Federal Coordination and Compliance Section Publications

 [Federal Register: February 1, 2002 (Volume 67, Number 22)] [Notices]                [Page 4968-4982] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr01fe02-67]                            [[Page 4968]]  -----------------------------------------------------------------------  DEPARTMENT OF HEALTH AND HUMAN SERVICES    Office for Civil Rights; Title VI of the Civil Rights Act of  1964; Policy Guidance on the Prohibition Against National Origin  Discrimination as It Affects Persons With Limited English Proficiency  AGENCY: Office for Civil Rights (OCR), HHS.  ACTION: Notice of republication of policy guidance with request for  comment.  -----------------------------------------------------------------------  SUMMARY: The United States Department of Health and Human Services  (HHS) is republishing for comment policy guidance on Title VI's  prohibition against national origin discrimination as it affects  limited English proficient (LEP) persons.  DATES: The guidance was effective August 30, 2000. Comments must be  submitted on or before April 2, 2002. OCR will review all comments and  will determine what modifications to the policy guidance, if any, are  necessary.  ADDRESSES: Comments should be addressed to Deeana Jang with  ``Attention: LEP Comments,'' and should be sent to 200 Independence  Avenue, SW. Room 506F, Washington, DC 20201. Comments may also be  submitted by e-mail at LEP.comments@hhs.gov.  FOR FURTHER INFORMATION CONTACT: Deeana Jang or Ronald Copeland at the  Office for Civil Rights, Room 506F, U.S. Department of Health and Human  Services, 200 Independence Avenue, SW., Washington, DC 20201, addressed  with ``Attention: LEP Comments;'' telephone toll-free number: 1-866- OCR-7748, or 202-619-0553; TDD: toll-free 1-800-537-7697. Arrangements  to receive the policy in an alternative format may be made by  contacting the named individuals.  SUPPLEMENTARY INFORMATION: The United States Department of Health and  Human Services (HHS) is republishing for comment the policy guidance,  ``Title VI Prohibition Against National Origin Discrimination As It  Affects Persons With Limited English Proficiency'' (the ``guidance'').  This guidance was originally published on August 30, 2000, and included  a 60-day comment period. 65 FR 52762. However, pursuant to a memorandum  issued by the United States Department of Justice on October 26, 2001,  HHS is republishing this guidance and inviting public comment on the  guidance. The United States Department of Justice memorandum is  attached and can be found at: http://www.usdoj.gov/crt/cor/lep/ Oct26Memorandum.htm.     The Secretary is interested in comments on all aspects of the  guidance, including comments on the issues listed below. If you are  raising a concern, please be as specific as possible.     (1) Have persons with limited English proficiency seeking health  care or social services benefitted as a result of the guidance? If so,  what have been the benefits? Please be specific about your experiences.     (2) Have persons with limited English proficiency faced challenges  or problems in accessing health care or social services following  issuance of the guidance? If so, what have been the challenges or  problems? Please be specific about your experiences.     (3) Have health care or social services providers faced challenges  or problems in providing these services to persons with limited English  proficiency as a result of the guidance? If so, what have been the  challenges or problems? Please be specific about your experiences. The  Secretary is particularly interested in the experiences of small  providers.     (4) Are there areas of the guidance that you believe need to be  clarified or modified? If so, please explain what areas, why the  area(s) need clarification or modification, and provide any suggestions  for clarification or modification.     (5) Has the guidance been effective in identifying reasonable ways  of providing services to individuals with limited English proficiency?  What are some of the cost-effective ways that are used successfully to  provide services for persons with limited English proficiency that are  not included in the guidance? Again, the Secretary is particularly  interested in the experiences of small providers.     (6) What technical assistance from the Office for Civil Rights  (OCR) and other components of HHS would be most helpful to recipients/ covered entities?     (7) In providing services to persons with limited English  proficiency, what costs have health care or social services providers  incurred in providing translation, interpreter, or other language  services? Please be specific about your experiences. The Secretary is  particularly interested in the experiences of small providers. If  health care or social services providers have not yet provided  translation, interpreter or other language services for persons with  limited English proficiency, what costs are anticipated? Please provide  the basis for your estimate.     (8) Some may assert that the guidance has materially assisted in  achieving the goal of access to health or social services by limited  English proficient individuals. Others may assert that the guidance has  unintentionally had the opposite effect. Is there actual experience to  support either view? Please describe.     (9) Based on your experience, does the guidance and/or OCR's  application of the guidance in practice, strike the right balance with  respect to the factors enunciated in the Department of Justice's  October 26, 2001 memorandum: (1) The number or proportion of limited  English proficient persons, (2) the frequency of contact with the  program, (3) the nature and importance of the program, and (4) the  resources available? Please note that these factors are discussed in  greater detail in the Department of Justice memorandum. In particular,  in considering the resources available, does the guidance and/or OCR's  application of the guidance adequately factor in the costs of providing  translation, interpreter or other language services to limited English  proficient individuals, as well as the resources available to the  recipient/covered entity?     The Department welcomes comments from the public on these and any  other issues related to the guidance. Even if you have commented before  on the guidance, you may have additional comments. In accordance with  the instructions from the Department of Justice, the Department will  review the guidance in light of the public comments received and the  Department of Justice memorandum, and will determine what modifications  to the guidance, if any, are necessary.     The text of the complete guidance document, including appendices,  appears below.      Dated: January 28, 2002. Robinsue Frohboese, Principal Deputy and Acting Director, Office for Civil Rights.  Policy Guidance--Title VI Prohibition Against National Origin  Discrimination as It Affects Persons With Limited English  Proficiency  A. Background      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, however, home to millions of national  origin minority individuals who are ``limited  [[Page 4969]]  English proficient'' (LEP). That is, they cannot speak, read, write or  understand the English language at a level that permits them to  interact effectively with health care providers and social service  agencies. Because of these language differences and their inability to  speak or understand English, LEP persons are often excluded from  programs, experience delays or denials of services, or receive care and  services based on inaccurate or incomplete information.     In the course of its enforcement activities, OCR has found that  persons who lack proficiency in English frequently are unable to obtain  basic knowledge of how to access various benefits and services for  which they are eligible, such as the State Children's Health Insurance  Program (SCHIP), Medicare, Medicaid or Temporary Assistance to Needy  Families (TANF) benefits, clinical research programs, or basic health  care and social services. For example, many intake interviewers and  other front line employees who interact with LEP individuals are  neither bilingual nor trained in how to properly serve an LEP person.  As a result, the LEP applicant all too often is either turned away,  forced to wait for substantial periods of time, forced to find his/her  own interpreter who often is not qualified to interpret, or forced to  make repeated visits to the provider's office until an interpreter is  available to assist in conducting the interview.     The lack of language assistance capability among provider agency  employees has especially adverse consequences in the area of  professional staff services, such as health services. Doctors, nurses,  social workers, psychologists, and other professionals provide vitally  important services whose very nature requires the establishment of a  close relationship with the client or patient that is based on empathy,  confidence and mutual trust. Such intimate personal relationships  depend heavily on the free flow of communication between professional  and client. This essential exchange of information is difficult when  the two parties involved speak different languages; it may be impeded  further by the presence of an unqualified third person who attempts to  serve as an interpreter.     Some health and social service providers have sought to bridge the  language gap by encouraging language minority clients to provide their  own interpreters as an alternative to the agency's use of qualified  bilingual employees or interpreters. Persons of limited English  proficiency must sometimes rely on their minor children to interpret  for them during visits to a health or social service facility.  Alternatively, these clients may be required to call upon neighbors or  even strangers they encounter at the provider's office to act as  interpreters or translators.     These practices have severe drawbacks and may violate Title VI of  the Civil Rights Act of 1964. In each case, the impediments to  effective communication and adequate service are formidable. The  client's untrained ``interpreter'' is often unable to understand the  concepts or official terminology he or she is being asked to interpret  or translate. Even if the interpreter possesses the necessary language  and comprehension skills, his or her mere presence may obstruct the  flow of confidential information to the provider. This is because the  client would naturally be reluctant to disclose or discuss intimate  details of personal and family life in front of the client's child or a  complete stranger who has no formal training or obligation to observe  confidentiality.     When these types of circumstances are encountered, the level and  quality of health and social services available to persons of limited  English proficiency stand in stark conflict to Title VI's promise of  equal access to federally assisted programs and activities. Services  denied, delayed or provided under adverse circumstances have serious  and sometimes life threatening consequences for an LEP person and  generally will constitute discrimination on the basis of national  origin, in violation of Title VI. Accommodation of these language  differences through the provision of effective language assistance will  promote compliance with Title VI. Moreover, by ensuring accurate client  histories, better understanding of exit and discharge instructions, and  better assurances of informed consent, providers will better protect  themselves against tort liability, malpractice lawsuits, and charges of  negligence.     Although OCR's enforcement authority derives from Title VI, the  duty of health and human service providers to ensure that LEP persons  can meaningfully access programs and services flows from a host of  additional sources, including federal and state laws and regulations,  managed care contracts, and health care accreditation organizations.\1\  In addition, the duty to provide appropriate language assistance to LEP  individuals is not limited to the health and human service context.  Numerous federal laws require the provision of language assistance to  LEP individuals seeking to access critical services and activities. For  instance, the Voting Rights Act bans English-only elections in certain  circumstances and outlines specific measures that must be taken to  ensure that language minorities can participate in elections. See 42  U.S.C. Section 1973 b(f)(1). Similarly, the Food Stamp Act of 1977  requires states to provide written and oral language assistance to LEP  persons under certain circumstances. 42 U.S.C. Section 2020(e)(1) and  (2). These and other provisions reflect the sound judgment that  providers of critical services and benefits bear the responsibility for  ensuring that LEP individuals can meaningfully access their programs  and services. ---------------------------------------------------------------------------      \1\ A description of these requirements is included as Appendix  B to this policy guidance. ---------------------------------------------------------------------------      OCR issued internal guidance to its staff in January 1998 on a  recipient's obligation to provide language assistance to LEP persons.  That guidance was intended to ensure consistency in OCR's investigation  of LEP cases. This current guidance clarifies for recipient/covered  entities and the public, the legal requirements under Title VI that OCR  has been enforcing for the past 30 years.     This policy guidance is consistent with a Department of Justice  (DOJ) directive noting that recipient/covered entities have an  obligation pursuant to Title VI's prohibition against national origin  discrimination to provide oral and written language assistance to LEP  persons.\2\ It is also consistent with a government-wide Title VI  regulation issued by DOJ in 1976, ``Coordination of Enforcement of  Nondiscrimination in Federally Assisted Programs,'' 28 CFR part 42,  subpart F, that addresses the circumstances in which recipient/covered  entities must provide written language assistance to LEP persons.\3\ ---------------------------------------------------------------------------      \2\ The DOJ directive has been issued contemporaneously with  this policy guidance.     \3\ The DOJ coordination regulations at 28 CFR Section  42.405(d)(1) provide that ``[w]here 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.'' ---------------------------------------------------------------------------  B. Legal Authority  1. Introduction     Over the last 30 years, OCR has conducted thousands of  investigations and reviews involving language  [[Page 4970]]  differences that impede the access of LEP persons to medical care and  social services. Where the failure to accommodate language differences  discriminates on the basis of national origin, OCR has required  recipient/covered entities to provide appropriate language assistance  to LEP persons. For instance, OCR has entered into voluntary compliance  agreements and consent decrees that require recipients who operate  health and social service programs to ensure that there are bilingual  employees or language interpreters to meet the needs of LEP persons  seeking services. OCR has also required these recipient/covered  entities to provide written materials and post notices in languages  other than English. See Mendoza v. Lavine, 412 F.Supp. 1105 (S.D.N.Y.  1976); and Asociacion Mixta Progresista v. H.E.W., Civil Number C72-882  (N.D. Cal. 1976). The legal authority for OCR's enforcement actions is  Title VI of the Civil Rights Act of 1964, the implementing regulations,  and a consistent body of case law. The legal authority is described  below. 2. Statute and Regulation     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.'' Regulations implementing Title VI, provide in  part at 45 CFR Section 80.3 (b):      (1) A recipient under any program to which this part applies may  not, directly or through contractual or other arrangements, on  ground 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, 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 with respect to  individuals of a particular race, color or national origin.  (emphasis added). 3. Case Law     Extensive case law affirms the obligation of recipients of federal  financial assistance to ensure that LEP persons can meaningfully access  federal-assisted programs.     The U.S. Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974),  recognized that recipients of Federal financial assistance have an  affirmative responsibility, pursuant to Title VI, to provide LEP  persons with meaningful opportunity to participate in public programs.  In Lau v. Nichols, the 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.     The Lau decision affirmed the U.S. Department of Health, Education  and Welfare's Policy Memorandum issued on May 25, 1970, titled  ``Identification of Discrimination and the Denial of Services on the  Basis of National Origin,'' 35 FR 11,595. The memorandum states in  part: ``Where the inability to speak and understand the English  language excludes national origin minority group children from  effective participation in the educational program offered by a school  district, the district must take affirmative steps to rectify the  language deficiency in order to open its instructional program to these  students.''     As early as 1926, the Supreme Court recognized that language rules  were often discriminatory. In Yu Cong Eng et.al. v. Trinidad, Collector  of Internal Revenue, 271 U.S. 500 (1926), the Supreme Court found that  a Philippine Bookkeeping Act that prohibited the keeping of accounts in  languages other than English, Spanish and Philippine dialects violated  the Philippine Bill of Rights that Congress had patterned after the  U.S. Constitution. The Court found that the Act deprived Chinese  merchants, who were unable to read, write or understand the required  languages, of liberty and property without due process.     In Gutierrez v. Municipal Court of S.E. Judicial District, 838 F.2d  1031,1039 (9th Cir. 1988), vacated as moot, 490 U.S. 1016 (1989), the  court recognized that requiring the use of English only is often used  to mask national origin discrimination. Citing McArthur, Worried About  Something Else, 60 Int'l J. Soc. Language, 87, 90-91 (1986), the court  stated that because language and accents are identifying  characteristics, rules that have a negative effect on bilingual  persons, individuals with accents, or non-English speakers may be mere  pretexts for intentional national origin discrimination.     Another case that noted the link between language and national  origin discrimination is Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980)  cert. denied, 449 U.S. 1113 (1981). The court found that on the facts  before it a workplace English-only rule did not discriminate on the  basis of national origin since the complaining employees were  bilingual. However, the court stated that ``to a person who speaks only  one tongue or to a person who has difficulty using another language  other than the one spoken in his home, language might well be an  immutable characteristic like skin color, sex or place of birth.'' Id.  At 269.     The Fifth Circuit addressed language as an impermissible barrier to  participation in society in U.S. v. Uvalde Consolidated Independent  School District, 625 F2d 547 (5th Cir. 1980). The court upheld an  amendment to the Voting Rights Act which addressed concerns about  language minorities, the protections they were to receive, and  eliminated discrimination against them by prohibiting English-only  elections.     Most recently, the Eleventh Circuit in Sandoval v. Hagan, 197 F. 3d  484 (11th Cir. 1999), petition for cert. filed, May 30, 2000, 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. The court specifically noted the nexus between language policies  and potential discrimination based on national origin. That is, in  Sandoval, the vast majority of individuals who were adversely affected  by Alabama's English-only driver's license examination policy were  national origin minorities.     In the health and human service context, a recipient's failure to  provide appropriate language assistance to LEP individuals parallels  many of the fact situations discussed in the cases above and, as in  those cases, may have an adverse effect on the basis of national  origin, in violation of Title VI.     The Title VI regulations prohibit both intentional discrimination  and policies and practices that appear neutral but have a  discriminatory effect. Thus, a recipient/covered entity's policies or  practices regarding the provision of benefits and services to LEP  persons need not be intentional to be discriminatory, but may  constitute a  [[Page 4971]]  violation of Title VI if they have an adverse effect on the ability of  national origin minorities to meaningfully access programs and  services. Accordingly, it is useful for recipient/covered entities to  examine their policies and practices to determine whether they  adversely affect LEP persons. This policy guidance provides a legal  framework to assist recipient/covered entities in conducting such  assessments.  C. Policy Guidance  1. Who Is Covered     All entities that receive Federal financial assistance from HHS,  either directly or indirectly, through a grant, contract or  subcontract, are covered by this policy guidance. Covered entities  include (1) any state or local agency, private institution or  organization, or any public or private individual that (2) operates,  provides or engages in health, or social service programs and  activities and that (3) receives federal financial assistance from HHS  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, public and private contractors,  subcontractors and vendors, physicians, and other providers who receive  Federal financial assistance from HHS.     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. (See, 45 CFR section 80.13(f);  and appendix A to the Title VI regulations, 45 CFR part 80, for  additional discussion of what constitutes Federal financial  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, all  operations of the recipient/covered entity are covered by Title VI, not  just the part of the program that uses the Federal assistance. Thus,  all parts of the recipient's operations would be covered by Title VI,  even if the Federal assistance is used only by one part. 2. Basic Requirements Under Title VI     A recipient/covered entity whose policies, practices or procedures  exclude, limit, or have the effect of excluding or limiting, the  participation of any LEP person in a federally-assisted program on the  basis of national origin may be engaged in discrimination in violation  of Title VI. In order to ensure compliance with Title VI, recipient/ covered entities must take steps to ensure that LEP persons who are  eligible for their programs or services have meaningful access to the  health and social service benefits that they provide. The most  important step in meeting this obligation is for recipients of Federal  financial assistance such as grants, contracts, and subcontracts to  provide the language assistance necessary to ensure such access, at no  cost to the LEP person.     The type of language assistance a recipient/covered entity provides  to ensure meaningful access will depend on a variety of factors,  including the size of the recipient/covered entity, the size of the  eligible LEP population it serves, the nature of the program or  service, the objectives of the program, the total resources available  to the recipient/covered entity, the frequency with which particular  languages are encountered, and the frequency with which LEP persons  come into contact with the program. There is no ``one size fits all''  solution for Title VI compliance with respect to LEP persons. OCR will  make its assessment of the language assistance needed to ensure  meaningful access on a case by case basis, and a recipient/covered  entity will have considerable flexibility in determining precisely how  to fulfill this obligation. OCR will focus on the end result--whether  the recipient/covered entity has taken the necessary steps to ensure  that LEP persons have meaningful access to its programs and services.     The key to providing meaningful access for LEP persons is to ensure  that the recipient/covered entity and LEP person can communicate  effectively. The steps taken by a covered entity must ensure that the  LEP person is given adequate information, is able to understand the  services and benefits available, and is able to receive those for which  he or she is eligible. The covered entity must also ensure that the LEP  person can effectively communicate the relevant circumstances of his or  her situation to the service provider.     In enforcing Title VI and its application to LEP persons over the  last 30 years, OCR has found that effective language assistance  programs usually contain the four elements described in section three  below. In reviewing complaints and conducting compliance reviews, OCR  will consider a program to be in compliance when the recipient/covered  entity effectively incorporates and implements these four elements. The  failure to incorporate or implement one or more of these elements does  not necessarily mean noncompliance with Title VI, and OCR will review  the totality of the circumstances to determine whether LEP persons can  meaningfully access the services and benefits of the recipient/covered  entity. 3. Ensuring Meaningful Access to LEP Persons (a) Introduction--The Four Keys to Title VI Compliance in the LEP  Context     The key to providing meaningful access to benefits and services for  LEP persons is to ensure that the language assistance provided results  in accurate and effective communication between the provider and LEP  applicant/client about the types of services and/or benefits available  and about the applicant's or client's circumstances. Although HHS  recipients have considerable flexibility in fulfilling this obligation,  OCR has found that effective programs usually have the following four  elements:  --Assessment--The recipient/covered entity conducts a thorough  assessment of the language needs of the population to be served; --Development of Comprehensive Written Policy on Language Access--The  recipient/covered entity develops and implements a comprehensive  written policy that will ensure meaningful communication; --Training of Staff--The recipient/covered entity takes steps to ensure  that staff understands the policy and is capable of carrying it out;  and --Vigilant Monitoring--The recipient/covered entity conducts regular  oversight of the language assistance program to ensure that LEP persons  meaningfully access the program.     The failure to implement one or more of these measures does not  necessarily mean noncompliance with Title VI, and OCR will review the  totality of the circumstances in each case. If implementation of one or  more of these options would be so financially burdensome as to defeat  the legitimate objectives of a recipient/covered entity's program, or  if there are equally effective alternatives for ensuring that LEP  [[Page 4972]]  persons have meaningful access to programs and services, OCR will not  find the recipient/covered entity in noncompliance. (b) Assessment     The first key to ensuring meaningful access is for the recipient/ covered entity to assess the language needs of the affected population.  A recipient/covered entity assesses language needs by:      Identifying the non-English languages that are likely to  be encountered in its program and by estimating the number of LEP  persons that are eligible for services and that are likely to be  directly affected by its program. This can be done by reviewing census  data, client utilization data from client files, and data from school  systems and community agencies and organizations;      Identifying the language needs of each LEP patient/client  and recording this information in the client's file;      Identifying the points of contact in the program or  activity where language assistance is likely to be needed;      Identifying the resources that will be needed to provide  effective language assistance;      Identifying the location and availability of these  resources; and      Identifying the arrangements that must be made to access  these resources in a timely fashion. (c) Development of Comprehensive Written Policy on Language Access     A recipient/covered entity can ensure effective communication by  developing and implementing a comprehensive written language assistance  program that includes policies and procedures for identifying and  assessing the language needs of its LEP applicants/clients, and that  provides for a range of oral language assistance options, notice to LEP  persons in a language they can understand of the right to free language  assistance, periodic training of staff, monitoring of the program, and  translation of written materials in certain circumstances.\4\ ---------------------------------------------------------------------------      \4\ The Americans with Disabilities Act and Section 504 of the  Rehabilitation Act of 1973 both provide similar prohibitions against  discrimination on the basis of disability and reqwuire entities to  provide language assistance such as sign language interpreters for  hearing impaired individuals or alternative formats such as braille,  large print or tape for vision impaired individuals. In developing a  comprehensive language assistance program, recipient/covered  entities should be mindful of their responsibilities under the ADA  and Section 504 to ensure access to programs for individuals with  disabilities. ---------------------------------------------------------------------------      (1) Oral Language Interpretation-- In designing an effective  language assistance program, a recipient/covered entity develops  procedures for obtaining and providing trained and competent  interpreters and other oral language assistance services, in a timely  manner, by taking some or all of the following steps:      Hiring bilingual staff who are trained and competent in  the skill of interpreting;      Hiring staff interpreters who are trained and competent in  the skill of interpreting;      Contracting with an outside interpreter service for  trained and competent interpreters;      Arranging formally for the services of voluntary community  interpreters who are trained and competent in the skill of  interpreting;      Arranging/contracting for the use of a telephone language  interpreter service. See Section 3(e)(2) for a discussion on  ``Competence of Interpreters.''     The following provides guidance to recipient/covered entities in  determining which language assistance options will be of sufficient  quantity and quality to meet the needs of their LEP beneficiaries:     Bilingual Staff--Hiring bilingual staff for patient and client  contact positions facilitates participation by LEP persons. However,  where there are a variety of LEP language groups in a recipient's  service area, this option may be insufficient to meet the needs of all  LEP applicants and clients. Where this option is insufficient to meet  the needs, the recipient/covered entity must provide additional and  timely language assistance. Bilingual staff must be trained and must  demonstrate competence as interpreters.     Staff Interpreters--Paid staff interpreters are especially  appropriate where there is a frequent and/or regular need for  interpreting services. These persons must be competent and readily  available.     Contract Interpreters--The use of contract interpreters may be an  option for recipient/covered entities that have an infrequent need for  interpreting services, have less common LEP language groups in their  service areas, or need to supplement their in-house capabilities on an  as-needed basis. Such contract interpreters must be readily available  and competent.     Community Volunteers--Use of community volunteers may provide  recipient/covered entities with a cost-effective method for providing  interpreter services. However, experience has shown that to use  community volunteers effectively, recipient/covered entities must  ensure that formal arrangements for interpreting services are made with  community organizations so that these organizations are not subjected  to ad hoc requests for assistance. In addition, recipient/covered  entities must ensure that these volunteers are competent as  interpreters and understand their obligation to maintain client  confidentiality. Additional language assistance must be provided where  competent volunteers are not readily available during all hours of  service.     Telephone Interpreter Lines--A telephone interpreter service line  may be a useful option as a supplemental system, or may be useful when  a recipient/covered entity encounters a language that it cannot  otherwise accommodate. Such a service often offers interpreting  assistance in many different languages and usually can provide the  service in quick response to a request. However, recipient/covered  entities should be aware that such services may not always have readily  available interpreters who are familiar with the terminology peculiar  to the particular program or service. It is important that a recipient/ covered entity not offer this as the only language assistance option  except where other language assistance options are unavailable (e.g.,  in a rural clinic visited by an LEP patient who speaks a language that  is not usually encountered in the area).     (2) Translation of Written Materials--An effective language  assistance program ensures that written materials that are routinely  provided in English to applicants, clients and the public are available  in regularly encountered languages other than English. It is  particularly important to ensure that vital documents, such as  applications, consent forms, letters containing important information  regarding participation in a program (such as a cover letter outlining  conditions of participation in a Medicaid managed care program),  notices pertaining to the reduction, denial or termination of services  or benefits, of the right to appeal such actions or that require a  response from beneficiaries, notices advising LEP persons of the  availability of free language assistance, and other outreach materials  be translated into the non-English language of each regularly  encountered LEP group eligible to be served or likely to be directly  affected by the recipient/covered entity's program. However, OCR  recognizes that each federally-funded health and social service program  has unique characteristics. Therefore, OCR will collaborate with  respective HHS agencies in determining which documents and information  are deemed to be vital.  [[Page 4973]]      As part of its overall language assistance program, a recipient  must develop and implement a plan to provide 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. 28 CFR Section  42.405(d)(1). OCR will determine the extent of the recipient/covered  entity's obligation to provide written translation of documents on a  case by case basis, taking into account all relevant circumstances,  including the nature of the recipient/covered entity's services or  benefits, the size of the recipient/covered entity, the number and size  of the LEP language groups in its service area, the nature and length  of the document, the objectives of the program, the total resources  available to the recipient/covered entity, the frequency with which  translated documents are needed, and the cost of translation.     One way for a recipient/covered entity to know with greater  certainty that it will be found in compliance with its obligation to  provide written translations in languages other than English is for the  recipient/covered entity to meet the guidelines outlined in paragraphs  (A) and (B) below.     Paragraphs (A) and (B) outline the circumstances that provide a  ``safe harbor'' for recipient/covered entities. A recipient/covered  entity that provides written translations under these circumstances can  be confident that it will be found in compliance with its obligation  under Title VI regarding written translations.\5\ However, the failure  to provide written translations under these circumstances outlined in  paragraphs (A) and (B) will not necessarily mean noncompliance with  Title VI. ---------------------------------------------------------------------------      \5\ The ``safe harbor'' provisions in paragraphs (A) and (B)  below are not intended to establish numerical thresholds for when a  recipient must translate documents. The numbers and percentages  included in these provisions are based on the balancing of a number  of factors, including OCR's experience in enforcing Title VI in the  context of health and human services programs, and OCR's discussions  with other Department agencies about experiences of their grant  recipient/covered entities with language access issues. ---------------------------------------------------------------------------      In such circumstances, OCR will review the totality of the  circumstances to determine the precise nature of a recipient/covered  entity's obligation to provide written materials in languages other  than English. If written translation of a certain document or set of  documents would be so financially burdensome as to defeat the  legitimate objectives of its program, or if there is an alternative  means of ensuring that LEP persons have meaningful access to the  information provided in the document (such as timely, effective oral  interpretation of vital documents), OCR will not find the translation  of written materials necessary for compliance with Title VI.     OCR will consider a recipient/covered entity to be in compliance  with its Title VI obligation to provide written materials in non- English languages if:     (A) The recipient/covered entity provides translated written  materials, including vital documents, for each eligible LEP language  group that constitutes ten percent or 3,000, whichever is less, of the  population of persons eligible to be served or likely to be directly  affected by the recipient/covered entity's program; \6\ ---------------------------------------------------------------------------      \6\ As noted above, vital documents include applications,  consent forms, letters containing information regarding eligibility  or participation criteria, and notices pertaining to reduction,  denial or termination of services or benefits, that require a  response from beneficiaries, and/or that advise of free language  assistance. Large documents, such as enrollment handbooks, may not  need to be translated in their entirety. However, vital information  contained in large documents must be translated. ---------------------------------------------------------------------------      (B) Regarding LEP language groups that do not fall within paragraph  (A) above, but constitute five percent or 1,000, whichever is less, of  the population of persons eligible to be served or likely to be  directly affected, the recipient/covered entity ensures that, at a  minimum, vital documents are translated into the appropriate non- English languages of such LEP persons. Translation of other documents,  if needed, can be provided orally; and     (C) Notwithstanding paragraphs (A) and (B) above, a recipient with  fewer than 100 persons in a language group eligible to be served or  likely to be directly affected by the recipient/covered entity's  program, does not translate written materials but provides written  notice in the primary language of the LEP language group of the right  to receive competent oral translation of written materials.     The term ``persons eligible to be served or likely to be directly  affected'' relates to the issue of what is the recipient/covered  entity's service area for purposes of meeting its Title VI obligation.  There is no ``one size fits all'' definition of what constitutes  ``persons eligible to be served or likely to be directly affected'' and  OCR will address this issue on a case by case basis.     Ordinarily, persons eligible to be served or likely to be directly  affected by a recipient's program are those persons who are in the  geographic area that has been approved by a Federal grant agency as the  recipient/covered entity's service area, and who either are eligible  for the recipient/covered entity's benefits or services, or otherwise  might be directly affected by such an entity's conduct. For example, a  parent who might seek services for a child would be seen as likely to  be affected by a recipient/covered entity's policies and practices.  Where no service area has been approved by a Federal grant agency, OCR  will consider the relevant service area for determining persons  eligible to be served as that designated and/or approved by state or  local authorities or designated by the recipient/covered entity itself,  provided that these designations do not themselves discriminatorily  exclude certain populations. OCR may also determine the service area to  be the geographic areas from which the recipient draws, or can be  expected to draw, clients/patients. The following are examples of how  OCR would determine the relevant service areas when assessing who is  eligible to be served or likely to be affected:      A complaint filed with OCR alleges that a private hospital  discriminates against Hispanic and Chinese LEP patients by failing to  provide such persons with language assistance, including written  translations of consent forms. The hospital identifies its service area  as the geographic area identified in its marketing plan. OCR determines  that a substantial number of the hospital's patients are drawn from the  area identified in the marketing plan and that no area with  concentrations of racial, ethnic or other minorities is  discriminatorily excluded from the plan. OCR is likely to accept the  area identified in the marketing plan as the relevant service area.      A state enters into a contract with a managed care plan  for the provision of health services to Medicaid beneficiaries. The  Medicaid managed care contract provides that the plan will serve  beneficiaries in three counties. The contract is reviewed and approved  by HHS. In determining the persons eligible to be served or likely to  be affected, the relevant service area would be that designated in the  contract.     As this guidance notes, Title VI provides that no person may be  denied meaningful access to a recipient/covered entity's benefits and  services, on the basis of national origin. To comply with the Title VI  requirement, a recipient/covered entity must ensure that LEP persons  have meaningful access to and can understand information contained in  program-related written documents. Thus, for  [[Page 4974]]  language groups that do not fall within paragraphs (A) and (B), above,  a recipient can ensure such access by, at a minimum, providing notice,  in writing, in the LEP person's primary language, of the right to  receive free language assistance in a language other than English,  including the right to competent oral translation of written materials,  free of cost.     Recent technological advances have made it easier for recipient/ covered entities to store translated documents readily. At the same  time, OCR recognizes that recipient/covered entities in a number of  areas, such as many large cities, regularly serve LEP persons from many  different areas of the world who speak dozens and sometimes over 100  different languages. It would be unduly burdensome to demand that  recipient/covered entities in these circumstances translate all written  materials into dozens, if not more than 100 languages. As a result, OCR  will determine the extent of the recipient/covered entity's obligation  to provide written translations of documents on a case by case basis,  looking at the totality of the circumstances.\7\ ---------------------------------------------------------------------------      \7\ For instance, a Medicaid managed care program that regularly  encounters, or potentially will encounter on a regular basis, LEP  persons who speak dozens or perhaps over 100 different languages,  would not be required to translate the lengthy program brochure into  every regularly encountered language. Rather, the recipient/covered  entity in these circumstances would likely be required to translate  the written materials into the most frequently encountered  languages. Regarding the remaining regularly encountered languages,  the recipient/covered entity would be required to ensure that the  LEP person receives written notification in the appropriate non- English language of the right to free oral translation of the  written materials. In addition, the recipient/covered entity would  frequently be required to provide written translations of vital  documents that are short in length and pertain to important aspects  of critical programs, such as a cover letter that outlines the terms  and conditions of participation in a Medicaid managed care program,  and/or contains time sensitive information about enrollment or  continued participation. ---------------------------------------------------------------------------      It is also important to ensure that the person translating the  materials is well qualified. In addition, it is important to note that  in some circumstances verbatim translation of materials may not  accurately or appropriately convey the substance of what is contained  in the written materials. An effective way to address this potential  problem is to reach out to community-based organizations to review  translated materials to ensure that they are accurate and easily  understood by LEP persons.     (3) Methods for Providing Notice to LEP Persons--A vital part of a  well-functioning compliance program includes having effective methods  for notifying LEP persons regarding their right to language assistance  and the availability of such assistance free of charge. These methods  include but are not limited to:  --Use of language identification cards which allow LEP beneficiaries to  identify their language needs to staff and for staff to identify the  language needs of applicants and clients. To be effective, the cards  (e.g., ``I speak cards'') must invite the LEP person to identify the  language he/she speaks. This identification must be recorded in the LEP  person's file; --Posting and maintaining signs in regularly encountered languages  other than English in waiting rooms, reception areas and other initial  points of entry. In order to be effective, these signs must inform  applicants and beneficiaries of their right to free language assistance  services and invite them to identify themselves as persons needing such  services; --Translation of application forms and instructional, informational and  other written materials into appropriate non-English languages by  competent translators. For LEP persons whose language does not exist in  written form, assistance from an interpreter to explain the contents of  the document; --Uniform procedures for timely and effective telephone communication  between staff and LEP persons. This must include instructions for  English-speaking employees to obtain assistance from interpreters or  bilingual staff when receiving calls from or initiating calls to LEP  persons; and --Inclusion of statements about the services available and the right to  free language assistance services, in appropriate non-English  languages, in brochures, booklets, outreach and recruitment information  and other materials that are routinely disseminated to the public. (d) Training of Staff     Another vital element in ensuring that its policies are followed is  a recipient/covered entity's dissemination of its policy to all  employees likely to have contact with LEP persons, and periodic  training of these employees. Effective training ensures that employees  are knowledgeable and aware of LEP policies and procedures, are trained  to work effectively with in-person and telephone interpreters, and  understand the dynamics of interpretation between clients, providers  and interpreters. It is important that this training be part of the  orientation for new employees and that all employees in client contact  positions be properly trained. Given the high turnover rate among some  employees, recipient/covered entities may find it useful to maintain a  training registry that records the names and dates of employees'  training. Over the years, OCR has observed that recipient/covered  entities often develop effective language assistance policies and  procedures but that employees are unaware of the policies, or do not  know how to, or otherwise fail to, provide available assistance.  Effective training is one means of ensuring that there is not a gap  between a recipient/covered entity's written policies and procedures,  and the actual practices of employees who are in the front lines  interacting with LEP persons. (e) Monitoring     It is also crucial for a recipient/covered entity to monitor its  language assistance program at least annually to assess the current LEP  makeup of its service area, the current communication needs of LEP  applicants and clients, whether existing assistance is meeting the  needs of such persons, whether staff is knowledgeable about policies  and procedures and how to implement them, and whether sources of and  arrangements for assistance are still current and viable. One element  of such an assessment is for a recipient/covered entity to seek  feedback from clients and advocates. OCR has found that compliance with  the Title VI language assistance obligation is most likely when a  recipient/covered entity continuously monitors its program, makes  modifications where necessary, and periodically trains employees in  implementation of the policies and procedures. 4. OCR's Assessment of Meaningful Access     The failure to take all of the steps outlined in Section C. 3,  above, will not necessarily mean that a recipient/covered entity has  failed to provide meaningful access to LEP clients. As noted above, OCR  will make assessments on a case by case basis and will consider several  factors in assessing whether the steps taken by a recipient/covered  entity provide meaningful access. Those factors include the size of the  recipient/covered entity and of 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 program. The following are examples of  [[Page 4975]]  how meaningful access will be assessed by OCR:  --A physician, a sole practitioner, has about 50 LEP Hispanic patients.  He has a staff of two nurses and a receptionist, derives a modest  income from his practice, and receives Medicaid funds. He asserts that  he cannot afford to hire bilingual staff, contract with a professional  interpreter service, or translate written documents. To accommodate the  language needs of his LEP patients, he has made arrangements with a  Hispanic community organization for trained and competent volunteer  interpreters, and with a telephone interpreter language line, to  interpret during consultations 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. Given the  physician's resources, the size of his staff, and the size of the LEP  population, OCR would find the physician in compliance with Title VI. --A county TANF program, with a large budget, serves 500,000  beneficiaries. Of the beneficiaries eligible for its services, 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  has no policy regarding language assistance to LEP persons, and LEP  clients are told to bring their own interpreters, 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. Given the size of the county  program, its resources, the size of the eligible LEP population, and  the nature of the program, OCR would likely find the county in  violation of Title VI and would likely require it to develop a  comprehensive language assistance program that includes all of the  options discussed in Section C. 3, above. --A large national corporation receives TANF funds from a local welfare  agency to provide computer training to TANF beneficiaries. Of the 2,000  clients that are trained by the corporation each month, approximately  one-third are LEP Hispanic persons. The corporation has made no  arrangements for language assistance and relies on bilingual Hispanic  students in class to help LEP students understand the oral instructions  and the written materials. Based on the size of the welfare agency and  corporation, their budgets, the size of the LEP population, and the  nature of the program, OCR would likely find both the welfare agency  and the corporation in noncompliance with Title VI. The welfare agency  would likely be found in noncompliance for failing to provide LEP  clients meaningful access to its benefits and services through its  contract with the corporation, and for failing to monitor the training  program to ensure that it provided such access. OCR would likely also  find the corporation in noncompliance for failing to provide meaningful  access to LEP clients and would require it to provide them with both  oral and written language assistance. 5. Interpreters     Two recurring issues in the area of interpreter services involve  (a) the use of friends, family, or minor children as interpreters, and  (b) the need to ensure that interpreters are competent, especially in  the area of medical interpretation.     (a) Use of Friends, Family and Minor Children as Interpreters--A  recipient/covered entity may expose itself to liability under Title VI  if it requires, suggests, or encourages an LEP person to use friends,  minor children, or family members as interpreters, as this could  compromise the effectiveness of the service. Use of such persons could  result in a breach of confidentiality or reluctance on the part of  individuals to reveal personal information critical to their  situations. In a medical setting, this reluctance could have serious,  even life threatening, consequences. In addition, family and friends  usually are not competent to act as interpreters, since they are often  insufficiently proficient in both languages, unskilled in  interpretation, and unfamiliar with specialized terminology.     If after a recipient/covered entity informs an LEP person of the  right to free interpreter services, the person declines such services  and requests the use of a family member or friend, the recipient/ covered entity may use the family member or friend, if the use of such  a person would not compromise the effectiveness of services or violate  the LEP person's confidentiality. The recipient/covered entity should  document the offer and declination in the LEP person's file. Even if an  LEP person elects to use a family member or friend, the recipient/ covered entity should suggest that a trained interpreter sit in on the  encounter to ensure accurate interpretation.     (b) Competence of Interpreters--In order to provide effective  services to LEP persons, a recipient/covered entity must ensure that it  uses persons who are competent to provide interpreter services.  Competency does not necessarily mean formal certification as an  interpreter, though certification is helpful. On the other hand,  competency requires more than self-identification as bilingual. The  competency requirement contemplates demonstrated proficiency in both  English and the other language, orientation and training that includes  the skills and ethics of interpreting (e.g. issues of confidentiality),  fundamental knowledge in both languages of any specialized terms, or  concepts peculiar to the recipient/covered entity's program or  activity, sensitivity to the LEP person's culture and a demonstrated  ability to convey information in both languages, accurately. A  recipient/covered entity must ensure that those persons it provides as  interpreters are trained and demonstrate competency as interpreters. 6. Examples of Frequently Encountered Scenarios     Over the course of the past 30 years enforcing Title VI in the LEP  context, OCR has observed a number of recurring problems. The following  are examples of frequently encountered policies and practices that are  likely to violate Title VI:  --A woman is brought to the emergency room of a hospital by her  brother. The hospital has no language assistance services and requires  her brother to interpret for her. She is too embarrassed to discuss her  condition through her brother and leaves without treatment.  Alternatively, she is forced to use her brother as the interpreter, who  is untrained in medical terminology and through whom she refuses to  discuss sensitive information pertaining to her medical condition. --A health clinic uses a Spanish-speaking security guard who has no  training in interpreting skills and is unfamiliar with medical  terminology, as an interpreter for its Hispanic LEP patients. He  frequently relays inaccurate information that results in inaccurate  instructions to patients. --A local welfare office uses a Vietnamese janitor to interpret  whenever Vietnamese applicants or beneficiaries seek services or  benefits. The janitor has been in America for six months, does not  speak English well and is not familiar with the terminology that is  used. He often  [[Page 4976]]  relays inaccurate information that results in the denial of benefits to  clients. --A state welfare agency does not advise a mother of her right to free  language assistance and encourages her to use her eleven year old  daughter to interpret for her. The daughter does not understand the  terminology being used and relays inaccurate information to her mother  whose benefits are jeopardized by the failure to obtain accurate  information. --A medical clinic uses a medical student as an interpreter based on  her self-identification as bilingual. While in college, the student had  spent a semester in Spain as an exchange student. The student speaks  Spanish haltingly and must often ask patients to speak slowly and to  repeat their statements. On several occasions, she has relayed  inaccurate information that has resulted in misdiagnosis. --A managed care plan calls the receptionist at an Ethiopian community  organization whenever it or one of its providers needs the services of  an interpreter for an Ethiopian patient. The plan instructs the  receptionist to send anyone who is available as long as that person  speaks English. Many of the interpreters sent to a provider either do  not understand English well enough to interpret accurately or are  unfamiliar with medical terminology. As a result, clients often  misunderstand their rights and benefits. --A local welfare office forces a Mandarin-speaking client seeking to  apply for SCHIP benefits on behalf of her three year old child to wait  for a number of hours (or tells the client to come back another day) to  receive assistance because it cannot communicate effectively with her,  and has no effective plan for ensuring meaningful communication. This  results in a delay of benefits. --An HMO that enrolls Medicaid beneficiaries instructs a non-English  speaking client to provide his or her own interpreter services during  all office visits. --A health plan requires non-English speaking patients to pay for  interpreter services.  D. Promising Practices      In meeting the needs of their LEP patients and clients, some  recipient/covered entities have found unique ways of providing  interpreter services and reaching out to the LEP community. As part of  its technical assistance, OCR has frequently assisted, and will  continue to assist, recipient/covered entities who are interested in  learning about promising practices in the area of service to LEP  populations. Examples of promising practices include the following:     Simultaneous Translation--One urban hospital is testing a state of  the art medical interpretation system in which the provider and patient  communicate using wireless remote headsets while a trained competent  interpreter, located in a separate room, provides simultaneous  interpreting services to the provider and patient. The interpreter can  be miles away. This reduces delays in the delivery of language  assistance, since the interpreter does not have to travel to the  recipient/covered entity's facility. In addition, a provider that  operates more than one facility can deliver interpreter services to all  facilities using this central bank of interpreters, as long as each  facility is equipped with the proper technology.     Language Banks--In several parts of the country, both urban and  rural, community organizations and providers have created community  language banks that train, hire and dispatch competent interpreters to  participating organizations, reducing the need to have on-staff  interpreters for low demand languages. These language banks are  frequently nonprofit and charge reasonable rates. This approach is  particularly appropriate where there is a scarcity of language  services, or where there is a large variety of language needs.     Language Support Office--A state social services agency has  established an ``Office for Language Interpreter Services and  Translation.'' This office tests and certifies all in-house and  contract interpreters, provides agency-wide support for translation of  forms, client mailings, publications and other written materials into  non-English languages, and monitors the policies of the agency and its  vendors that affect LEP persons.     Multicultural Delivery Project--Another county agency has  established a ``Multicultural Delivery Project'' that is designed to  find interpreters to help immigrants and other LEP persons to navigate  the county health and social service systems. The project uses  community outreach workers to work with LEP clients and can be used by  employees in solving cultural and language issues. A multicultural  advisory committee helps to keep the county in touch with community  needs.     Pamphlets--A hospital has created pamphlets in several languages,  entitled ``While Awaiting the Arrival of an Interpreter.'' The  pamphlets are intended to facilitate basic communication between  inpatients/outpatients and staff. They are not intended to replace  interpreters but may aid in increasing the comfort level of LEP persons  as they wait for services.     Use of Technology--Some recipient/covered entities use their  internet and/or intranet capabilities to store translated documents  online. These documents can be retrieved as needed.     Telephone Information Lines--Recipient/covered entities have  established telephone information lines in languages spoken by  frequently encountered language groups to instruct callers, in the non- English languages, on how to leave a recorded message that will be  answered by someone who speaks the caller's language.     Signage and Other Outreach--Other recipient/covered entities have  provided information about services, benefits, eligibility  requirements, and the availability of free language assistance, in  appropriate languages by (a) posting signs and placards with this  information in public places such as grocery stores, bus shelters and  subway stations; (b) putting notices in newspapers, and on radio and  television stations that serve LEP groups; (c) placing flyers and signs  in the offices of community-based organizations that serve large  populations of LEP persons; and (d) establishing information lines in  appropriate languages.  E. Model Plan      The following is an example of a model language assistance program  that is potentially useful for all recipient/covered entities, but is  particularly appropriate for entities such as hospitals or social  service agencies that serve a significant and diverse LEP population.  This model plan incorporates a variety of options and methods for  providing meaningful access to LEP beneficiaries:      A formal written language assistance program;      Identification and assessment of the languages that are  likely to be encountered and estimating the number of LEP persons that  are eligible for services and that are likely to be affected by its  program through a review of census and client utilization data and data  from school systems and community agencies and organizations;      Posting of signs in lobbies and in other waiting areas, in  several languages, informing applicants and clients of their right to  free interpreter services and inviting them to identify themselves as  persons needing language assistance;      Use of ``I speak'' cards by intake workers and other  patient contact  [[Page 4977]]  personnel so that patients can identify their primary languages;      Requiring intake workers to note the language of the LEP  person in his/her record so that all staff can identify the language  assistance needs of the client;      Employment of a sufficient number of staff, bilingual in  appropriate languages, in patient and client contact positions such as  intake workers, caseworkers, nurses, doctors. These persons must be  trained and competent as interpreters;      Contracts with interpreting services that can provide  competent interpreters in a wide variety of languages, in a timely  manner;      Formal arrangements with community groups for competent  and timely interpreter services by community volunteers;      An arrangement with a telephone language interpreter line;      Translation of application forms, instructional,  informational and other key documents into appropriate non-English  languages. Provision of oral interpreter assistance with documents, for  those persons whose language does not exist in written form;      Procedures for effective telephone communication between  staff and LEP persons, including instructions for English-speaking  employees to obtain assistance from bilingual staff or interpreters  when initiating or receiving calls from LEP persons;      Notice to and training of all staff, particularly patient  and client contact staff, with respect to the recipient/covered  entity's Title VI obligation to provide language assistance to LEP  persons, and on the language assistance policies and the procedures to  be followed in securing such assistance in a timely manner;      Insertion of notices, in appropriate languages, about the  right of LEP applicants and clients to free interpreters and other  language assistance, in brochures, pamphlets, manuals, and other  materials disseminated to the public and to staff;      Notice to the public regarding the language assistance  policies and procedures, and notice to and consultation with community  organizations that represent LEP language groups, regarding problems  and solutions, including standards and procedures for using their  members as interpreters;      Adoption of a procedure for the resolution of complaints  regarding the provision of language assistance; and for notifying  clients of their right to and how to file a complaint under Title VI  with HHS.      Appointment of a senior level employee to coordinate the  language assistance program, and ensure that there is regular  monitoring of the program.  F. Compliance and Enforcement      The recommendations outlined above are not intended to be  exhaustive. Recipient/covered entities have considerable flexibility in  determining how to comply with their legal obligation in the LEP  setting, and are not required to use all of the suggested methods and  options listed. However, recipient/covered entities must establish and  implement policies and procedures for providing language assistance  sufficient to fulfill their Title VI responsibilities and provide LEP  persons with meaningful access to services.     OCR will enforce Title VI as it applies to recipient/covered  entities' responsibilities to LEP persons through the procedures  provided for in the Title VI regulations. These procedures include  complaint investigations, compliance reviews, efforts to secure  voluntary compliance, and technical assistance.     The Title VI regulations provide that OCR will investigate whenever  it receives a complaint, report or other information that alleges or  indicates possible noncompliance with Title VI. If the investigation  results in a finding of compliance, OCR 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, OCR 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, and must attempt to secure voluntary compliance through  informal means. If the matter cannot be resolved informally, OCR must  secure compliance through (a) the termination of Federal assistance  after the recipient/covered entity has been given an opportunity for an  administrative hearing, (b) referral to DOJ for injunctive relief or  other enforcement proceedings, or (c) any other means authorized by  law.     As the Title VI regulations set forth above indicate, OCR 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. OCR 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, OCR  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, by sharing information on  potential community resources, by increasing awareness of emerging  technologies, and by sharing information on how other recipient/covered  entities have addressed the language needs of diverse populations.     OCR will focus its compliance review efforts primarily on larger  recipient/covered entities such as hospitals, managed care  organizations, state agencies, and social service organizations, that  have a significant number or percentage of LEP persons eligible to be  served, or likely to be directly affected, by the recipient/covered  entity's program. Generally, it has been the experience of OCR that in  order to ensure compliance with Title VI, these recipient/covered  entities will be expected to utilize a wider range of the language  assistance options outlined in section C. 3, above.     The fact that OCR is focusing its investigative resources on larger  recipient/covered entities with significant numbers or percentages of  LEP persons likely to be served or directly affected does not mean that  other recipient/covered entities are relieved of their obligation under  Title VI, or will not be subject to review by OCR. In fact, OCR has a  legal obligation under HHS regulations to promptly investigate all  complaints alleging a violation of Title VI. All recipient/covered  entities must take steps to overcome language differences that result  in barriers and provide the language assistance needed to ensure that  LEP persons have meaningful access to services and benefits. However,  smaller recipient/covered entities--such as sole practitioners, those  with more limited resources, and recipient/covered entities who serve  small numbers of LEP persons on an infrequent basis--will have more  flexibility in meeting their obligations to ensure meaningful access  for LEP persons.     In determining a recipient/covered entity's compliance with Title  VI, OCR's primary concern is to ensure that the recipient/covered  entity's policies and procedures overcome barriers resulting from  language differences that would deny LEP persons a meaningful  opportunity to participate in and access programs, services and  benefits. A recipient/covered entity's appropriate  [[Page 4978]]  use of the methods and options discussed in this policy guidance will  be viewed by OCR as evidence of a recipient/covered entity's  willingness to comply voluntarily with its Title VI obligations.  G. Technical Assistance      Over the past 30 years, OCR has provided substantial technical  assistance to recipient/covered entities, and will continue to be  available to provide such assistance to any recipient/covered entity  seeking to ensure that it operates an effective language assistance  program. In addition, during its investigative process, OCR is  available to provide technical assistance to enable recipient/covered  entities to come into voluntary compliance.  H. Attachments      Appendix A is a summary, in question and answer format, of a number  of the critical elements of this guidance. The purpose of the summary  is to assist recipient/covered entities further in understanding this  guidance and their obligations under Title VI to ensure meaningful  access to LEP persons. Appendix B is a list of numerous provisions,  including but not limited to Federal and state laws and regulations,  requiring the provision of language assistance to LEP persons in  various circumstances. This list is not exhaustive, and is not limited  to the health and human service context.  Appendix A: Questions and Answers Regarding the Office for Civil  Rights Policy Guidance on the Title VI Prohibition Against National  Origin Discrimination as it Affects Persons With Limited English  Proficiency  1. Q. What Is the Purpose of the Guidance on Language Access  Released by the Office for Civil Rights (OCR) of the U.S.  Department of Health and Human Services (HHS)?      A. The purpose of the Policy Guidance is two-fold: First, to  clarify the responsibilities of providers of health and social  services who receive Federal financial assistance from HHS, 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 second, to clarify to members of the public that  health and social service providers must ensure that LEP persons  have meaningful access to their programs and services.  2. Q. What Does the Policy Guidance Do?      A. The policy guidance does the following:      Reiterates the principles of Title VI with respect to  LEP persons.      Discusses the policies, procedures and other steps that  recipients can take to ensure meaningful access to their program by  LEP persons.      Clarifies that failure to take one or more of these  steps does not necessarily mean noncompliance with Title VI.      Provides that OCR will determine compliance on a case  by case basis, and that such assessments will take into account the  size of the recipient, the size of the LEP population, the nature of  the program, the resources available, and the frequency of use by  LEP persons.      Provides that small providers and recipient/covered  entities with limited resources, will have a great deal of  flexibility in achieving compliance.      Provides that OCR will provide extensive technical  assistance as needed by recipient/covered entities.  3. Q. Does the Guidance Impose New Requirements on Recipient/ Covered Entities?      A. No. Since its enactment, Title VI of the Civil Rights Act of  1964 has prohibited discrimination on the basis of race, color or  national origin in any program or activity that receives federal  financial assistance. In order to avoid violating Title VI,  recipient/covered entities must ensure that they provide LEP persons  meaningful opportunity to participate in their programs, services  and benefits. Over the past three decades, OCR has conducted  thousands of investigations and reviews involving language  differences that affect the access of LEP persons to medical care  and social services. Where such language differences prevent  meaningful access on the basis of national origin, the law requires  that recipient/covered entities provide oral and written language  assistance at no cost to the recipient. This guidance synthesizes  the legal requirements that have been on the books and that OCR has  been enforcing for over three decades.  4. Q. Who Is Covered by the Guidance?      A. Covered entities include any state or local agency, private  institution or organization, or any public or private individual  that (1) operates, provides or engages in health, or social service  programs and activities, and (2) receives Federal financial  assistance from HHS directly or through another recipient/covered  entity. Examples of covered entities include but are not limited to  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;  public and private contractors, subcontractors and vendors;  physicians; and other providers who receive Federal financial  assistance from HHS.  5. Q. How Does the Guidance Affect Small Practitioners and  Providers?      A. The key to providing meaningful access for LEP persons is to  ensure that the relevant circumstances of the LEP person's situation  can be effectively communicated to the service provider and the LEP  person is able to understand the services and benefits available and  is able to receive those services and benefits for which he or she  is eligible in a timely manner. Small practitioners and providers  will have considerable flexibility in determining precisely how to  fulfill their obligations to ensure meaningful access for persons  with limited English proficiency. OCR will assess compliance on a  case by case basis and will take into account the size of the  recipient/covered entity, the size of the eligible LEP population it  serves, the nature of the program or service, the objectives of the  program, the total resources available to the recipient/covered  entity, the frequency with which languages are encountered and the  frequency with which LEP persons come into contact with the program.  There is no ``one size fits all'' solution for Title VI compliance  with respect to LEP persons.     In other words, OCR will focus on the end result, that is,  whether the small practitioner or provider has taken steps, given  the factors that will be considered by OCR, to ensure that the LEP  persons have access to the programs and services provided by the  physician. OCR will continue to be available to provide technical  assistance to any physician seeking to ensure that s/he operates an  effective language assistance program.     For example: A physician, a sole practitioner, has about 50 LEP  Hispanic patients. He has a staff of two nurses and a receptionist  derives a modest income from his practice, and receives Medicaid  funds. He asserts that he cannot afford to hire bilingual staff,  contract with a professional interpreter service, or translate  written documents. To accommodate the language needs of his LEP  patients he has made arrangements with a Hispanic community  organization for trained and competent volunteer interpreters and  with a telephone interpreter language line, to interpret during  consultations 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. Given the physician's  resources, the size of his staff, and the size of the LEP  population, OCR would find the physician in compliance with Title  VI.  6. Q. The Guidance Identifies Some Specific Circumstances Under  Which OCR Will Consider a Program To Be in Compliance With Its  Obligation Under Title VI To Provide Written Materials in Languages  Other Than English. Does This Mean That a Recipient/Covered Entity  Will Be Considered Out of Compliance With Title VI if Its Program  Does Not Fall Within These Circumstances?      A. No. The circumstances outlined in the guidance are intended  to provide a ``safe harbor'' for recipients who desire greater  certainty with respect to their obligations to provide written  translations. Thus, a recipient/covered entity whose policies and  practices fall within these circumstances can be confident that,  with respect to written translations, it will be found in compliance  with Title VI. However, the failure to fall within the ``safe  harbors'' outlined in the guidance does not necessarily mean that a  recipient/covered entity is not in compliance with Title VI. In such  circumstances, OCR will review the totality of circumstances to  determine the precise nature of a recipient/covered entity's  obligation to provide written materials in languages other than  English. If  [[Page 4979]]  translation of a certain document or set of documents would be so  financially burdensome as to defeat the legitimate objectives of its  program, or if there is an alternative means of ensuring that LEP  persons have meaningful access to the information provided in the  document (such as timely, effective oral interpretation of vital  documents), OCR will likely not find the translation necessary for  compliance with Title VI.  7. Q. The Guidance Makes Reference to ``Vital Documents'' and Notes  That, in Certain Circumstances, a Recipient/Covered Entity May Have  To Translate Such Documents Into Other Languages. What Is a Vital  Document?      A. Given the wide array of programs and activities receiving HHS  financial assistance, we do not attempt to identify vital documents  and information with specificity in each program area. Rather, a  document or information should be considered vital if it contains  information that is critical for accessing the federal fund  recipient's services and/or benefits, or is required by law. Thus,  vital documents include, but are not limited to, applications,  consent forms, letters and notices pertaining to the reduction,  denial or termination of services or benefits, letters or notices  that require a response from the beneficiary or client, and  documents that advise of free language assistance. OCR will also  collaborate with respective HHS agencies in determining which  documents and information are deemed to be vital within a particular  program.  8. Q. Will Recipient/Covered Entities Have To Translate Large  Documents Such as Managed Care Enrollment Handbooks?      A. Not necessarily. As part of its overall language assistance  program, a recipient must develop and implement a plan to provide  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. OCR will assess the need for written  translation of documents and vital information contained in larger  documents on a case by case basis, taking into account all relevant  circumstances, including the nature of the recipient/covered  entity's services or benefits, the size of the recipient/covered  entity, the number and size of the LEP language groups in its  service area, the nature and length of the document, the objectives  of the program, the total resources available to the recipient/ covered entity, the frequency which particular languages are  encountered and the frequency with which translated documents are  needed and the cost of translation. Depending on these  circumstances, large documents, such as enrollment handbooks, may  not need to be translated or may not need to be translated in their  entirety. For example, a recipient/covered entity may be required to  provide written translations of vital information contained in  larger documents, but may not have to translate the entire document,  to meet its obligations under Title VI.  9. Q. May a Recipient/Covered Entity Require an LEP Person To Use a  Family Member or a Friend as His or Her Interpreter?      A. No. OCR's policy requires the recipient/covered entity to  inform the LEP person of the right to receive free interpreter  services first and permits the use of family and friends only after  such offer of assistance has been declined and documented. Our  policy regarding the use of family and friends as interpreters is  based on over three decades of experience with Title VI. Although  OCR recognizes that some individuals may be uncomfortable having a  stranger serve as an interpreter, especially when the situation  involves the discussion of very personal or private matters, it is  our experience that family and friends frequently are not competent  to act as interpreters, since they may be insufficiently proficient  in both languages, untrained and unskilled as interpreters, and  unfamiliar with specialized terminology. Use of such persons also  may result in breaches of confidentiality or reluctance on the part  of the individual to reveal personal information critical to their  situations. These concerns are even more pronounced when the family  member called upon to interpret is a minor. In other words, when  family and friends are used, there is a grave risk that  interpretation may not be accurate or complete. In medical settings,  in particular, this can result in serious, even life threatening  consequences.  10. Q. How Does Low Health Literacy, Non-Literacy, Non-Written  Languages, Blindness and Deafness Among LEP Populations Affect the  Responsibilities of Federal Fund Recipients?      A. Effective communication in any language requires an  understanding of the literacy levels of the eligible populations.  However, literacy generally is a program operations issue rather  than a Title VI issue. Where a LEP individual has a limited  understanding of health matters or cannot read, access to the  program is complicated by factors not directly related to national  origin or language. Under these circumstances, a recipient/covered  entity should provide remedial health information to the same extent  that it would provide such information to English-speakers.  Similarly, a recipient/covered entity should assist LEP individuals  who cannot read in understanding written materials as it would non- literate English-speakers. A non-written language precludes the  translation of documents, but does not affect the responsibility of  the recipient to communicate the vital information contained in the  document or to provide notice of the availability of oral  translation. Section 504 of the Rehabilitation Act of 1973 requires  that federal fund recipients provide sign language and oral  interpreters for people who have hearing impairments and provide  materials in alternative formats such as in large print, braille or  on tape for individuals with impairments. The Americans with  Disabilities Act imposes similar requirements on health and human  service providers.  11. Q. Can OCR Provide Help to Recipient/Covered Entities Who Wish  To Come Into Compliance With Title VI?      A. Absolutely. For over three decades, OCR has provided  substantial technical assistance to recipient/covered entities who  are seeking to ensure that LEP persons can meaningfully access their  programs or services. Our regional staff is prepared to work with  recipients to help them meet their obligations under Title VI. As  part of its technical assistance services, OCR can help identify  best practices and successful strategies used by other federal fund  recipients, identify sources of federal reimbursement for  translation services, and point providers to other resources.  12. Q. How Will OCR Enforce Compliance by Recipient/Covered  Entities With the LEP Requirements of Title VI?      A. OCR will enforce Title VI as it applies to recipient/covered  entities through the procedures provided for in the Title VI  regulations. The Title VI regulations provide that OCR will  investigate whenever it receives a complaint, report, or other  information that alleges or indicates possible noncompliance with  Title VI. If the investigation results in a finding of compliance,  OCR 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, OCR 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. By regulation, OCR  must attempt to secure voluntary compliance through informal means.  In practice, OCR has been quite successful in securing voluntary  compliance and will continue these efforts. If the matter cannot be  resolved informally, OCR must secure compliance through (a) the  termination of Federal assistance after the recipient/covered entity  has been given an opportunity for an administrative hearing, (b)  referral to DOJ for injunctive relief or other enforcement  proceedings, or (c) any other means authorized by law.  13. Q. Does Issuing This Guidance Mean That OCR Will Be Changing  How it Enforces Compliance With Title VI?      A. No. How OCR enforces Title VI is governed by the Title VI  implementing regulations. The methods and procedures used to  investigate and resolve complaints, and conduct compliance reviews,  have not changed.  14. Q. What Is HHS Doing To Ensure It Is Following the Guidance It  Is Giving to States and Others?      A. Although legally, federally conducted programs and activities  are not subject to Title VI, HHS recognizes the importance of  ensuring that its programs and services are accessible to LEP  persons. To this end, HHS has established a working group to assess  how HHS itself is providing language access. Currently, agencies  across HHS have taken a number of important steps to ensure that  their programs and services are accessible to  [[Page 4980]]  LEP persons. For example, a number of agencies have translated  important consumer materials into languages other than English.  Also, several agencies have launched Spanish language web sites. In  order to ensure that all HHS federally conducted programs and  activities are accessible to LEP persons, the Secretary has directed  the working group to develop and implement a Department-wide plan  for ensuring LEP persons meaningful access to HHS programs. This  internal HHS initiative was begun prior to the President's August  11, 2000, Executive Order 13166, ``Improving Access to Services for  Persons with Limited English Proficiency''. The Executive Order  requires Federal Agencies to develop and implement a system for  ensuring LEP persons meaningful access to their federally-conducted  programs. It also requires agencies to issue guidance to their  recipients on the recipients' obligations to provide LEP persons  meaningful access to their federally-assisted programs. HHS is a  step ahead on each of the obligations outlined in the Executive  Order.  Appendix B: Selected Federal and State Laws and Regulations  Requiring Language Assistance  Federal Laws and Regulations      Federal laws that recognize the need for language assistance  include:     1. The Voting Rights Act, which bans English-only elections and  prescribes other remedial devices to ensure nondiscrimination  against language minorities; \1\ ---------------------------------------------------------------------------      \1\ 42 U.S.C. Section 1973 b(f)(1). ---------------------------------------------------------------------------      2. The Food Stamp Act of 1977, which requires states to provide  written and oral language assistance to LEP persons under certain  circumstances; \2\ ---------------------------------------------------------------------------      \2\ 7 U.S.C. Section 2020(e)(1) and (2)(A). ---------------------------------------------------------------------------      3. Judicial procedure laws that require the use of certified or  otherwise qualified interpreters for LEP parties and witnesses, at  the government's expense, in certain proceedings; \3\ ---------------------------------------------------------------------------      \3\ 28 U.S.C. Section 1827(d)(1)(a). ---------------------------------------------------------------------------      4. The Older Americans Act, which requires state planning  agencies to use outreach workers who are fluent in the languages of  older LEP persons, where there is a substantial number of such  persons in a planning area; \4\ ---------------------------------------------------------------------------      \4\ 42 U.S.C. Section 3027(a)(20)(A). ---------------------------------------------------------------------------      5. The Substance Abuse and Mental Health Administration  Reorganization Act, which requires services provided with funds  under the statute to be bilingual if appropriate; \5\ ---------------------------------------------------------------------------      \5\ 42 U.S.C. Section 290aa(d)(14). ---------------------------------------------------------------------------      6. The Disadvantaged Minority Health Improvement Act, which  requires the Office of Minority Health (OMH) to enter into contracts  to increase the access of LEP persons to health care by developing  programs to provide bilingual or interpreter services; \6\ ---------------------------------------------------------------------------      \6\ 42 U.S.C. Section 300u-6(b)(7). ---------------------------------------------------------------------------      7. The Equal Educational Opportunities Act of 1974, which  requires educational agencies to take appropriate action to  accommodate the language differences that impede equal participation  by students in instructional programs; \7\ and ---------------------------------------------------------------------------      \7\ 20 U.S.C. Section 1703(f). ---------------------------------------------------------------------------      8. Regulations issued by the Health Care Financing  Administration (HCFA) which require that evaluations for the  mentally ill and mentally retarded be adapted to the cultural  background, language, ethnic origin and means of communication of  the person being evaluated.\8\ ---------------------------------------------------------------------------      \8\ 42 C.F.R. Section 483.128(b). ---------------------------------------------------------------------------  State Laws and Regulations      Many states have recognized the seriousness of the language  access challenge and have enacted laws that require providers to  offer language assistance to LEP persons in many service  settings.\9\ States that require language assistance include: ---------------------------------------------------------------------------      \9\ At least twenty six (26) states and the District of Columbia  have enacted legislation requiring language assistance, such as  interpreters and/or translated forms and other written materials,  for LEP persons. ---------------------------------------------------------------------------      1. California, which provides that intermediate care facilities  must use interpreters and other methods to ensure adequate  communication between staff and patients; \10\ ---------------------------------------------------------------------------      \10\ 22 California Code of Regulations, Section 73501.  California has a wide array of other laws and regulations that  require language assistance, including those that require: (a)  Intermediate nursing facilities to use interpreters and other  methods to ensure adequate communications with patients, (b) adult  day care centers to employ ethnic and linguistic staff as indicated  by participant characteristics, (c) certified interpreters for non- English speaking persons at administrative hearings, and (d) health  licensing agencies to translate patients rights information into  every language spoken by 1% or more of the nursing home population. ---------------------------------------------------------------------------      2. New Jersey, which provides that drug and alcohol treatment  facilities must provide interpreter services if their patient  population is non-English speaking; \11\ ---------------------------------------------------------------------------      \11\ New Jersey Administrative Code Section 42A-6.7. ---------------------------------------------------------------------------      3. Pennsylvania, which provides that a patient who does not  speak English should have access, where possible, to an interpreter;  \12\ and ---------------------------------------------------------------------------      \12\ 28 Pennsylvania Administrative Code Section 103.22(b)(14). ---------------------------------------------------------------------------      4. Massachusetts, which in April 2000, enacted legislation that  requires every acute care hospital to provide competent interpreter  services to LEP patients in connection with all emergency room  services.\13\ ---------------------------------------------------------------------------      \13\ M.G.L.A. 111, Section 25J. ---------------------------------------------------------------------------  Medical Accreditation Organizations      1. The Joint Committee on Accreditation of Healthcare  Organizations (JCAHO), which accredits hospitals and other health  care institutions, requires language assistance in a number of  situations. For example, its accreditation manual for hospitals  provides that written notice of patients' rights must be appropriate  to the patient's age, understanding and language.\14\ ---------------------------------------------------------------------------      \14\ JCAHO, 1997 Accreditation Manual for Hospitals, Section  R1.1.4. ---------------------------------------------------------------------------      2. The National Committee for Quality Assurance (NCQA), which  provides accreditation for managed care organizations, also requires  language assistance in a variety of settings. As part of its  evaluation process, the NCQA assesses managed care member materials  to determine whether they are available in languages, other than  English, spoken by major population groups. October 26, 2001.  Memorandum for Heads of Departments and Agencies General Counsels and  Civil Rights Directors  From: Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights  Division  Subject: Executive Order 13166 (Improving Access to Services for  Persons with Limited English Proficiency)     Federal agencies have recently raised several questions  regarding the requirements of Executive Order 13166. This Memorandum  responds to those questions. As discussed below, in view of the  clarifications provided in this Memorandum, agencies that have  issued Limited English Proficiency (``LEP'') guidance for their  recipients pursuant to Executive Order 113166 and Title VI of the  Civil Rights Act should, after notifying the Department of Justice  (``DOJ''), publish a notice asking for public comment on the  guidance documents they have issued. Based on the public comment it  receives and this Memorandum, an agency may need to clarify or  modify its existing guidance to the Department of Justice. Following  approval by the Department of Justice and before finalizing its  guidance, each agency should obtain public comment on their proposed  guidance documents. With regard to plans for federally conducted  programs and activities, agencies should review their plans in light  of the clarifications provided below.  Background of Executive Order 13166      The legal basis for Executive Order 13166 is explained in 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 F.R. 50123 (August 16, 2000). This ``DOJ LEP Guidance'' was  referenced in and issued concurrently with the Executive Order.     As the DOJ LEP Guidance details, Title VI of the Civil Rights  Act of 1964 prohibits discrimination on the basis of race, color, or  national origin in any program or activity receiving federal  financial assistance. Department of Justice regulations enacted to  effectuate this prohibition bar recipients of federal financial  assistance 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. These regulations  thus prohibit unjustified disparate impact on the basis of national  origin.     As applied, the regulations have been interpreted to require  foreign language assistance in certain circumstances. For instance,  where a San Francisco school district had a large number of non- English speaking students of Chinese origin, it was required to take  reasonable steps to provide them with a meaningful opportunity to  participate in federally funded educational  [[Page 4981]]  programs. Lau v. Nichols, 414 U.S. 563 (1974)\1\ ---------------------------------------------------------------------------      \1\ ``It seems obvious that the Chinese-speaking minority  receive fewer benefits than the English-speaking majority from  respondents' school system which denies them a meaningful  opportunity to participate in the education program--all earmarks of  the discrimination banned by the regulations.'' 414 U.S. at 568. ---------------------------------------------------------------------------      The Supreme Court most recently addressed the scope of the Title  VI disparate impact regulations in Alexander v. Sandoval, 121 S. Ct.  1511 (2001). There, the Court held that there is no private right of  action to enforce these regulations. It ruled that, even if the  Alabama Department of Public Safety's policy of administering  driver's license examinations only in English violates the Title VI  regulations, a private party could not bring a case to enjoin  Alabama's policy. some have interpreted Sandoval as impliedly  striking down Title VI's disparate impact regulations and thus that  part of Executive Order 13166 that applies to federally assisted  programs and activities.\2\ ---------------------------------------------------------------------------      \2\ See Sandoval, 121 S. Ct. at 1519 n.6 (``[W]e assume for  purposes of this decision that Sec. 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 Department of Justice disagrees. Sandoval holds principally  that there is no private right of action to enforce the Title VI  disparate impact regulations. It did not address the validity of  those regulations or Executive Order 13166. Because the legal basis  for Executive Order 13166 is the Title VI disparate impact  regulations and because Sandoval did not invalidate those  regulations, it is the position of the Department of Justice that  the Executive Order remains in force.  Requirements of Executive Order 13166      Federally Assisted Programs and Activities. The DOJ LEP Guidance  explains that, with respect to federally assisted programs and  activities, Executive Order 13166 ``does not create new obligations,  but rather, clarifies existing Title VI responsibilities.'' Its  purpose is to clarify for federal-funds recipients the steps those  recipients can take to avoid administering programs in a way that  results in discrimination on the basis of national origin in  violation of the Title VI disparate impact regulations. To this end,  the Order requires each Federal Agency providing federal financial  assistance to explain to recipients of federal funds their  obligations under the Title VI disparate impact regulations.     In developing their own LEP guidance for recipients of federal  funds, an agency should balance the factors set forth in the DOJ LEP  Guidance. These factors include, but are not limited to (i) the  number or proportion of LEP individuals, (ii) the frequency of  contact with the program, (iii) the nature and importance of the  program, and (iv) the resources available.     As the DOJ LEP Guidance explains, ``a factor in determining the  reasonableness of a recipient's efforts is the number or proportion  of people who will be excluded from the benefits or services absent  efforts to remove language barriers.'' Similarly, the frequency of  contact must be considered. Where the frequency and number of  contacts is so small as to preclude any significant national origin  based disparate impact, agencies may conclude that the Title VI  disparate impact regulations impose no substantial LEP obligations  on recipients.     The nature and importance of the program is another factor.  Where the denial or delay of access may have life or death  implications, LEP services are of much greater importance than where  denial of access results in mere inconvenience.     Resources available and costs must likewise be weighed. A small  recipient with limited resources may not have to take the same steps  as a larger recipient. See DOJ LEP Guidance at 50125. Costs, too,  must be factored into this balancing test. ``Reasonable steps'' may  cease to be reasonable where the costs imposed substantially exceed  the benefits in light of the factors outlined in the DOJ LEP  Guidance. The DOJ LEP Guidance explains that a small recipient may  not have to take substantial steps ``where contact is infrequent,  where the total costs of providing language services is relatively  high and where the program is not crucial to an individual's day-to- day existence.'' By contrast, where number and frequency of contact  is high, where the total costs for LEP services are reasonable, and  where the lack of access may have life and death implicates, the  availability of prompt LEP services may be critical. In these latter  cases, claims based on lack of resources will need to be well  substantiated.     Finally, consideration of resources available naturally  implicates the ``mix'' of LEP services required. While on-the- premise translators may be needed in certain circumstances, written  translation, access to centralized translation language lines or  other means may be appropriate in the majority of cases. The correct  balance should be based on what is both necessary to eliminate  unjustified disparate impact prohibited by the Title VI regulations  and reasonable in light of the factors outlined in the DOJ LEP  Guidance.     Federally Conducted Programs and Activities. Executive Order  13166 also applies to federally conducted programs and activities.  With respect to these, the Order requires each Federal Agency to  prepare a plan to improve access to federally conducted programs and  activities by eligible LEP persons. These plans, too, must be  consistent with the DOJ LEP Guidance. Federal agencies should apply  the same standards to themselves as they apply to their recipients.  Procedural Considerations      Administrative Procedure Act: Agency action taken pursuant to  Executive Order 13166 and the DOJ LEP Guidance may be subject to the  Administrative Procedure Act's (``APA'') rulemaking requirements. 5  U.S.C. Sec. 553. Although interpretive rules, general statements of  policy, and rules of agency organization and procedure are not  subject to section 553, courts have ruled that any final agency  action that carries the force and effect of law must comply with  section 553's notice and comments requirements. See Paralyzed  Veterans of America v. D. C. Arena, 117 F.3d 579, 588 (D.C. Cir.  1997). Agencies, therefore, should consider whether the action they  have taken or that they propose to take to implement Executive Order  13166 and Title VI of the Civil Rights Act is subject to the APA's  requirements. If it is, they must comply with these statutory  obligations. Agencies must bear in mind, however, that Executive  Order 13166 ``does not create new obligations, but rather, clarifies  existing Title VI responsibilities.'' Accordingly, agency action  taken pursuant to Executive Order 13166 must not impose new  obligations on recipients of federal funds, but should instead help  recipients to understand their existing obligations.     Executive Order 12866: Agency action taken pursuant to Executive  Order 13166 and the DOJ LEP Guidance may also be subject to  requirements set forth in Executive Order 12866 (Regulatory Review  and Planning, Sept. 30, 1993). That Order directs agencies to submit  to the Office of Management and Budget for review any ``significant  regulatory actions'' the agency wishes to take. See Sec. 6(a).  Agencies, therefore, should consider whether the action they have  taken or that they propose to take to implement Executive Order  13166 and Title VI of the Civil Rights Act is subject to Executive  Order 12866's requirements. If it is, they should ensure that the  action or proposed action complies with Executive Order 12866's  obligations. With regard to federally conducted programs and  activities, agencies should review their plans for their federally  conducted programs in light of the clarifications below and make any  necessary modifications.  Further Agency Action      Existing LEP Guidance and Plans for Federally Conducted Programs  and Activities: Agencies that have already published LEP guidance  pursuant to Executive Order 13166 or Title VI of the Civil Rights  Act should obtain public comment on the guidance documents they have  issued. Agencies should then review their existing guidance  documents in view of public comment and for consistency with the  clarifications provided in this Memorandum. The Justice Department's  Civil Rights Division, Federal Coordination and Compliance Section ((202) 307- 2222), is available to assist agencies in making this determination.  Should this review lead an agency to conclude that it is appropriate  to clarify or modify aspects of its LEP guidance documents, it  should notify the Department of Justice of that conclusion within 60  days from the date of this Memorandum. Any agency effort to clarify  or modify existing LEP guidance should be completed within 120 days  from the date of this Memorandum. Agencies likewise should review  plans for federally conducted programs and activities in light of  the above clarification.     New LEP Guidance and Plans for Federally Conducted Programs and  Activities: Agencies that have not yet published LEP guidance  pursuant to Executive Order 13166 and Title VI of the Civil Rights  Act should submit to  [[Page 4982]]  the Department of Justice, within 60 days from the date of this  Memorandum, agency-specific recipient guidance that is consistent  with Executive Order 13166 and the DOJ LEP Guidance, including the  clarifications set forth in this Memorandum. In preparing their  guidance, agencies should ensure that the action they propose to  take is consistent with the requirements of the Administrative  Procedure Act and Executive Order 12866. The Justice Department's  Civil Rights Division, Federal Coordination and Compliance Section, is available  to assist agencies in preparing agency-specific guidance. Following  approval by the Department of Justice and before finalizing its  guidance, each agency should obtain public comment on its proposed  guidance documents. Final agency-specific LEP guidance should be  published within 120 days from the date of this memorandum. Agencies  likewise should submit to the Department of Justice plans for  federally conducted programs and activities. The Department of  Justice is the central repository for these agency plans. * * * * *     Federally assisted programs and activities may not be  administered in a way that violates the Title VI regulations. Each  Federal Agency is responsible for ensuring that its agency-specific  guidance outlines recipients' obligations under the Title VI  regulations and the steps recipients can take to avoid violating  these obligations. While Executive Order 13166 requires only that  Federal Agencies take steps to eliminate recipient discrimination  based on national origin prohibited by Title VI, each Federal Agency  is encouraged to explore whether, as a matter of policy, additional  affirmative outreach to LEP individuals is appropriate. Federal  Agencies likewise must eliminate national origin discrimination in  their own federally conducted programs and activities. The  Department of Justice is available to help agencies in reviewing and  preparing agency-specific LEP guidance and federally conducted  plans.  [FR Doc. 02-2467 Filed 1-31-02; 8:45 am] BILLING CODE 4153-01-P