Advocates are applauding HHS for issuing the detailed clarification of Title VI compliance, which will be of great help to providers in developing language access policies and plans.  But advocates also are concerned that in many ways the Guidance does not go far enough to mandate language access initiatives by state and local agencies.  It remains to be seen whether the Guidance will reverse the current reactive nature of HHS Title VI enforcement, which is largely driven by complaints filed with the Department by LEP individuals and their advocates.

With its Guidance, HHS is the first agency to implement an Administration-wide initiative which began Aug. 11, 2000, to require all agencies to develop a policy for ensuring linguistic access to federally funded programs and services.  The HHS Guidance is summarized at the end of this e-mail update, and is one of three language access policies recently published by the federal government.  They are:

** Executive Order 13166 of The President, "Improving Access to Services for Persons With Limited English Proficiency, 65 Fed. Reg. 50,121 (Aug. 16, 2000).

** Department of Justice, Civil Rights Division, "Enforcement of Title VI of the civil Rights Act of 1964 – National Origin Discrimination Against Persons With Limited English Proficiency; Policy Guidance, 65 Fed. Reg. 50,123 (Aug. 16, 2000).

** 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," 65 Fed. Reg. 52,762 (Aug. 30, 2000).  Posted on the Office for Civil Rights website.

What follows is a brief summary of the HHS Guidance.  NILC will post this summary, model comments, and other materials on language access on its web site (www.nilc.org).  The NILC web site also will provide links to the web site of the National Health Law Program (NHeLP), and to the government sites where the official documents can be downloaded.  The NHeLP website (www.healthlaw.org) will post a more detailed summary than the one that appears below, and also will post comments on which the NILC comments will be based.

Brief Summary of the HHS Guidance

To comply with Title VI, a program, service or agency (called a "recipient" of federal funds by the Guidance) must provide "meaningful access" at no cost to the LEP individual.  Recipients covered by the Guidance include all public and private entities that receive federal financial assistance from HHS whether through grants, contracts or subcontracts.  Examples of such health and social service entities are hospitals, managed care organizations, state and local welfare agencies, physicians, and research programs.  They include providers of services funded through Medicaid, Temporary Assistance for Needy Families (TANF), the State Children's Health Insurance Program (SCHIP), Head Start, and other programs for families and youth.

To provide meaningful access, the recipient must ensure effective and accurate two-way communication with a person whose English proficiency is limited.  OCR will analyze compliance with this standard through a case-by-case review of the total circumstances, by taking into account:

-- The size of recipient (is it a single physician or a large HMO?)

-- The size of the LEP population (is the LEP individual the only one speaking that language or one of many?)

-- The nature of the program or service (how vital is the service to life, safety and well-being?)

-- The objectives of the program or service (does it purport to serve the public as opposed to, for example, a research grant?)

-- The resources available to recipient (has the recipient researched sources of funding and volunteer assistance?)

-- The frequency with which LEP individuals come into contact with the program or service (does the person have only one contact or many?).

There are four keys to compliance by a recipient:

1.  A needs assessment;

2.  Development of a comprehensive written policy, addressing:

-- Oral interpretation (options include hiring bilingual staff, interpreters, contracting out, arranging for competent volunteers, use of telephone language interpreter services),

-- Translation of written materials,

-- Methods for providing notice to individuals with limited English;

3.  Staff training; and

4.  Monitoring.

Absent an OCR analysis of the total circumstances, failure to implement one or more of the above four keys does not mean Title VI has been violated.  The Guidance details conditions for a "safe harbor" of compliance (recipients will be found in compliance if they meet these standards, but won't necessarily be found out of compliance if they don't).  To meet the safe harbor standards:

A.  Recipients that serve a group of limited-English proficient persons that comprises 10 percent or more of the eligible population in the recipient's service area or 3,000 people (whichever is less) – should translate all written documents.

B.  Recipients serving a language group that comprises at least five percent of their eligible population or 1000 people – should translate "vital documents" (examples are applications, consent forms, legal notices of any kind, and documents that advise people of rights to translation).

C.  Exception:  Recipients with fewer than 100 people in a language group need only provide written notice in a participant's primary language of the right to receive competent oral translation of written materials (even if a particular LEP group meets the five percent or 10 percent threshold).

* Interpreter Standards

Interpretation need not be by a certified interpreter but must be competent and readily available. Competency includes:

-- Demonstrated proficiency in English and in the other language;

-- Orientation and training that includes the skills and ethics of interpreting (including issues of confidentiality);

-- Fundamental knowledge in both languages of specialized terms particular to the program or activity;

-- Sensitivity to the LEP individual's culture; and

-- A demonstrated ability to convey information in both languages accurately.

Use of friends or family, even children, to interpret for the limited-English proficient person is allowed but only if two conditions are met.  The LEP person must prefer to use the friend or family member after being informed of the right to a trained interpreter at no cost, and the interpretation must not compromise the effectiveness of the service or violate confidentiality.

* Promising Practices and Model Plan

The Guidance describes a number of different promising practices that recipients are using to provide effective, efficient linguistic access.  These vary by size and nature of recipient, problem(s) being solved, and geographic area of the U.S. In another section, the Guidance lists 16 possible components of a model plan that include:  a formal written language assistance program; a needs assessment; posting signs notifying the public of rights to an interpreter; use of "I speak" cards; and requiring intake staff to record the primary language of each client in his or her record so that all staff can readily identify the language assistance needs of the client.

* Enforcement

The HHS Office of Civil Rights must endeavor to persuade the recipient to voluntarily comply with Title VI through informal meetings and negotiations before formal enforcement begins, and OCR will provide technical assistance to any program attempting to improve linguistic and cultural access.

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FOR FURTHER INFORMATION, CONTACT:

National Immigration Law Center

Los Angeles Office: 213-639-3900 (general calls and requests for materials)

Washington, D.C. Office: 202-216-0261 (calls regarding policy issues)