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 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 and books?
   

   A. Not necessarily. As part of its overall language assistance program, a recipient must develop and implement a plan to provide written materials in languages other than English where a significant number or percentage of the population eligible to be served, or likely to be directly affected by the program, needs services or information in a language other than English to communicate effectively. OCR will assess the need for written translation of documents and vital information contained in larger documents on a case by case basis, taking into account all relevant circumstances, including the nature of the recipient/covered entity's services or benefits, the size of the recipient/covered entity, the number and size of the LEP language groups in its service area, the nature and length of the document, the objectives of the program, the total resources available to the recipient/covered entity, the frequency which particular languages are encountered and the frequency with which translated documents are needed and the cost of translation. Depending on these circumstances, large documents, such as enrollment handbooks, may not need to be translated or may not need to be translated in their entirety. For example, a recipient/covered entity may be required to provide written translations of vital information contained in larger documents, but may not have to translate the entire document, to meet its obligations under Title VI.
   

9. Q. May a recipient/covered entity require an LEP person to use a family member or a friend as his or her interpreter?

   A. No. OCR's policy requires the recipient/covered entity to inform the LEP person of the right to receive free interpreter services first and permits the use of family and friends only after such offer of assistance has been declined and documented. Our policy regarding the use of family and friends as interpreters is based on over three decades of experience with Title VI. Although OCR recognizes that some individuals may be uncomfortable having a stranger serve as an interpreter, especially when the situation involves the discussion of very personal or private matters, it is our experience that family and friends frequently are not competent to act as interpreters, since they may be insufficiently proficient in both languages, untrained and unskilled as interpreters, and unfamiliar with specialized terminology. Use of such persons also may result in breaches of confidentiality or reluctance on the part of the individual to reveal personal information critical to their situations. These concerns are even more pronounced when the family member called upon to interpret is a minor. In other words, when family and friends are used, there is a grave risk that interpretation may not be accurate or complete. In medical settings, in particular, this can result in serious, even life threatening consequences.
   

10. Q. How does low health literacy, non-literacy, non-written languages, blindness and deafness among LEP populations affect the responsibilities of federal fund recipients?



A. Effective communication in any language requires an understanding of the literacy levels of the eligible populations. However, literacy generally is a program operations issue rather than a Title VI issue. Where a LEP individual has a limited understanding of health matters or cannot read, access to the program is complicated by factors not directly related to national origin or language. Under these circumstances, a recipient/covered entity should provide remedial health information to the same extent that it would provide such information to English-speakers. Similarly, a recipient/covered entity should assist LEP individuals who cannot read in understanding written materials as it would non-literate English-speakers. A non-written language precludes the translation of documents, but does not affect the responsibility of the recipient to communicate the vital information contained in the document or to provide notice of the availability of oral translation. Section 504 of the Rehabilitation Act of 1973 requires that federal fund recipients provide sign language and oral interpreters for people who have hearing impairments and provide materials in alternative formats such as in large print, braille or on tape for individuals with impairments. The Americans with Disabilities Act imposes similar requirements on health and human service providers.


11. Q. Can OCR provide help to recipient/covered entities who wish to come into compliance with Title VI?
    

    A. Absolutely. For over three decades, OCR has provided substantial technical assistance to recipient/covered entities who are seeking to ensure that LEP persons can meaningfully access their programs or services. Our regional staff is prepared to work with recipients to help them meet their obligations under Title VI. As part of its technical assistance services, OCR can help identify best practices and successful strategies used by other federal fund recipients, identify sources of federal reimbursement for translation services, and point providers to other resources.
    

12. Q. How will OCR enforce compliance by recipient/covered entities with the LEP requirements of Title VI?
    

    A. OCR will enforce Title VI as it applies to recipient/covered entities through the procedures provided for in the Title VI regulations. The Title VI regulations provide that OCR will investigate whenever it receives a complaint, report, or other information that alleges or indicates possible noncompliance with Title VI. If the investigation results in a finding of compliance, OCR will inform the recipient/covered entity in writing of this determination, including the basis for the determination. If the investigation results in a finding of noncompliance, OCR must inform the recipient/covered entity of the noncompliance through a Letter of Findings that sets out the areas of noncompliance and the steps that must be taken to correct the noncompliance. By regulation, OCR must attempt to secure voluntary compliance through informal means. In practice, OCR has been quite successful in securing voluntary compliance and will continue these efforts. If the matter cannot be resolved informally, OCR must secure compliance through (a) the termination of Federal assistance after the recipient/covered entity has been given an opportunity for an administrative hearing, (b) referral to DOJ for injunctive relief or other enforcement proceedings, or (c) any other means authorized by law.
    

13. Q. Does issuing this guidance mean that OCR will be changing how it enforces compliance with Title VI?
    

    A. No. How OCR enforces Title VI is governed by the Title VI implementing regulations. The methods and procedures used to investigate and resolve complaints, and conduct compliance reviews, have not changed.
    

14. Q. What is HHS doing to ensure it is following the guidance it is giving to States and others?
    

    A. Although legally, federally conducted programs and activities are not subject to Title VI, HHS recognizes the importance of ensuring that its programs and services are accessible to LEP persons. To this end, HHS has established a working group to assess how HHS itself is providing language access. Currently, agencies across HHS have taken a number of important steps to ensure that their programs and services are accessible to 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.