Final Guidance On Access To Services For LEP Persons Published; Comments Sought

IMMIGRANTS & PUBLIC BENEFITS

Language Access

Final guidance on access to services for LEP persons published; comments sought
Immigrants' Rights Update, Vol. 17, Issue 5, September 4, 2003

The U.S. Dept. of Health and Human Services (HHS) has published its final guidance to federal fund recipients on access to programs and services for limited English proficient (LEP) people. Released on Aug. 8, 2003, the guidance became effective immediately, pending modification after HHS receives public comments on it.

The guidance was issued to advise recipients of HHS funds on the actions they should take to provide LEP persons with meaningful access to funding recipients' activities and programs, as required under Title VI of the Civil Rights Act of 1964 (Title VI), which prohibits national origin discrimination by recipients of federal funds. This latest guidance supersedes HHS's guidance on LEP access published Aug. 30, 2000, and was developed to conform with "standard" guidance published by the U.S. Dept. of Justice (DOJ) last year (see "DOJ Publishes Final Guidance on Providing LEP Persons Access to Services," IMMIGRANTS RIGHTS UPDATE, July 29, 2002, p. 16). HHS has disappointed advocates by failing to tailor its guidance by setting higher standards than those in the DOJ guidance. And in some respects, the HHS guidance falls below the minimum standards established by the DOJ. For example, the guidance authorizes HHS funding recipients to refer LEP individuals to other recipients rather than requiring them to provide language assistance services, deletes language requiring recipients to consider the potential for increased contact with LEP persons if they engage in appropriate outreach, and reduces expectations for recipients' development of a written language assistance plan.

HHS funds support a wide range of essential services, including the Temporary Assistance to Needy Families (TANF) program, medical services provided through Medicaid, the State Children's Health Insurance Program (SCHIP) and Medicare, child support enforcement, child abuse and domestic violence prevention, immunization and other public health programs, Head Start, and substance abuse prevention efforts. HHS published the guidance pursuant to Executive Order 13166, which clarifies the requirements of Title VI and requires federal funds-granting agencies to publish guidance to their recipients on the recipients' obligations to LEP persons.

This is the third time HHS has published guidance for public comment. HHS republished its original guidance for additional comment on Feb. 1, 2002, pursuant to instructions in a July 8, 2002, memorandum from the DOJ. On Mar. 14, 2002, the Office of Management and Budget (OMB) issued a report to Congress on the benefits and costs of implementing Executive Order 13166. The OMB report recommended the adoption of uniform guidance across all federal agencies, with flexibility to permit tailoring for each agency's specific requirements. Consistent with this OMB recommendation, the DOJ published LEP guidance for its recipients and instructed other federal agencies to use it as a model for their guidance.

HHS has provided a generous 120-day public comment period to encourage comments from the public and to give funding recipients an opportunity to discuss in their comments their experience with the guidance. Advocates are encouraged to submit comments reaffirming the importance of language assistance for LEP persons. Comments must be submitted on or before Jan. 6, 2004.

68 Fed. Reg. 47311-23 (Aug. 8, 2003).