. Step 2. Develop written LEP assistance plans. These plans should  address the recipient's LEP responsibilities and the types of LEP  assistance that the recipient will provide, consistent with this policy  guidance. Recipients are to develop a written plan based on a balanced  analysis of the following four factors, to ensure meaningful access for  eligible LEP persons.     (1) Factor 1: Number or Proportion of LEP Persons. One factor in  determining the reasonableness of a recipient's efforts in providing  LEP assistance is the number or proportion of people who will be  excluded from the benefits or services absent efforts to remove  language barriers. The key here is to focus on persons who are eligible  to access the recipient's program or activity.     The steps reasonable for a recipient that serves one LEP person a  year may be different than those expected of a recipient that serves  several LEP persons per day. However, those who serve a few are still  subject to the requirements of Title VI of the Civil Rights Act of 1964  and Executive Order 13166 (65 FR 50119). This plan need not be  intricate, and may be as simple as being prepared to use one of the  commercially available language lines to obtain interpreter services  within a reasonable period of time.     Methods of obtaining estimates of serviced LEP population include  taking a census of contacts with LEP persons over a given period of  time or using demographic data of the service area. The 1990 U. S.  Census information may be found at a local library or on the Internet  at www.Census.gov. The 2000 Census data may not be available until the  2001-02 timeframe. In addition to the U. S. Census, other potential  resources include State and local government offices; the Mayor's  office; the local school superintendent's office; the State education  department; the State social services department, and local hospitals;  or other elected officials offices. Combining these methods will  probably result in the most realistic and accurate estimates.     Local or State Yellow Pages may also be helpful in identifying  organizations that serve or represent particular language minority  populations. Local national origin minority organizations may be able  to provide, or assist in obtaining, certain demographic information  regarding LEP populations in the local area. The information that can  be obtained and the network established in coordinating this type of  effort with members of local and State government offices and minority  organizations may prove to be valuable resources for recipients into  the future.     (2) Factor 2: Frequency of Contact with the Program. Frequency of  contacts between the recipient's program or activity and LEP persons is  another factor to be weighed. For example, if LEP persons must access  the program or activity on a daily basis, the recipient has a greater  LEP responsibility than if such contact is unpredictable or infrequent.  Recipients should take into account local or regional conditions when  determining frequency of contact.     Although past experience may be helpful in determining the  frequency of contact, it should not be used as the exclusive criteria  since the lack of prior LEP notice and assistance may have contributed  to such minimal or non-existent contact.     (3) Factor 3: Nature and Importance of the Program. The importance  of the services or benefits provided to the beneficiaries will affect  the determination of the reasonable steps required. More affirmative  steps are required in those programs where the denial or delay of  access may have life or death implications than in programs that are  not as crucial to one's day-to-day existence. For example, fire  protection services are of more importance to the serviced population  than access to a museum.     Recipients must also consider the importance of the program or  activity to the eligible LEP population, both immediately, as well as  the long-term. (i.e., what is the short-term and long-term impact to  the LEP population if translation assistance is not provided?)     (4) Factor 4: Resources Available. The resources available to a  recipient of Federal financial assistance may impact the steps that  recipients take. For example, a small recipient with limited resources  may not need to take the same steps as a larger recipient to provide  LEP assistance in programs that have a limited number of eligible LEP  persons or where the contact is infrequent. However, small recipients  are still subject to this policy guidance, although the type of LEP  mitigation measures may differ from that of larger recipients. Claims  of limited resources from larger entities should be well substantiated.     A recipient that has limited resources may consider exploring  whether State and local government offices provide translation  assistance. These offices may provide resources for the recipient's  use.  [[Page 7696]]  Also, recipients may consider contacting local minority organizations  for possible translation assistance.     c. Step 3: Implement the LEP plan. The key to successful  implementation of an effective LEP assistance plan is to ensure that  the serviced population is notified regarding the availability of free  LEP assistance. Also, it is important that a recipient's staff is aware  of LEP responsibilities and the recipient's LEP assistance plan.     (1) Notice of LEP assistance to be provided. Each recipient of  Federal financial assistance is to notify the public of available LEP  assistance at no cost to the LEP person. This may be done through a  brochure or poster in the language(s) identified in the location(s)  where the recipient's federally assisted service(s) and/or benefits are  being provided. Posters should be placed in a conspicuous place to  ensure LEP persons will see it. It may also include posting such notice  on the recipient's internet site(s). Sample language to use for such  notice is as follows: ``Language assistance is available upon request  if you cannot speak or write English very well.''     (2) Ensure staff is aware of LEP responsibilities. Recipients are  to ensure that GSA's policy regarding LEP responsibilities is  communicated to all staff members whose duties may bring them in  contact with LEP persons accessing the services and/or benefits of the  recipient. This communication should ensure an understanding of the  types of LEP assistance being offered by the recipient, and the  mechanisms in place for the staff to use when a request for LEP  assistance is made.     d. Step 4: Monitor the effectiveness of the LEP plan. LEP  assistance requirements may change over a period of time. Therefore, it  is important to regularly monitor, and when appropriate, adjust the LEP  procedures to ensure meaningful access for persons with LEP. New  programs, activities, forms, outreach documents, etc. should be  considered for translation services as they arise. In addition, to be  effective, it is crucial for recipients to re-assess language  assistance services at least every three years to determine the  effectiveness of existing assistance. This assessment should include a  review of LEP policies and procedures (i.e., the LEP plan) with the  recipient's staff. Feedback from LEP persons and community-based  organizations will also provide helpful insights into the effectiveness  of LEP assistance procedures.     11. Translation Requirements. In determining what is reasonable,  the analysis should address the appropriate mix of written and oral  language assistance. This includes information provided using the  Internet, video and audio. When applying the four factors as outlined  above, decisions should be made regarding which documents must be  translated, when is oral translation necessary and whether such  assistance (i.e., oral or written translation) should be immediately  available or provided within a reasonable period of time.     a. Oral Communication: Depending on the need, options for providing  oral language assistance range from hiring bilingual staff or on-staff  interpreters to contracting for interpreter services as needed,  engaging community volunteers, or contracting with a telephone  interpreter services. Oral communication between recipients and  beneficiaries often is a necessary part of the exchange of information.  Proper analysis should include looking at what kind of communication  (oral or written) you normally provide to an English speaking person in  order to fully communicate the program to them. Thus, there may be  instances where simply providing written translation may not be  providing meaningful access to persons with LEP in the same manner as  that provided to non-LEP beneficiaries.     b. Written Communication: As part of its overall language  assistance program, a recipient's LEP assistance plan should provide  for the translation of certain written materials in languages other  than English, where a significant number or percentage of the  population eligible to be served or likely to be directly affected by  the program, needs services or information in a language other than  English to communicate effectively. See 28 CFR 42.405(d)(1).     (1) In determining what should be translated, identify vital  documents and non-vital documents. Vital documents must be translated  when a significant number or percentage of the population eligible to  be served, or likely to be directly affected by the recipient's  program(s) or activities, seeks services or information in a language  other than English to communicate effectively. For many larger  documents, translation of vital information contained within the  document will suffice and the documents need not be translated in their  entirety. Non-vital documents/information need not be translated.     (2) OCR recognizes that it may sometimes be difficult to draw a  distinction between vital and non-vital documents, particularly when  considering outreach or awareness documents. Although meaningful access  to a program or activity requires an awareness of the program's  existence, OCR recognizes that it would be impossible, from a practical  and cost-based perspective, to translate every piece of outreach  material into every language. Title VI does not require this of its  recipients. However, lack of awareness regarding the existence of a  particular program may effectively deny LEP persons meaningful access.  Thus, it is important that recipients continually survey and assess the  needs of the eligible serviced populations in order to determine  whether certain critical outreach materials should be translated into  other languages.     (3) The same analysis is to be used in determining the translation  of web site information, forms, etc. The decision to place a document  or information on the Internet will not affect whether the document or  information must be translated. For example, placement on the web site  should not change the recipient's original assessment regarding the  number or proportion of LEP persons that comprise the intended audience  for that document or information. Generally, entire web sites need not  be translated. Only the vital information or documents within the web  site should be translated. The four-factor analysis as outlined above  determines the appropriate language(s) for translation. If the four- factor analysis determines that written information or a document  should be translated, the same written document or information should  be translated on the recipient's web siteu if the recipient's English  version of the information or document is on the web site. A notice  regarding the presence of a translated document or information on the  web site should be posted at an initial entry point onto the site  (usually the homepage).     (4) Oral translation assistance will be provided to those persons  with LEP whose language does not exist in written form. This oral  translation assistance will explain the contents of vital documents.     c. Reliability of Translation Resources and Interpretive Services:  In order to provide effective services to LEP persons, it is important  to ensure the use of competent interpreters. Although it is not a  requirement, membership in or accreditation by the American Translators  Association (ATA) is one indicator regarding the reliability and  professionalism of language assistance vendors. However, competency  does not necessarily mean formal certification as an interpreter,  although certification is helpful. Yet, competency refers to more than  being bilingual. It refers to demonstrated proficiency in both English  and the other language, orientation and training that includes  [[Page 7697]]  the skills and ethics of interpreting (i.e., issues of  confidentiality), fundamental knowledge in both languages of terms or  concepts peculiar to the program or activity, and sensitivity to the  LEP person's culture.     It is also important to note that in some circumstances, verbatim  translation of materials may not accurately and appropriately convey  the substance of what is contained in the written language. An  effective way to address this concern is to reach out to community- based organizations to review translated materials to ensure that the  translation is accurate and easily understood by LEP persons.     It is recommended that a different contractor conduct a second  review of a translated document, when such document is of a highly  technical or complex nature. Another method of ensuring reliability of  such documents is to have the document translated back into English to  determine if the source document lost important meaning in its foreign  translation.     Generally, it is not acceptable for recipients to rely upon an LEP  individual's family members or friends to provide the interpreter  services. The recipient should meet its obligations under Title VI by  supplying competent language services free of cost. In rare emergency  situations, the recipient may have to rely on an LEP person's family  members or other persons whose language skills and competency in  interpreting have not been established. Proper planning by recipients  is important in order to ensure that those situations rarely occur.  Therefore, it is not acceptable to rely upon an LEP person to provide  his/her own interpreter, unless the LEP person requests the use of his/ her own interpreter or in the case of an emergency.     12. Examples. The following examples are being provided to  facilitate the assessment, planning and implementation of a successful  LEP plan.     a. Examples of problem areas include: Providing services and/or  benefits to LEP persons that are more limited in scope or lower in  quality than those provided to other individuals; subjecting LEP  persons to unreasonable delays; limiting participation in a recipient's  program(s) or activities on the basis of English proficiency; providing  services and/or benefits to LEP persons that are not as effective as  those provided to persons proficient in English; failing to inform LEP  persons of the right to receive free interpreter services; or requiring  LEP persons to provide their own interpreter.     b. Examples of satisfactory LEP assistance include: Having policies  and procedures in place for identifying and assessing the language  needs of the recipient's serviced LEP population; providing a range of  oral language assistance options, appropriate to each of the  recipient's circumstances; providing notice to LEP persons of the right  to free language services; communicating LEP responsibilities and  available services to staff members; program monitoring; establishing a  plan for providing written materials in languages other than English  where a significant number or percentage of the affected population  needs services or information in a language other than English.     c. Examples of applying the 4 factors: The following are examples  of how meaningful access will be assessed by OCR:     (1) Example 1. A small child care center has three LEP parents (two  who are Chinese and one who is Cuban) whose English-speaking children  attend its child care 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, 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.     Application of the 4 factors to Example 1: Factor 1: The center has  three LEP parents (a small number); Factor 2: The frequency of contact  is every day, but mostly for greeting; Factor 3: The nature and  importance of the recipient's program to the serviced population  relates to the health, safety and welfare of their children (i.e.,  child care); Factor 4: The child care center has limited resources and  a small staff.     The assistance that the child care 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 find  the center in compliance with Title VI.     (2) Example 2. A county social service program has a large budget  and serves 500,000 beneficiaries. Of the beneficiaries eligible for its  services/benefits, 3,500 are LEP Chinese persons, 4,000 are LEP  Hispanic persons, 2000 are LEP Vietnamese persons and about 400 are LEP  Laotian persons. The county frequently encounters an LEP client, but  has no policy regarding language assistance to LEP persons other than  telling LEP clients to bring their own interpreters. LEP clients are  provided with application and consent forms in English and, if  unaccompanied by their own interpreters, must solicit the help of other  clients or must return at a later date with an interpreter.     Application of the 4 factors to Example 2: Factor 1: The eligible  LEP population is significant; Factor 2: The frequency of contact is  frequent; Factor 3: The nature and importance of the county's program  relates to the social welfare of the community it serves; Factor 4: The  county has a large budget.     Given the size of the county program, its resources, the size of  the eligible LEP population, the frequency of contact and the nature of  the program, OCR would likely find the county in violation of Title VI  and would require it to develop a comprehensive language assistance  program.     d. The intent of this guidance is to provide recipients with  information regarding the requirements of Title VI and its implementing  regulations for providing meaningful access for LEP persons to  federally assisted services and/or benefits. The examples and framework  outlined above are not intended to be exhaustive. Thus, recipients have  considerable flexibility in determining how to comply with their legal  obligation in meeting their LEP responsibilities, and are not required  to use all of the suggested methods and options listed. However,  recipients must establish and implement policies and procedures for  providing language assistance sufficient to fulfill their Title VI  responsibilities.     13. Compliance. All recipients must take reasonable steps  (consistent with this policy guidance) to overcome language differences  that result in barriers and provide the language assistance needed to  ensure that persons with LEP have meaningful access to services and  benefits.     a. The failure to take all of the steps as outlined herein will not  necessarily mean that a recipient has failed to provide meaningful  access to LEP persons. OCR will make assessments on a case by case  basis and will consider several factors in determining whether the  steps taken by a recipient provide meaningful access. (i.e., nature and  importance of recipient's services to the serviced population,  recipient's size, availability of financial and other resources, and  frequency of contact with LEP persons).  [[Page 7698]]      b. Those factors include the size of the recipient and the eligible  LEP population, the nature of the program or service, the objectives of  the program, the total resources available, the frequency with which  particular languages are encountered, and the frequency with which LEP  persons come into contact with the recipient's program.     c. There are instances where recipients of Federal financial  assistance from GSA may also be recipients of Federal financial  assistance from other Federal agencies. For instance, hospitals and  health clinics may receive financial assistance from the Department of  Health and Human Services (DHHS); schools and universities may receive  financial assistance from the Department of Education (DOE); police  departments and other law enforcement agencies/organizations may  receive financial assistance from the Department of Justice (DOJ). In  order to avoid the potential for confusion with such recipient  organizations as to their LEP responsibilities, OCR will apply, where  appropriate, the Federal agency's LEP guidance that is more specific  and/or stringent regarding LEP responsibilities and assistance.     14. Enforcement. OCR will enforce Title VI, and the recipient's  responsibility to establish LEP procedures and provide appropriate LEP  assistance, consistent with enforcement procedures as provided in Title  VI regulations. These procedures include complaint investigations,  compliance reviews, efforts to secure voluntary compliance, and  technical assistance.     GSA's Title VI regulations provide that OCR will investigate  whenever it receives a complaint, report or other information that  alleges or indicates possible noncompliance with Title VI. If the  investigation results in a finding of compliance, OCR will inform the  recipient in writing of this determination, including the basis for the  determination. If the investigation results in a finding of  noncompliance, OCR will inform the recipient of the noncompliance  through a Letter of Findings that identifies the areas of noncompliance  and the steps that must be taken to correct the noncompliance, and will  attempt to secure voluntary compliance through informal means. If the  matter cannot be resolved informally, the procedure for effecting  compliance as described at 41 CFR 101-6.211-2, et seq. will be  followed.     15. Technical Assistance. A program of language assistance should  provide for effective communication between the recipient and the  person with LEP so as to facilitate participation in, and meaningful  access to the services and/or benefits provided by the recipient. The  key to ensuring meaningful access for LEP persons is effective  communication.     OCR is available to provide assistance to recipients seeking to  ensure that they operate an effective language assistance program. In  addition, during its investigative process, OCR is available to provide  technical assistance to enable recipients to come into voluntary  compliance. OCR may be reached at 202-501-0767 or toll free 1-800-662- 6376, or by mail at General Services Administration, Office of Civil  Rights, Title VI, 1800 F Street NW., Suite 5127, Washington, DC, 20405,  for further assistance. Arrangements to receive this policy guidance in  alternative format may be made by contacting OCR.  [FR Doc. 02-4013 Filed 2-19-02; 8:45 am] BILLING CODE 6820-34-P  
Updated August 6, 2015

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