DOJ Publishes Final Guidance on Providing LEP Persons Access to Services

IMMIGRANTS & PUBLIC BENEFITS

Language Access

DOJ publishes final guidance on providing LEP persons access to services
Immigrants' Rights Update, Web Edition, July 15, 2002

The U.S. Dept. of Justice (DOJ) has published its final guidance to recipients of federal funds on providing limited English-proficient (LEP) persons access to programs and services. Released on June 18, 2002, the guidance was followed by a letter dated July 8 from Assistant Attorney General Ralph Boyd, instructing other federal agencies to use the DOJ's final guidance as a uniform standard in developing their guidance to recipients on access for LEP persons.

The guidance advises local police departments, court systems, correctional facilities, and other recipients of DOJ funding on the actions they should take to provide LEP persons with meaningful access to their activities and programs. The DOJ's guidance was published pursuant to Executive Order 13166 (E.O. 13166), which clarifies the requirements of Title VI of the Civil Rights Act. Title VI prohibits recipients of federal funds from discriminating on the basis of race, color, or national origin. (E.O. 13166 is published at 65 Fed. Reg. 50,121-22 (Aug. 16, 2000).)

The executive order required federal agencies that provide federal financial assistance to develop guidance for funding recipients on providing meaningful access to LEP persons. The order also required the agencies to develop internal plans for providing LEP persons meaningful access to services and programs conducted by the agencies themselves.

On Oct. 26, 2001, the DOJ issued a clarifying memorandum on E.O. 13166 (see "Justice Dept. Confirms Validity of Clinton's Order Regarding Access to Services for Limited English-Proficient Persons," Immigrants' Rights Update, Nov. 16, 2001, p. 14). The memorandum included a four-part analysis that federal funding recipients must use in determining the level of language assistance they are required to provide under Title VI. The DOJ directed federal funds-granting agencies that had published guidance documents to review them with respect to the four-factor test, modify them as indicated, and republish their guidance for public comment. Agencies that had not previously published guidance to their recipients were required to develop guidance and publish it for public comment.

The DOJ published its final guidance following public comment. As with the intermediary versions, the final guidance is framed by the four factors that the DOJ outlined in its October 2001 clarifying memo:

the number or proportion of eligible LEP persons eligible to be served or likely to be encountered by the funding recipient;
the frequency with which LEP individuals come into contact with the recipient's programs;
the nature and importance of the program, activity, or service provided by the program to people's lives; and
the resources available to the recipient and costs of providing language assistance.

The guidance notes that many of the 24 parties that submitted comments during the public comment period advocated for two additional requirements: they urged that recipients be required to have a written LEP plan and that the use of informal interpreters, such as family members and fellow inmates, be prohibited in some circumstances. The DOJ declined to require a written plan or prohibit the use of informal interpreters in any context. However, the guidance has been revised to include a clarification that the use of informal interpreters should not be part of any recipient's LEP plan. It also advises recipients that they "should generally offer competent interpreter services free of cost to the LEP person" where language services are necessary.

The final guidance notes the DOJ's unique responsibility for ensuring consistency among the other agencies' guidance documents. The July 8 letter from Assistant Attorney General Boyd represents a step in the implementation of that responsibility. As noted above, the letter instructs agencies to revise their guidance to be consistent with the final DOJ guidance and states that the DOJ expects to receive draft guidance from other agencies no later than July 29, 2002. Other agencies' guidance documents will require DOJ approval prior to their publication for public comment. Existing guidance will remain in effect until the conformed guidance documents become final.

The DOJ's letter demands a high level of consistency with its guidance. The letter states that other agencies are expected to focus their modifications on the examples provided in the final guidance, rather than the guidance's substantive provisions. Agencies are required to highlight and provide a written justification for any departures from the DOJ's guidance.

The letter also instructs agencies to revise or update their internal plans for ensuring LEP individuals' access to federally conducted programs and services and encourages agencies to become involved with the federal interagency work group on language access, described at www.lep.gov.

"Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons," 67 Fed. Reg. 41,455 (June 18, 2002); letter from Assistant Attorney General Ralph Boyd to Heads of Federal Agencies, General Counsels and Civil Rights Directors, July 8, 2002.