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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
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.
Q. What does the policy guidance do?
A. The policy guidance does the following:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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Date revised: August 29, 2000