[Federal Register: August 30, 2000 (Volume 65, Number 169)]
[Notices]
[Page 52762-52774]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30au00-97]
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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, HHS.
ACTION: Notice of policy guidance with request for comment.
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SUMMARY: The United States Department of Health and Human Services
(HHS) is publishing policy guidance on Title VI's prohibition against
national origin discrimination as it affects limited English proficient
persons.
DATES: This guidance is effective immediately. Comments must be
submitted on or before October 30, 2000. OCR will review all comments
and will determine what modifications to the policy guidance, if any,
are necessary.
ADDRESSES: Interested persons should submit written comments to Ms.
Carole Brown, Office for Civil Rights, Room 506F, U.S. Department of
Health and Human Services, 200 Independence Avenue, S.W., Washington,
D.C. 20201. Comments may also be submitted by e-mail at
lepcoms@os.dhhs.gov.
FOR FURTHER INFORMATION CONTACT: Carole Brown or Ronald Copeland at the
Office for Civil Rights, Room 506F, U.S. Department of Health and Human
Services, 200 Independence Avenue, S.W., Washington, D.C. 20201,
telephone 202-619-0805 or 202-619-0553; TDD: 1-800-537-7697.
Arrangements to receive the policy in an alternative format may be made
by contacting the named individuals.
SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of 1964, 42
U.S.C. 2000d et. seq. and its implementing regulation at 45 CFR Part 80
provide that no person shall be subjected to discrimination on the
basis of race, color or national origin under any program or activity
that receives Federal financial assistance.
The purpose of this policy guidance is to clarify the
responsibilities of providers of health and social services who receive
Federal financial assistance from the U.S. Department of Health and
Human Services (HHS) (``recipients,'' ``providers'' or ``covered
entities''), and assist them in fulfilling their responsibilities to
Limited English Proficient (LEP) persons, pursuant to Title VI of the
Civil Rights Act of 1964. The policy guidance reiterates HHS'
longstanding position that in order to avoid discrimination against LEP
persons on grounds of national origin, health and social service
providers must take adequate steps to ensure that such persons receive
the language assistance necessary to afford them meaningful access to
their services, free of charge. The guidance also clarifies for health
and social service providers, and members of the public, that a
recipient/covered entity must ensure that eligible LEP persons have
meaningful access to programs and services. The guidance also provides
examples of policies and practices that OCR would find violative of
Title VI, and sets out the policies, procedures and other steps that
recipients can take to ensure meaningful access to their programs by
LEP persons.
The guidance does not impose any new requirements but reiterates
longstanding Title VI principles that OCR has been enforcing for over
30 years. The guidance discusses methods by which recipient/covered
entities can meet their obligation to provide oral interpretation to
LEP persons. The guidance also outlines the general parameters of a
recipient/covered entity's obligation to provide translation of written
materials, providing examples that illustrate both the importance of
such translation and the flexibility that recipients have in meeting
this obligation.
For recipient/covered entities who desire greater certainty in
understanding some specific circumstances under which OCR will find
them in compliance with the obligation to translate written materials,
the guidance contains ``safe harbors.'' A recipient/covered entity that
translates written materials under circumstances outlined in the ``safe
harbor'' provisions will have assurance that OCR will find it in
compliance with its Title VI obligation regarding translation of
written materials. These ``safe harbor'' provisions are not mandatory
requirements and do not establish numerical thresholds that trigger a
requirement for the translation of documents into languages other than
English. They are one way for a recipient/covered entity to be assured
that it has met the obligation to translate. In fact, the guidance
explicitly states that the failure to meet the ``safe harbors'' will
not result in a finding of noncompliance, but that OCR will review a
number of other factors in determining compliance.
During the past 30 years, OCR has provided substantial technical
assistance to recipient/covered entities who were seeking to ensure
that LEP persons can meaningfully access their
[[Page 52763]]
programs or services. This guidance synthesizes that experience so as
to better assist recipient/covered entities in meeting their
responsibilities and also stresses OCR's legal obligation and
commitment to seeking voluntary compliance by recipient/covered
entities and its commitment to providing technical assistance. OCR will
continue to be available to provide such assistance.
This policy guidance addresses situations and issues presented by
HHS-funded health and social service programs and is not necessarily
transferable to other federal programs or contexts.
The text of the guidance appears below. Appendix A to the guidance
is a series of questions and answers that provides a useful summary of
a number of the major aspects of the guidance.
Dated: August 3, 2000.
Thomas E. Perez,
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 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. 1973b(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.
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\1\ A description of these requirements is included as Appendix
B to this policy guidance.
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OCR issued internal guidance to its staff in January 1998 on a
recipient's obligation to provide language assistance to LEP persons.
That
[[Page 52764]]
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 C.F.R. Part 42,
Subpart F, that addresses the circumstances in which recipient/covered
entities must provide written language assistance to LEP persons.\3\
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\2\ The DOJ directive was issued on August 11, 2000.
\3\ The DOJ coordination regulations at 28 C.F.R. 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.''
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B. Legal Authority
1. Introduction
Over the last 30 years, OCR has conducted thousands of
investigations and reviews involving language 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
[[Page 52765]]
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 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
[[Page 52766]]
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
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\
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\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 require 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.
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(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
[[Page 52767]]
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.
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.
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\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.
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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\;
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\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.
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(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 on 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
[[Page 52768]]
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 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\
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\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.
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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.
[[Page 52769]]
(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 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 2000
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
[[Page 52770]]
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 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
[[Page 52771]]
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 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
[[Page 52772]]
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 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 LEP person. 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
[[Page 52773]]
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 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
[[Page 52774]]
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 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\
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\1\ 42 U.S.C. Section 1973b(f)(1).
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2. The Food Stamp Act of 1977, which requires states to provide
written and oral language assistance to LEP persons under certain
circumstances; \2\
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\2\ 7 U.S.C. Section 2020(e)(1) and (2)(A).
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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\
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\3\ 28 U.S.C. Section 1827(d)(1)(A).
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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\
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\4\ 42 U.S.C. Section 3027(a)(20)(A).
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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\
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\5\ 42 U.S.C. Section 290aa(d)(14).
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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\
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\6\ 42 U.S.C. Section 300u-6(b)(7).
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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
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\7\ 20 U.S.C. Section 1703(f).
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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\
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\8\ 42 CFR section 483.128(b).
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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:
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\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.
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1. California, which provides that intermediate care facilities
must use interpreters and other methods to ensure adequate
communication between staff and patients; \10\
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\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 communication 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.
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2. New Jersey, which provides that drug and alcohol treatment
facilities must provide interpreter services if their patient
population in non-English speaking; \11\
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\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
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\12\ 28 Pennsylvania Administrative Code Section 103.22(b)(14).
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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\
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\13\ M.G.L.A. 111, Section 25J
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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\
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\14\ JCAHO, 1997 Accreditation Manual for Hospitals, Section
R1.1.4.
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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.\15\
\15\ NCQA, 1997 Accreditation Standards, RR 6.2.
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[FR Doc. 00-22140 Filed 8-29-00; 8:45 am]
BILLING CODE 4110-60-P