[Federal Register Volume 67, Number 22 (Friday, February 1, 2002)]
[Notices]
[Pages 4968-4982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2467]



[[Page 4968]]

-----------------------------------------------------------------------

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

AGENCY: Office for Civil Rights (OCR), HHS.

ACTION: Notice of republication of policy guidance with request for 
comment.

-----------------------------------------------------------------------

SUMMARY: The United States Department of Health and Human Services 
(HHS) is republishing for comment policy guidance on Title VI's 
prohibition against national origin discrimination as it affects 
limited English proficient (LEP) persons.

DATES: The guidance was effective August 30, 2000. Comments must be 
submitted on or before April 2, 2002. OCR will review all comments and 
will determine what modifications to the policy guidance, if any, are 
necessary.

ADDRESSES: Comments should be addressed to Deeana Jang with 
``Attention: LEP Comments,'' and should be sent to 200 Independence 
Avenue, SW. Room 506F, Washington, DC 20201. Comments may also be 
submitted by e-mail at [email protected].

FOR FURTHER INFORMATION CONTACT: Deeana Jang or Ronald Copeland at the 
Office for Civil Rights, Room 506F, U.S. Department of Health and Human 
Services, 200 Independence Avenue, SW., Washington, DC 20201, addressed 
with ``Attention: LEP Comments;'' telephone toll-free number: 1-866-
OCR-7748, or 202-619-0553; TDD: toll-free 1-800-537-7697. Arrangements 
to receive the policy in an alternative format may be made by 
contacting the named individuals.

SUPPLEMENTARY INFORMATION: The United States Department of Health and 
Human Services (HHS) is republishing for comment the policy guidance, 
``Title VI Prohibition Against National Origin Discrimination As It 
Affects Persons With Limited English Proficiency'' (the ``guidance''). 
This guidance was originally published on August 30, 2000, and included 
a 60-day comment period. 65 FR 52762. However, pursuant to a memorandum 
issued by the United States Department of Justice on October 26, 2001, 
HHS is republishing this guidance and inviting public comment on the 
guidance. The United States Department of Justice memorandum is 
attached and can be found at: http://www.usdoj.gov/crt/cor/lep/Oct26Memorandum.htm.
    The Secretary is interested in comments on all aspects of the 
guidance, including comments on the issues listed below. If you are 
raising a concern, please be as specific as possible.
    (1) Have persons with limited English proficiency seeking health 
care or social services benefitted as a result of the guidance? If so, 
what have been the benefits? Please be specific about your experiences.
    (2) Have persons with limited English proficiency faced challenges 
or problems in accessing health care or social services following 
issuance of the guidance? If so, what have been the challenges or 
problems? Please be specific about your experiences.
    (3) Have health care or social services providers faced challenges 
or problems in providing these services to persons with limited English 
proficiency as a result of the guidance? If so, what have been the 
challenges or problems? Please be specific about your experiences. The 
Secretary is particularly interested in the experiences of small 
providers.
    (4) Are there areas of the guidance that you believe need to be 
clarified or modified? If so, please explain what areas, why the 
area(s) need clarification or modification, and provide any suggestions 
for clarification or modification.
    (5) Has the guidance been effective in identifying reasonable ways 
of providing services to individuals with limited English proficiency? 
What are some of the cost-effective ways that are used successfully to 
provide services for persons with limited English proficiency that are 
not included in the guidance? Again, the Secretary is particularly 
interested in the experiences of small providers.
    (6) What technical assistance from the Office for Civil Rights 
(OCR) and other components of HHS would be most helpful to recipients/
covered entities?
    (7) In providing services to persons with limited English 
proficiency, what costs have health care or social services providers 
incurred in providing translation, interpreter, or other language 
services? Please be specific about your experiences. The Secretary is 
particularly interested in the experiences of small providers. If 
health care or social services providers have not yet provided 
translation, interpreter or other language services for persons with 
limited English proficiency, what costs are anticipated? Please provide 
the basis for your estimate.
    (8) Some may assert that the guidance has materially assisted in 
achieving the goal of access to health or social services by limited 
English proficient individuals. Others may assert that the guidance has 
unintentionally had the opposite effect. Is there actual experience to 
support either view? Please describe.
    (9) Based on your experience, does the guidance and/or OCR's 
application of the guidance in practice, strike the right balance with 
respect to the factors enunciated in the Department of Justice's 
October 26, 2001 memorandum: (1) The number or proportion of limited 
English proficient persons, (2) the frequency of contact with the 
program, (3) the nature and importance of the program, and (4) the 
resources available? Please note that these factors are discussed in 
greater detail in the Department of Justice memorandum. In particular, 
in considering the resources available, does the guidance and/or OCR's 
application of the guidance adequately factor in the costs of providing 
translation, interpreter or other language services to limited English 
proficient individuals, as well as the resources available to the 
recipient/covered entity?
    The Department welcomes comments from the public on these and any 
other issues related to the guidance. Even if you have commented before 
on the guidance, you may have additional comments. In accordance with 
the instructions from the Department of Justice, the Department will 
review the guidance in light of the public comments received and the 
Department of Justice memorandum, and will determine what modifications 
to the guidance, if any, are necessary.
    The text of the complete guidance document, including appendices, 
appears below.

    Dated: January 28, 2002.
Robinsue Frohboese,
Principal Deputy and Acting Director, Office for Civil Rights.

Policy Guidance--Title VI Prohibition Against National Origin 
Discrimination as It Affects Persons With Limited English 
Proficiency

A. Background

    English is the predominant language of the United States. According 
to the 1990 Census, English is spoken by 95% of its residents. Of those 
U.S. residents who speak languages other than English at home, the 1990 
Census reports that 57% above the age of four speak English ``well to 
very well.''
    The United States is also, however, home to millions of national 
origin minority individuals who are ``limited

[[Page 4969]]

English proficient'' (LEP). That is, they cannot speak, read, write or 
understand the English language at a level that permits them to 
interact effectively with health care providers and social service 
agencies. Because of these language differences and their inability to 
speak or understand English, LEP persons are often excluded from 
programs, experience delays or denials of services, or receive care and 
services based on inaccurate or incomplete information.
    In the course of its enforcement activities, OCR has found that 
persons who lack proficiency in English frequently are unable to obtain 
basic knowledge of how to access various benefits and services for 
which they are eligible, such as the State Children's Health Insurance 
Program (SCHIP), Medicare, Medicaid or Temporary Assistance to Needy 
Families (TANF) benefits, clinical research programs, or basic health 
care and social services. For example, many intake interviewers and 
other front line employees who interact with LEP individuals are 
neither bilingual nor trained in how to properly serve an LEP person. 
As a result, the LEP applicant all too often is either turned away, 
forced to wait for substantial periods of time, forced to find his/her 
own interpreter who often is not qualified to interpret, or forced to 
make repeated visits to the provider's office until an interpreter is 
available to assist in conducting the interview.
    The lack of language assistance capability among provider agency 
employees has especially adverse consequences in the area of 
professional staff services, such as health services. Doctors, nurses, 
social workers, psychologists, and other professionals provide vitally 
important services whose very nature requires the establishment of a 
close relationship with the client or patient that is based on empathy, 
confidence and mutual trust. Such intimate personal relationships 
depend heavily on the free flow of communication between professional 
and client. This essential exchange of information is difficult when 
the two parties involved speak different languages; it may be impeded 
further by the presence of an unqualified third person who attempts to 
serve as an interpreter.
    Some health and social service providers have sought to bridge the 
language gap by encouraging language minority clients to provide their 
own interpreters as an alternative to the agency's use of qualified 
bilingual employees or interpreters. Persons of limited English 
proficiency must sometimes rely on their minor children to interpret 
for them during visits to a health or social service facility. 
Alternatively, these clients may be required to call upon neighbors or 
even strangers they encounter at the provider's office to act as 
interpreters or translators.
    These practices have severe drawbacks and may violate Title VI of 
the Civil Rights Act of 1964. In each case, the impediments to 
effective communication and adequate service are formidable. The 
client's untrained ``interpreter'' is often unable to understand the 
concepts or official terminology he or she is being asked to interpret 
or translate. Even if the interpreter possesses the necessary language 
and comprehension skills, his or her mere presence may obstruct the 
flow of confidential information to the provider. This is because the 
client would naturally be reluctant to disclose or discuss intimate 
details of personal and family life in front of the client's child or a 
complete stranger who has no formal training or obligation to observe 
confidentiality.
    When these types of circumstances are encountered, the level and 
quality of health and social services available to persons of limited 
English proficiency stand in stark conflict to Title VI's promise of 
equal access to federally assisted programs and activities. Services 
denied, delayed or provided under adverse circumstances have serious 
and sometimes life threatening consequences for an LEP person and 
generally will constitute discrimination on the basis of national 
origin, in violation of Title VI. Accommodation of these language 
differences through the provision of effective language assistance will 
promote compliance with Title VI. Moreover, by ensuring accurate client 
histories, better understanding of exit and discharge instructions, and 
better assurances of informed consent, providers will better protect 
themselves against tort liability, malpractice lawsuits, and charges of 
negligence.
    Although OCR's enforcement authority derives from Title VI, the 
duty of health and human service providers to ensure that LEP persons 
can meaningfully access programs and services flows from a host of 
additional sources, including federal and state laws and regulations, 
managed care contracts, and health care accreditation organizations.\1\ 
In addition, the duty to provide appropriate language assistance to LEP 
individuals is not limited to the health and human service context. 
Numerous federal laws require the provision of language assistance to 
LEP individuals seeking to access critical services and activities. For 
instance, the Voting Rights Act bans English-only elections in certain 
circumstances and outlines specific measures that must be taken to 
ensure that language minorities can participate in elections. See 42 
U.S.C. Section 1973 b(f)(1). Similarly, the Food Stamp Act of 1977 
requires states to provide written and oral language assistance to LEP 
persons under certain circumstances. 42 U.S.C. Section 2020(e)(1) and 
(2). These and other provisions reflect the sound judgment that 
providers of critical services and benefits bear the responsibility for 
ensuring that LEP individuals can meaningfully access their programs 
and services.
---------------------------------------------------------------------------

    \1\ A description of these requirements is included as Appendix 
B to this policy guidance.
---------------------------------------------------------------------------

    OCR issued internal guidance to its staff in January 1998 on a 
recipient's obligation to provide language assistance to LEP persons. 
That guidance was intended to ensure consistency in OCR's investigation 
of LEP cases. This current guidance clarifies for recipient/covered 
entities and the public, the legal requirements under Title VI that OCR 
has been enforcing for the past 30 years.
    This policy guidance is consistent with a Department of Justice 
(DOJ) directive noting that recipient/covered entities have an 
obligation pursuant to Title VI's prohibition against national origin 
discrimination to provide oral and written language assistance to LEP 
persons.\2\ It is also consistent with a government-wide Title VI 
regulation issued by DOJ in 1976, ``Coordination of Enforcement of 
Nondiscrimination in Federally Assisted Programs,'' 28 CFR part 42, 
subpart F, that addresses the circumstances in which recipient/covered 
entities must provide written language assistance to LEP persons.\3\
---------------------------------------------------------------------------

    \2\ The DOJ directive has been issued contemporaneously with 
this policy guidance.
    \3\ The DOJ coordination regulations at 28 CFR Section 
42.405(d)(1) provide that ``[w]here a significant number or 
proportion of the population eligible to be served or likely to be 
directly affected by a federally assisted program (e.g., affected by 
relocation) needs service or information in a language other than 
English in order effectively to be informed of or to participate in 
the program, the recipient shall take reasonable steps, considering 
the scope of the program and the size and concentration of such 
population, to provide information in appropriate languages to such 
persons. This requirement applies with regard to written material of 
the type which is ordinarily distributed to the public.''
---------------------------------------------------------------------------

B. Legal Authority

1. Introduction
    Over the last 30 years, OCR has conducted thousands of 
investigations and reviews involving language

[[Page 4970]]

differences that impede the access of LEP persons to medical care and 
social services. Where the failure to accommodate language differences 
discriminates on the basis of national origin, OCR has required 
recipient/covered entities to provide appropriate language assistance 
to LEP persons. For instance, OCR has entered into voluntary compliance 
agreements and consent decrees that require recipients who operate 
health and social service programs to ensure that there are bilingual 
employees or language interpreters to meet the needs of LEP persons 
seeking services. OCR has also required these recipient/covered 
entities to provide written materials and post notices in languages 
other than English. See Mendoza v. Lavine, 412 F.Supp. 1105 (S.D.N.Y. 
1976); and Asociacion Mixta Progresista v. H.E.W., Civil Number C72-882 
(N.D. Cal. 1976). The legal authority for OCR's enforcement actions is 
Title VI of the Civil Rights Act of 1964, the implementing regulations, 
and a consistent body of case law. The legal authority is described 
below.
2. Statute and Regulation
    Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
Section 2000d et. seq. states: ``No person in the United States shall 
on the ground of race, color or national origin, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any program or activity receiving Federal 
financial assistance.'' Regulations implementing Title VI, provide in 
part at 45 CFR Section 80.3 (b):

    (1) A recipient under any program to which this part applies may 
not, directly or through contractual or other arrangements, on 
ground of race, color, or national origin:
    (i) Deny an individual any service, financial aid, or other 
benefit provided under the program;
    (ii) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under 
any such program or the class of individuals to whom, or the 
situations in which such services, financial aid or other benefits, 
or facilities will be provided * * * may not directly, or through 
contractual or other arrangements, utilize criteria or methods of 
administration which have the effect of subjecting individuals to 
discrimination, because of their race, color or national origin, or 
have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program with respect to 
individuals of a particular race, color or national origin. 
(emphasis added).
3. Case Law
    Extensive case law affirms the obligation of recipients of federal 
financial assistance to ensure that LEP persons can meaningfully access 
federal-assisted programs.
    The U.S. Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974), 
recognized that recipients of Federal financial assistance have an 
affirmative responsibility, pursuant to Title VI, to provide LEP 
persons with meaningful opportunity to participate in public programs. 
In Lau v. Nichols, the Supreme Court ruled that a public school 
system's failure to provide English language instruction to students of 
Chinese ancestry who do not speak English denied the students a 
meaningful opportunity to participate in a public educational program 
in violation of Title VI of the Civil Rights Act of 1964.
    The Lau decision affirmed the U.S. Department of Health, Education 
and Welfare's Policy Memorandum issued on May 25, 1970, titled 
``Identification of Discrimination and the Denial of Services on the 
Basis of National Origin,'' 35 FR 11,595. The memorandum states in 
part: ``Where the inability to speak and understand the English 
language excludes national origin minority group children from 
effective participation in the educational program offered by a school 
district, the district must take affirmative steps to rectify the 
language deficiency in order to open its instructional program to these 
students.''
    As early as 1926, the Supreme Court recognized that language rules 
were often discriminatory. In Yu Cong Eng et.al. v. Trinidad, Collector 
of Internal Revenue, 271 U.S. 500 (1926), the Supreme Court found that 
a Philippine Bookkeeping Act that prohibited the keeping of accounts in 
languages other than English, Spanish and Philippine dialects violated 
the Philippine Bill of Rights that Congress had patterned after the 
U.S. Constitution. The Court found that the Act deprived Chinese 
merchants, who were unable to read, write or understand the required 
languages, of liberty and property without due process.
    In Gutierrez v. Municipal Court of S.E. Judicial District, 838 F.2d 
1031,1039 (9th Cir. 1988), vacated as moot, 490 U.S. 1016 (1989), the 
court recognized that requiring the use of English only is often used 
to mask national origin discrimination. Citing McArthur, Worried About 
Something Else, 60 Int'l J. Soc. Language, 87, 90-91 (1986), the court 
stated that because language and accents are identifying 
characteristics, rules that have a negative effect on bilingual 
persons, individuals with accents, or non-English speakers may be mere 
pretexts for intentional national origin discrimination.
    Another case that noted the link between language and national 
origin discrimination is Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980) 
cert. denied, 449 U.S. 1113 (1981). The court found that on the facts 
before it a workplace English-only rule did not discriminate on the 
basis of national origin since the complaining employees were 
bilingual. However, the court stated that ``to a person who speaks only 
one tongue or to a person who has difficulty using another language 
other than the one spoken in his home, language might well be an 
immutable characteristic like skin color, sex or place of birth.'' Id. 
At 269.
    The Fifth Circuit addressed language as an impermissible barrier to 
participation in society in U.S. v. Uvalde Consolidated Independent 
School District, 625 F2d 547 (5th Cir. 1980). The court upheld an 
amendment to the Voting Rights Act which addressed concerns about 
language minorities, the protections they were to receive, and 
eliminated discrimination against them by prohibiting English-only 
elections.
    Most recently, the Eleventh Circuit in Sandoval v. Hagan, 197 F. 3d 
484 (11th Cir. 1999), petition for cert. filed, May 30, 2000, held that 
the State of Alabama's policy of administering a driver's license 
examination in English only was a facially neutral practice that had an 
adverse effect on the basis of national origin, in violation of Title 
VI. The court specifically noted the nexus between language policies 
and potential discrimination based on national origin. That is, in 
Sandoval, the vast majority of individuals who were adversely affected 
by Alabama's English-only driver's license examination policy were 
national origin minorities.
    In the health and human service context, a recipient's failure to 
provide appropriate language assistance to LEP individuals parallels 
many of the fact situations discussed in the cases above and, as in 
those cases, may have an adverse effect on the basis of national 
origin, in violation of Title VI.
    The Title VI regulations prohibit both intentional discrimination 
and policies and practices that appear neutral but have a 
discriminatory effect. Thus, a recipient/covered entity's policies or 
practices regarding the provision of benefits and services to LEP 
persons need not be intentional to be discriminatory, but may 
constitute a

[[Page 4971]]

violation of Title VI if they have an adverse effect on the ability of 
national origin minorities to meaningfully access programs and 
services. Accordingly, it is useful for recipient/covered entities to 
examine their policies and practices to determine whether they 
adversely affect LEP persons. This policy guidance provides a legal 
framework to assist recipient/covered entities in conducting such 
assessments.

C. Policy Guidance

1. Who Is Covered
    All entities that receive Federal financial assistance from HHS, 
either directly or indirectly, through a grant, contract or 
subcontract, are covered by this policy guidance. Covered entities 
include (1) any state or local agency, private institution or 
organization, or any public or private individual that (2) operates, 
provides or engages in health, or social service programs and 
activities and that (3) 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.
    The term Federal financial assistance to which Title VI applies 
includes but is not limited to grants and loans of Federal funds, 
grants or donations of Federal property, details of Federal personnel, 
or any agreement, arrangement or other contract which has as one of its 
purposes the provision of assistance. (See, 45 CFR section 80.13(f); 
and appendix A to the Title VI regulations, 45 CFR part 80, for 
additional discussion of what constitutes Federal financial 
assistance).
    Title VI prohibits discrimination in any program or activity that 
receives Federal financial assistance. What constitutes a program or 
activity covered by Title VI was clarified by Congress in 1988, when 
the Civil Rights Restoration Act of 1987 (CRRA) was enacted. The CRRA 
provides that, in most cases, when a recipient/covered entity receives 
Federal financial assistance for a particular program or activity, all 
operations of the recipient/covered entity are covered by Title VI, not 
just the part of the program that uses the Federal assistance. Thus, 
all parts of the recipient's operations would be covered by Title VI, 
even if the Federal assistance is used only by one part.
2. Basic Requirements Under Title VI
    A recipient/covered entity whose policies, practices or procedures 
exclude, limit, or have the effect of excluding or limiting, the 
participation of any LEP person in a federally-assisted program on the 
basis of national origin may be engaged in discrimination in violation 
of Title VI. In order to ensure compliance with Title VI, recipient/
covered entities must take steps to ensure that LEP persons who are 
eligible for their programs or services have meaningful access to the 
health and social service benefits that they provide. The most 
important step in meeting this obligation is for recipients of Federal 
financial assistance such as grants, contracts, and subcontracts to 
provide the language assistance necessary to ensure such access, at no 
cost to the LEP person.
    The type of language assistance a recipient/covered entity provides 
to ensure meaningful access will depend on a variety of factors, 
including 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 particular 
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. OCR will 
make its assessment of the language assistance needed to ensure 
meaningful access on a case by case basis, and a recipient/covered 
entity will have considerable flexibility in determining precisely how 
to fulfill this obligation. OCR will focus on the end result--whether 
the recipient/covered entity has taken the necessary steps to ensure 
that LEP persons have meaningful access to its programs and services.
    The key to providing meaningful access for LEP persons is to ensure 
that the recipient/covered entity and LEP person can communicate 
effectively. The steps taken by a covered entity must ensure that the 
LEP person is given adequate information, is able to understand the 
services and benefits available, and is able to receive those for which 
he or she is eligible. The covered entity must also ensure that the LEP 
person can effectively communicate the relevant circumstances of his or 
her situation to the service provider.
    In enforcing Title VI and its application to LEP persons over the 
last 30 years, OCR has found that effective language assistance 
programs usually contain the four elements described in section three 
below. In reviewing complaints and conducting compliance reviews, OCR 
will consider a program to be in compliance when the recipient/covered 
entity effectively incorporates and implements these four elements. The 
failure to incorporate or implement one or more of these elements does 
not necessarily mean noncompliance with Title VI, and OCR will review 
the totality of the circumstances to determine whether LEP persons can 
meaningfully access the services and benefits of the recipient/covered 
entity.
3. Ensuring Meaningful Access to LEP Persons
(a) Introduction--The Four Keys to Title VI Compliance in the LEP 
Context
    The key to providing meaningful access to benefits and services for 
LEP persons is to ensure that the language assistance provided results 
in accurate and effective communication between the provider and LEP 
applicant/client about the types of services and/or benefits available 
and about the applicant's or client's circumstances. Although HHS 
recipients have considerable flexibility in fulfilling this obligation, 
OCR has found that effective programs usually have the following four 
elements:

--Assessment--The recipient/covered entity conducts a thorough 
assessment of the language needs of the population to be served;
--Development of Comprehensive Written Policy on Language Access--The 
recipient/covered entity develops and implements a comprehensive 
written policy that will ensure meaningful communication;
--Training of Staff--The recipient/covered entity takes steps to ensure 
that staff understands the policy and is capable of carrying it out; 
and
--Vigilant Monitoring--The recipient/covered entity conducts regular 
oversight of the language assistance program to ensure that LEP persons 
meaningfully access the program.
    The failure to implement one or more of these measures does not 
necessarily mean noncompliance with Title VI, and OCR will review the 
totality of the circumstances in each case. If implementation of one or 
more of these options would be so financially burdensome as to defeat 
the legitimate objectives of a recipient/covered entity's program, or 
if there are equally effective alternatives for ensuring that LEP

[[Page 4972]]

persons have meaningful access to programs and services, OCR will not 
find the recipient/covered entity in noncompliance.
(b) Assessment
    The first key to ensuring meaningful access is for the recipient/
covered entity to assess the language needs of the affected population. 
A recipient/covered entity assesses language needs by:
     Identifying the non-English languages that are likely to 
be encountered in its program and by estimating the number of LEP 
persons that are eligible for services and that are likely to be 
directly affected by its program. This can be done by reviewing census 
data, client utilization data from client files, and data from school 
systems and community agencies and organizations;
     Identifying the language needs of each LEP patient/client 
and recording this information in the client's file;
     Identifying the points of contact in the program or 
activity where language assistance is likely to be needed;
     Identifying the resources that will be needed to provide 
effective language assistance;
     Identifying the location and availability of these 
resources; and
     Identifying the arrangements that must be made to access 
these resources in a timely fashion.
(c) Development of Comprehensive Written Policy on Language Access
    A recipient/covered entity can ensure effective communication by 
developing and implementing a comprehensive written language assistance 
program that includes policies and procedures for identifying and 
assessing the language needs of its LEP applicants/clients, and that 
provides for a range of oral language assistance options, notice to LEP 
persons in a language they can understand of the right to free language 
assistance, periodic training of staff, monitoring of the program, and 
translation of written materials in certain circumstances.\4\
---------------------------------------------------------------------------

    \4\ The Americans with Disabilities Act and Section 504 of the 
Rehabilitation Act of 1973 both provide similar prohibitions against 
discrimination on the basis of disability and reqwuire entities to 
provide language assistance such as sign language interpreters for 
hearing impaired individuals or alternative formats such as braille, 
large print or tape for vision impaired individuals. In developing a 
comprehensive language assistance program, recipient/covered 
entities should be mindful of their responsibilities under the ADA 
and Section 504 to ensure access to programs for individuals with 
disabilities.
---------------------------------------------------------------------------

    (1) Oral Language Interpretation-- In designing an effective 
language assistance program, a recipient/covered entity develops 
procedures for obtaining and providing trained and competent 
interpreters and other oral language assistance services, in a timely 
manner, by taking some or all of the following steps:
     Hiring bilingual staff who are trained and competent in 
the skill of interpreting;
     Hiring staff interpreters who are trained and competent in 
the skill of interpreting;
     Contracting with an outside interpreter service for 
trained and competent interpreters;
     Arranging formally for the services of voluntary community 
interpreters who are trained and competent in the skill of 
interpreting;
     Arranging/contracting for the use of a telephone language 
interpreter service. See Section 3(e)(2) for a discussion on 
``Competence of Interpreters.''
    The following provides guidance to recipient/covered entities in 
determining which language assistance options will be of sufficient 
quantity and quality to meet the needs of their LEP beneficiaries:
    Bilingual Staff--Hiring bilingual staff for patient and client 
contact positions facilitates participation by LEP persons. However, 
where there are a variety of LEP language groups in a recipient's 
service area, this option may be insufficient to meet the needs of all 
LEP applicants and clients. Where this option is insufficient to meet 
the needs, the recipient/covered entity must provide additional and 
timely language assistance. Bilingual staff must be trained and must 
demonstrate competence as interpreters.
    Staff Interpreters--Paid staff interpreters are especially 
appropriate where there is a frequent and/or regular need for 
interpreting services. These persons must be competent and readily 
available.
    Contract Interpreters--The use of contract interpreters may be an 
option for recipient/covered entities that have an infrequent need for 
interpreting services, have less common LEP language groups in their 
service areas, or need to supplement their in-house capabilities on an 
as-needed basis. Such contract interpreters must be readily available 
and competent.
    Community Volunteers--Use of community volunteers may provide 
recipient/covered entities with a cost-effective method for providing 
interpreter services. However, experience has shown that to use 
community volunteers effectively, recipient/covered entities must 
ensure that formal arrangements for interpreting services are made with 
community organizations so that these organizations are not subjected 
to ad hoc requests for assistance. In addition, recipient/covered 
entities must ensure that these volunteers are competent as 
interpreters and understand their obligation to maintain client 
confidentiality. Additional language assistance must be provided where 
competent volunteers are not readily available during all hours of 
service.
    Telephone Interpreter Lines--A telephone interpreter service line 
may be a useful option as a supplemental system, or may be useful when 
a recipient/covered entity encounters a language that it cannot 
otherwise accommodate. Such a service often offers interpreting 
assistance in many different languages and usually can provide the 
service in quick response to a request. However, recipient/covered 
entities should be aware that such services may not always have readily 
available interpreters who are familiar with the terminology peculiar 
to the particular program or service. It is important that a recipient/
covered entity not offer this as the only language assistance option 
except where other language assistance options are unavailable (e.g., 
in a rural clinic visited by an LEP patient who speaks a language that 
is not usually encountered in the area).
    (2) Translation of Written Materials--An effective language 
assistance program ensures that written materials that are routinely 
provided in English to applicants, clients and the public are available 
in regularly encountered languages other than English. It is 
particularly important to ensure that vital documents, such as 
applications, consent forms, letters containing important information 
regarding participation in a program (such as a cover letter outlining 
conditions of participation in a Medicaid managed care program), 
notices pertaining to the reduction, denial or termination of services 
or benefits, of the right to appeal such actions or that require a 
response from beneficiaries, notices advising LEP persons of the 
availability of free language assistance, and other outreach materials 
be translated into the non-English language of each regularly 
encountered LEP group eligible to be served or likely to be directly 
affected by the recipient/covered entity's program. However, OCR 
recognizes that each federally-funded health and social service program 
has unique characteristics. Therefore, OCR will collaborate with 
respective HHS agencies in determining which documents and information 
are deemed to be vital.

[[Page 4973]]

    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. 28 CFR Section 
42.405(d)(1). OCR will determine the extent of the recipient/covered 
entity's obligation to provide written translation of 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 with which 
translated documents are needed, and the cost of translation.
    One way for a recipient/covered entity to know with greater 
certainty that it will be found in compliance with its obligation to 
provide written translations in languages other than English is for the 
recipient/covered entity to meet the guidelines outlined in paragraphs 
(A) and (B) below.
    Paragraphs (A) and (B) outline the circumstances that provide a 
``safe harbor'' for recipient/covered entities. A recipient/covered 
entity that provides written translations under these circumstances can 
be confident that it will be found in compliance with its obligation 
under Title VI regarding written translations.\5\ However, the failure 
to provide written translations under these circumstances outlined in 
paragraphs (A) and (B) will not necessarily mean noncompliance with 
Title VI.
---------------------------------------------------------------------------

    \5\ The ``safe harbor'' provisions in paragraphs (A) and (B) 
below are not intended to establish numerical thresholds for when a 
recipient must translate documents. The numbers and percentages 
included in these provisions are based on the balancing of a number 
of factors, including OCR's experience in enforcing Title VI in the 
context of health and human services programs, and OCR's discussions 
with other Department agencies about experiences of their grant 
recipient/covered entities with language access issues.
---------------------------------------------------------------------------

    In such circumstances, OCR will review the totality of the 
circumstances to determine the precise nature of a recipient/covered 
entity's obligation to provide written materials in languages other 
than English. If written 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 not find the translation 
of written materials necessary for compliance with Title VI.
    OCR will consider a recipient/covered entity to be in compliance 
with its Title VI obligation to provide written materials in non-
English languages if:
    (A) The recipient/covered entity provides translated written 
materials, including vital documents, for each eligible LEP language 
group that constitutes ten percent or 3,000, whichever is less, of the 
population of persons eligible to be served or likely to be directly 
affected by the recipient/covered entity's program; \6\
---------------------------------------------------------------------------

    \6\ As noted above, vital documents include applications, 
consent forms, letters containing information regarding eligibility 
or participation criteria, and notices pertaining to reduction, 
denial or termination of services or benefits, that require a 
response from beneficiaries, and/or that advise of free language 
assistance. Large documents, such as enrollment handbooks, may not 
need to be translated in their entirety. However, vital information 
contained in large documents must be translated.
---------------------------------------------------------------------------

    (B) Regarding LEP language groups that do not fall within paragraph 
(A) above, but constitute five percent or 1,000, whichever is less, of 
the population of persons eligible to be served or likely to be 
directly affected, the recipient/covered entity ensures that, at a 
minimum, vital documents are translated into the appropriate non-
English languages of such LEP persons. Translation of other documents, 
if needed, can be provided orally; and
    (C) Notwithstanding paragraphs (A) and (B) above, a recipient with 
fewer than 100 persons in a language group eligible to be served or 
likely to be directly affected by the recipient/covered entity's 
program, does not translate written materials but provides written 
notice in the primary language of the LEP language group of the right 
to receive competent oral translation of written materials.
    The term ``persons eligible to be served or likely to be directly 
affected'' relates to the issue of what is the recipient/covered 
entity's service area for purposes of meeting its Title VI obligation. 
There is no ``one size fits all'' definition of what constitutes 
``persons eligible to be served or likely to be directly affected'' and 
OCR will address this issue on a case by case basis.
    Ordinarily, persons eligible to be served or likely to be directly 
affected by a recipient's program are those persons who are in the 
geographic area that has been approved by a Federal grant agency as the 
recipient/covered entity's service area, and who either are eligible 
for the recipient/covered entity's benefits or services, or otherwise 
might be directly affected by such an entity's conduct. For example, a 
parent who might seek services for a child would be seen as likely to 
be affected by a recipient/covered entity's policies and practices. 
Where no service area has been approved by a Federal grant agency, OCR 
will consider the relevant service area for determining persons 
eligible to be served as that designated and/or approved by state or 
local authorities or designated by the recipient/covered entity itself, 
provided that these designations do not themselves discriminatorily 
exclude certain populations. OCR may also determine the service area to 
be the geographic areas from which the recipient draws, or can be 
expected to draw, clients/patients. The following are examples of how 
OCR would determine the relevant service areas when assessing who is 
eligible to be served or likely to be affected:
     A complaint filed with OCR alleges that a private hospital 
discriminates against Hispanic and Chinese LEP patients by failing to 
provide such persons with language assistance, including written 
translations of consent forms. The hospital identifies its service area 
as the geographic area identified in its marketing plan. OCR determines 
that a substantial number of the hospital's patients are drawn from the 
area identified in the marketing plan and that no area with 
concentrations of racial, ethnic or other minorities is 
discriminatorily excluded from the plan. OCR is likely to accept the 
area identified in the marketing plan as the relevant service area.
     A state enters into a contract with a managed care plan 
for the provision of health services to Medicaid beneficiaries. The 
Medicaid managed care contract provides that the plan will serve 
beneficiaries in three counties. The contract is reviewed and approved 
by HHS. In determining the persons eligible to be served or likely to 
be affected, the relevant service area would be that designated in the 
contract.
    As this guidance notes, Title VI provides that no person may be 
denied meaningful access to a recipient/covered entity's benefits and 
services, on the basis of national origin. To comply with the Title VI 
requirement, a recipient/covered entity must ensure that LEP persons 
have meaningful access to and can understand information contained in 
program-related written documents. Thus, for

[[Page 4974]]

language groups that do not fall within paragraphs (A) and (B), above, 
a recipient can ensure such access by, at a minimum, providing notice, 
in writing, in the LEP person's primary language, of the right to 
receive free language assistance in a language other than English, 
including the right to competent oral translation of written materials, 
free of cost.
    Recent technological advances have made it easier for recipient/
covered entities to store translated documents readily. At the same 
time, OCR recognizes that recipient/covered entities in a number of 
areas, such as many large cities, regularly serve LEP persons from many 
different areas of the world who speak dozens and sometimes over 100 
different languages. It would be unduly burdensome to demand that 
recipient/covered entities in these circumstances translate all written 
materials into dozens, if not more than 100 languages. As a result, OCR 
will determine the extent of the recipient/covered entity's obligation 
to provide written translations of documents on a case by case basis, 
looking at the totality of the circumstances.\7\
---------------------------------------------------------------------------

    \7\ For instance, a Medicaid managed care program that regularly 
encounters, or potentially will encounter on a regular basis, LEP 
persons who speak dozens or perhaps over 100 different languages, 
would not be required to translate the lengthy program brochure into 
every regularly encountered language. Rather, the recipient/covered 
entity in these circumstances would likely be required to translate 
the written materials into the most frequently encountered 
languages. Regarding the remaining regularly encountered languages, 
the recipient/covered entity would be required to ensure that the 
LEP person receives written notification in the appropriate non-
English language of the right to free oral translation of the 
written materials. In addition, the recipient/covered entity would 
frequently be required to provide written translations of vital 
documents that are short in length and pertain to important aspects 
of critical programs, such as a cover letter that outlines the terms 
and conditions of participation in a Medicaid managed care program, 
and/or contains time sensitive information about enrollment or 
continued participation.
---------------------------------------------------------------------------

    It is also important to ensure that the person translating the 
materials is well qualified. In addition, it is important to note that 
in some circumstances verbatim translation of materials may not 
accurately or appropriately convey the substance of what is contained 
in the written materials. An effective way to address this potential 
problem is to reach out to community-based organizations to review 
translated materials to ensure that they are accurate and easily 
understood by LEP persons.
    (3) Methods for Providing Notice to LEP Persons--A vital part of a 
well-functioning compliance program includes having effective methods 
for notifying LEP persons regarding their right to language assistance 
and the availability of such assistance free of charge. These methods 
include but are not limited to:

--Use of language identification cards which allow LEP beneficiaries to 
identify their language needs to staff and for staff to identify the 
language needs of applicants and clients. To be effective, the cards 
(e.g., ``I speak cards'') must invite the LEP person to identify the 
language he/she speaks. This identification must be recorded in the LEP 
person's file;
--Posting and maintaining signs in regularly encountered languages 
other than English in waiting rooms, reception areas and other initial 
points of entry. In order to be effective, these signs must inform 
applicants and beneficiaries of their right to free language assistance 
services and invite them to identify themselves as persons needing such 
services;
--Translation of application forms and instructional, informational and 
other written materials into appropriate non-English languages by 
competent translators. For LEP persons whose language does not exist in 
written form, assistance from an interpreter to explain the contents of 
the document;
--Uniform procedures for timely and effective telephone communication 
between staff and LEP persons. This must include instructions for 
English-speaking employees to obtain assistance from interpreters or 
bilingual staff when receiving calls from or initiating calls to LEP 
persons; and
--Inclusion of statements about the services available and the right to 
free language assistance services, in appropriate non-English 
languages, in brochures, booklets, outreach and recruitment information 
and other materials that are routinely disseminated to the public.
(d) Training of Staff
    Another vital element in ensuring that its policies are followed is 
a recipient/covered entity's dissemination of its policy to all 
employees likely to have contact with LEP persons, and periodic 
training of these employees. Effective training ensures that employees 
are knowledgeable and aware of LEP policies and procedures, are trained 
to work effectively with in-person and telephone interpreters, and 
understand the dynamics of interpretation between clients, providers 
and interpreters. It is important that this training be part of the 
orientation for new employees and that all employees in client contact 
positions be properly trained. Given the high turnover rate among some 
employees, recipient/covered entities may find it useful to maintain a 
training registry that records the names and dates of employees' 
training. Over the years, OCR has observed that recipient/covered 
entities often develop effective language assistance policies and 
procedures but that employees are unaware of the policies, or do not 
know how to, or otherwise fail to, provide available assistance. 
Effective training is one means of ensuring that there is not a gap 
between a recipient/covered entity's written policies and procedures, 
and the actual practices of employees who are in the front lines 
interacting with LEP persons.
(e) Monitoring
    It is also crucial for a recipient/covered entity to monitor its 
language assistance program at least annually to assess the current LEP 
makeup of its service area, the current communication needs of LEP 
applicants and clients, whether existing assistance is meeting the 
needs of such persons, whether staff is knowledgeable about policies 
and procedures and how to implement them, and whether sources of and 
arrangements for assistance are still current and viable. One element 
of such an assessment is for a recipient/covered entity to seek 
feedback from clients and advocates. OCR has found that compliance with 
the Title VI language assistance obligation is most likely when a 
recipient/covered entity continuously monitors its program, makes 
modifications where necessary, and periodically trains employees in 
implementation of the policies and procedures.
4. OCR's Assessment of Meaningful Access
    The failure to take all of the steps outlined in Section C. 3, 
above, will not necessarily mean that a recipient/covered entity has 
failed to provide meaningful access to LEP clients. As noted above, OCR 
will make assessments on a case by case basis and will consider several 
factors in assessing whether the steps taken by a recipient/covered 
entity provide meaningful access. Those factors include the size of the 
recipient/covered entity and of the eligible LEP population, the nature 
of the program or service, the objectives of the program, the total 
resources available, the frequency with which particular languages are 
encountered, and the frequency with which LEP persons come into contact 
with the program. The following are examples of

[[Page 4975]]

how meaningful access will be assessed by OCR:

--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 county TANF program, with a large budget, serves 500,000 
beneficiaries. Of the beneficiaries eligible for its services, 3,500 
are LEP Chinese persons, 4,000 are LEP Hispanic persons, 2000 are LEP 
Vietnamese persons and about 400 are LEP Laotian persons. The county 
has no policy regarding language assistance to LEP persons, and LEP 
clients are told to bring their own interpreters, are provided with 
application and consent forms in English and if unaccompanied by their 
own interpreters, must solicit the help of other clients or must return 
at a later date with an interpreter. Given the size of the county 
program, its resources, the size of the eligible LEP population, and 
the nature of the program, OCR would likely find the county in 
violation of Title VI and would likely require it to develop a 
comprehensive language assistance program that includes all of the 
options discussed in Section C. 3, above.
--A large national corporation receives TANF funds from a local welfare 
agency to provide computer training to TANF beneficiaries. Of the 2,000 
clients that are trained by the corporation each month, approximately 
one-third are LEP Hispanic persons. The corporation has made no 
arrangements for language assistance and relies on bilingual Hispanic 
students in class to help LEP students understand the oral instructions 
and the written materials. Based on the size of the welfare agency and 
corporation, their budgets, the size of the LEP population, and the 
nature of the program, OCR would likely find both the welfare agency 
and the corporation in noncompliance with Title VI. The welfare agency 
would likely be found in noncompliance for failing to provide LEP 
clients meaningful access to its benefits and services through its 
contract with the corporation, and for failing to monitor the training 
program to ensure that it provided such access. OCR would likely also 
find the corporation in noncompliance for failing to provide meaningful 
access to LEP clients and would require it to provide them with both 
oral and written language assistance.
5. Interpreters
    Two recurring issues in the area of interpreter services involve 
(a) the use of friends, family, or minor children as interpreters, and 
(b) the need to ensure that interpreters are competent, especially in 
the area of medical interpretation.
    (a) Use of Friends, Family and Minor Children as Interpreters--A 
recipient/covered entity may expose itself to liability under Title VI 
if it requires, suggests, or encourages an LEP person to use friends, 
minor children, or family members as interpreters, as this could 
compromise the effectiveness of the service. Use of such persons could 
result in a breach of confidentiality or reluctance on the part of 
individuals to reveal personal information critical to their 
situations. In a medical setting, this reluctance could have serious, 
even life threatening, consequences. In addition, family and friends 
usually are not competent to act as interpreters, since they are often 
insufficiently proficient in both languages, unskilled in 
interpretation, and unfamiliar with specialized terminology.
    If after a recipient/covered entity informs an LEP person of the 
right to free interpreter services, the person declines such services 
and requests the use of a family member or friend, the recipient/
covered entity may use the family member or friend, if the use of such 
a person would not compromise the effectiveness of services or violate 
the LEP person's confidentiality. The recipient/covered entity should 
document the offer and declination in the LEP person's file. Even if an 
LEP person elects to use a family member or friend, the recipient/
covered entity should suggest that a trained interpreter sit in on the 
encounter to ensure accurate interpretation.
    (b) Competence of Interpreters--In order to provide effective 
services to LEP persons, a recipient/covered entity must ensure that it 
uses persons who are competent to provide interpreter services. 
Competency does not necessarily mean formal certification as an 
interpreter, though certification is helpful. On the other hand, 
competency requires more than self-identification as bilingual. The 
competency requirement contemplates demonstrated proficiency in both 
English and the other language, orientation and training that includes 
the skills and ethics of interpreting (e.g. issues of confidentiality), 
fundamental knowledge in both languages of any specialized terms, or 
concepts peculiar to the recipient/covered entity's program or 
activity, sensitivity to the LEP person's culture and a demonstrated 
ability to convey information in both languages, accurately. A 
recipient/covered entity must ensure that those persons it provides as 
interpreters are trained and demonstrate competency as interpreters.
6. Examples of Frequently Encountered Scenarios
    Over the course of the past 30 years enforcing Title VI in the LEP 
context, OCR has observed a number of recurring problems. The following 
are examples of frequently encountered policies and practices that are 
likely to violate Title VI:

--A woman is brought to the emergency room of a hospital by her 
brother. The hospital has no language assistance services and requires 
her brother to interpret for her. She is too embarrassed to discuss her 
condition through her brother and leaves without treatment. 
Alternatively, she is forced to use her brother as the interpreter, who 
is untrained in medical terminology and through whom she refuses to 
discuss sensitive information pertaining to her medical condition.
--A health clinic uses a Spanish-speaking security guard who has no 
training in interpreting skills and is unfamiliar with medical 
terminology, as an interpreter for its Hispanic LEP patients. He 
frequently relays inaccurate information that results in inaccurate 
instructions to patients.
--A local welfare office uses a Vietnamese janitor to interpret 
whenever Vietnamese applicants or beneficiaries seek services or 
benefits. The janitor has been in America for six months, does not 
speak English well and is not familiar with the terminology that is 
used. He often

[[Page 4976]]

relays inaccurate information that results in the denial of benefits to 
clients.
--A state welfare agency does not advise a mother of her right to free 
language assistance and encourages her to use her eleven year old 
daughter to interpret for her. The daughter does not understand the 
terminology being used and relays inaccurate information to her mother 
whose benefits are jeopardized by the failure to obtain accurate 
information.
--A medical clinic uses a medical student as an interpreter based on 
her self-identification as bilingual. While in college, the student had 
spent a semester in Spain as an exchange student. The student speaks 
Spanish haltingly and must often ask patients to speak slowly and to 
repeat their statements. On several occasions, she has relayed 
inaccurate information that has resulted in misdiagnosis.
--A managed care plan calls the receptionist at an Ethiopian community 
organization whenever it or one of its providers needs the services of 
an interpreter for an Ethiopian patient. The plan instructs the 
receptionist to send anyone who is available as long as that person 
speaks English. Many of the interpreters sent to a provider either do 
not understand English well enough to interpret accurately or are 
unfamiliar with medical terminology. As a result, clients often 
misunderstand their rights and benefits.
--A local welfare office forces a Mandarin-speaking client seeking to 
apply for SCHIP benefits on behalf of her three year old child to wait 
for a number of hours (or tells the client to come back another day) to 
receive assistance because it cannot communicate effectively with her, 
and has no effective plan for ensuring meaningful communication. This 
results in a delay of benefits.
--An HMO that enrolls Medicaid beneficiaries instructs a non-English 
speaking client to provide his or her own interpreter services during 
all office visits.
--A health plan requires non-English speaking patients to pay for 
interpreter services.

D. Promising Practices

    In meeting the needs of their LEP patients and clients, some 
recipient/covered entities have found unique ways of providing 
interpreter services and reaching out to the LEP community. As part of 
its technical assistance, OCR has frequently assisted, and will 
continue to assist, recipient/covered entities who are interested in 
learning about promising practices in the area of service to LEP 
populations. Examples of promising practices include the following:
    Simultaneous Translation--One urban hospital is testing a state of 
the art medical interpretation system in which the provider and patient 
communicate using wireless remote headsets while a trained competent 
interpreter, located in a separate room, provides simultaneous 
interpreting services to the provider and patient. The interpreter can 
be miles away. This reduces delays in the delivery of language 
assistance, since the interpreter does not have to travel to the 
recipient/covered entity's facility. In addition, a provider that 
operates more than one facility can deliver interpreter services to all 
facilities using this central bank of interpreters, as long as each 
facility is equipped with the proper technology.
    Language Banks--In several parts of the country, both urban and 
rural, community organizations and providers have created community 
language banks that train, hire and dispatch competent interpreters to 
participating organizations, reducing the need to have on-staff 
interpreters for low demand languages. These language banks are 
frequently nonprofit and charge reasonable rates. This approach is 
particularly appropriate where there is a scarcity of language 
services, or where there is a large variety of language needs.
    Language Support Office--A state social services agency has 
established an ``Office for Language Interpreter Services and 
Translation.'' This office tests and certifies all in-house and 
contract interpreters, provides agency-wide support for translation of 
forms, client mailings, publications and other written materials into 
non-English languages, and monitors the policies of the agency and its 
vendors that affect LEP persons.
    Multicultural Delivery Project--Another county agency has 
established a ``Multicultural Delivery Project'' that is designed to 
find interpreters to help immigrants and other LEP persons to navigate 
the county health and social service systems. The project uses 
community outreach workers to work with LEP clients and can be used by 
employees in solving cultural and language issues. A multicultural 
advisory committee helps to keep the county in touch with community 
needs.
    Pamphlets--A hospital has created pamphlets in several languages, 
entitled ``While Awaiting the Arrival of an Interpreter.'' The 
pamphlets are intended to facilitate basic communication between 
inpatients/outpatients and staff. They are not intended to replace 
interpreters but may aid in increasing the comfort level of LEP persons 
as they wait for services.
    Use of Technology--Some recipient/covered entities use their 
internet and/or intranet capabilities to store translated documents 
online. These documents can be retrieved as needed.
    Telephone Information Lines--Recipient/covered entities have 
established telephone information lines in languages spoken by 
frequently encountered language groups to instruct callers, in the non-
English languages, on how to leave a recorded message that will be 
answered by someone who speaks the caller's language.
    Signage and Other Outreach--Other recipient/covered entities have 
provided information about services, benefits, eligibility 
requirements, and the availability of free language assistance, in 
appropriate languages by (a) posting signs and placards with this 
information in public places such as grocery stores, bus shelters and 
subway stations; (b) putting notices in newspapers, and on radio and 
television stations that serve LEP groups; (c) placing flyers and signs 
in the offices of community-based organizations that serve large 
populations of LEP persons; and (d) establishing information lines in 
appropriate languages.

E. Model Plan

    The following is an example of a model language assistance program 
that is potentially useful for all recipient/covered entities, but is 
particularly appropriate for entities such as hospitals or social 
service agencies that serve a significant and diverse LEP population. 
This model plan incorporates a variety of options and methods for 
providing meaningful access to LEP beneficiaries:
     A formal written language assistance program;
     Identification and assessment of the languages that are 
likely to be encountered and estimating the number of LEP persons that 
are eligible for services and that are likely to be affected by its 
program through a review of census and client utilization data and data 
from school systems and community agencies and organizations;
     Posting of signs in lobbies and in other waiting areas, in 
several languages, informing applicants and clients of their right to 
free interpreter services and inviting them to identify themselves as 
persons needing language assistance;
     Use of ``I speak'' cards by intake workers and other 
patient contact

[[Page 4977]]

personnel so that patients can identify their primary languages;
     Requiring intake workers to note the language of the LEP 
person in his/her record so that all staff can identify the language 
assistance needs of the client;
     Employment of a sufficient number of staff, bilingual in 
appropriate languages, in patient and client contact positions such as 
intake workers, caseworkers, nurses, doctors. These persons must be 
trained and competent as interpreters;
     Contracts with interpreting services that can provide 
competent interpreters in a wide variety of languages, in a timely 
manner;
     Formal arrangements with community groups for competent 
and timely interpreter services by community volunteers;
     An arrangement with a telephone language interpreter line;
     Translation of application forms, instructional, 
informational and other key documents into appropriate non-English 
languages. Provision of oral interpreter assistance with documents, for 
those persons whose language does not exist in written form;
     Procedures for effective telephone communication between 
staff and LEP persons, including instructions for English-speaking 
employees to obtain assistance from bilingual staff or interpreters 
when initiating or receiving calls from LEP persons;
     Notice to and training of all staff, particularly patient 
and client contact staff, with respect to the recipient/covered 
entity's Title VI obligation to provide language assistance to LEP 
persons, and on the language assistance policies and the procedures to 
be followed in securing such assistance in a timely manner;
     Insertion of notices, in appropriate languages, about the 
right of LEP applicants and clients to free interpreters and other 
language assistance, in brochures, pamphlets, manuals, and other 
materials disseminated to the public and to staff;
     Notice to the public regarding the language assistance 
policies and procedures, and notice to and consultation with community 
organizations that represent LEP language groups, regarding problems 
and solutions, including standards and procedures for using their 
members as interpreters;
     Adoption of a procedure for the resolution of complaints 
regarding the provision of language assistance; and for notifying 
clients of their right to and how to file a complaint under Title VI 
with HHS.
     Appointment of a senior level employee to coordinate the 
language assistance program, and ensure that there is regular 
monitoring of the program.

F. Compliance and Enforcement

    The recommendations outlined above are not intended to be 
exhaustive. Recipient/covered entities have considerable flexibility in 
determining how to comply with their legal obligation in the LEP 
setting, and are not required to use all of the suggested methods and 
options listed. However, recipient/covered entities must establish and 
implement policies and procedures for providing language assistance 
sufficient to fulfill their Title VI responsibilities and provide LEP 
persons with meaningful access to services.
    OCR will enforce Title VI as it applies to recipient/covered 
entities' responsibilities to LEP persons through the procedures 
provided for in the Title VI regulations. These procedures include 
complaint investigations, compliance reviews, efforts to secure 
voluntary compliance, and technical assistance.
    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, and must attempt to secure voluntary compliance through 
informal means. 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.
    As the Title VI regulations set forth above indicate, OCR has a 
legal obligation to seek voluntary compliance in resolving cases and 
cannot seek the termination of funds until it has engaged in voluntary 
compliance efforts and has determined that compliance cannot be secured 
voluntarily. OCR will engage in voluntary compliance efforts, and will 
provide technical assistance to recipients at all stages of its 
investigation. During these efforts to secure voluntary compliance, OCR 
will propose reasonable timetables for achieving compliance and will 
consult with and assist recipient/covered entities in exploring cost 
effective ways of coming into compliance, by sharing information on 
potential community resources, by increasing awareness of emerging 
technologies, and by sharing information on how other recipient/covered 
entities have addressed the language needs of diverse populations.
    OCR will focus its compliance review efforts primarily on larger 
recipient/covered entities such as hospitals, managed care 
organizations, state agencies, and social service organizations, that 
have a significant number or percentage of LEP persons eligible to be 
served, or likely to be directly affected, by the recipient/covered 
entity's program. Generally, it has been the experience of OCR that in 
order to ensure compliance with Title VI, these recipient/covered 
entities will be expected to utilize a wider range of the language 
assistance options outlined in section C. 3, above.
    The fact that OCR is focusing its investigative resources on larger 
recipient/covered entities with significant numbers or percentages of 
LEP persons likely to be served or directly affected does not mean that 
other recipient/covered entities are relieved of their obligation under 
Title VI, or will not be subject to review by OCR. In fact, OCR has a 
legal obligation under HHS regulations to promptly investigate all 
complaints alleging a violation of Title VI. All recipient/covered 
entities must take steps to overcome language differences that result 
in barriers and provide the language assistance needed to ensure that 
LEP persons have meaningful access to services and benefits. However, 
smaller recipient/covered entities--such as sole practitioners, those 
with more limited resources, and recipient/covered entities who serve 
small numbers of LEP persons on an infrequent basis--will have more 
flexibility in meeting their obligations to ensure meaningful access 
for LEP persons.
    In determining a recipient/covered entity's compliance with Title 
VI, OCR's primary concern is to ensure that the recipient/covered 
entity's policies and procedures overcome barriers resulting from 
language differences that would deny LEP persons a meaningful 
opportunity to participate in and access programs, services and 
benefits. A recipient/covered entity's appropriate

[[Page 4978]]

use of the methods and options discussed in this policy guidance will 
be viewed by OCR as evidence of a recipient/covered entity's 
willingness to comply voluntarily with its Title VI obligations.

G. Technical Assistance

    Over the past 30 years, OCR has provided substantial technical 
assistance to recipient/covered entities, and will continue to be 
available to provide such assistance to any recipient/covered entity 
seeking to ensure that it operates an effective language assistance 
program. In addition, during its investigative process, OCR is 
available to provide technical assistance to enable recipient/covered 
entities to come into voluntary compliance.

H. Attachments

    Appendix A is a summary, in question and answer format, of a number 
of the critical elements of this guidance. The purpose of the summary 
is to assist recipient/covered entities further in understanding this 
guidance and their obligations under Title VI to ensure meaningful 
access to LEP persons. Appendix B is a list of numerous provisions, 
including but not limited to Federal and state laws and regulations, 
requiring the provision of language assistance to LEP persons in 
various circumstances. This list is not exhaustive, and is not limited 
to the health and human service context.

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

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 recipient. 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

[[Page 4979]]

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 Handbooks?

    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

[[Page 4980]]

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.

Appendix B: Selected Federal and State Laws and Regulations 
Requiring Language Assistance

Federal Laws and Regulations

    Federal laws that recognize the need for language assistance 
include:
    1. The Voting Rights Act, which bans English-only elections and 
prescribes other remedial devices to ensure nondiscrimination 
against language minorities; \1\
---------------------------------------------------------------------------

    \1\ 42 U.S.C. Section 1973 b(f)(1).
---------------------------------------------------------------------------

    2. The Food Stamp Act of 1977, which requires states to provide 
written and oral language assistance to LEP persons under certain 
circumstances; \2\
---------------------------------------------------------------------------

    \2\ 7 U.S.C. Section 2020(e)(1) and (2)(A).
---------------------------------------------------------------------------

    3. Judicial procedure laws that require the use of certified or 
otherwise qualified interpreters for LEP parties and witnesses, at 
the government's expense, in certain proceedings; \3\
---------------------------------------------------------------------------

    \3\ 28 U.S.C. Section 1827(d)(1)(a).
---------------------------------------------------------------------------

    4. The Older Americans Act, which requires state planning 
agencies to use outreach workers who are fluent in the languages of 
older LEP persons, where there is a substantial number of such 
persons in a planning area; \4\
---------------------------------------------------------------------------

    \4\ 42 U.S.C. Section 3027(a)(20)(A).
---------------------------------------------------------------------------

    5. The Substance Abuse and Mental Health Administration 
Reorganization Act, which requires services provided with funds 
under the statute to be bilingual if appropriate; \5\
---------------------------------------------------------------------------

    \5\ 42 U.S.C. Section 290aa(d)(14).
---------------------------------------------------------------------------

    6. The Disadvantaged Minority Health Improvement Act, which 
requires the Office of Minority Health (OMH) to enter into contracts 
to increase the access of LEP persons to health care by developing 
programs to provide bilingual or interpreter services; \6\
---------------------------------------------------------------------------

    \6\ 42 U.S.C. Section 300u-6(b)(7).
---------------------------------------------------------------------------

    7. The Equal Educational Opportunities Act of 1974, which 
requires educational agencies to take appropriate action to 
accommodate the language differences that impede equal participation 
by students in instructional programs; \7\ and
---------------------------------------------------------------------------

    \7\ 20 U.S.C. Section 1703(f).
---------------------------------------------------------------------------

    8. Regulations issued by the Health Care Financing 
Administration (HCFA) which require that evaluations for the 
mentally ill and mentally retarded be adapted to the cultural 
background, language, ethnic origin and means of communication of 
the person being evaluated.\8\
---------------------------------------------------------------------------

    \8\ 42 C.F.R. Section 483.128(b).
---------------------------------------------------------------------------

State Laws and Regulations

    Many states have recognized the seriousness of the language 
access challenge and have enacted laws that require providers to 
offer language assistance to LEP persons in many service 
settings.\9\ States that require language assistance include:
---------------------------------------------------------------------------

    \9\ At least twenty six (26) states and the District of Columbia 
have enacted legislation requiring language assistance, such as 
interpreters and/or translated forms and other written materials, 
for LEP persons.
---------------------------------------------------------------------------

    1. California, which provides that intermediate care facilities 
must use interpreters and other methods to ensure adequate 
communication between staff and patients; \10\
---------------------------------------------------------------------------

    \10\ 22 California Code of Regulations, Section 73501. 
California has a wide array of other laws and regulations that 
require language assistance, including those that require: (a) 
Intermediate nursing facilities to use interpreters and other 
methods to ensure adequate communications with patients, (b) adult 
day care centers to employ ethnic and linguistic staff as indicated 
by participant characteristics, (c) certified interpreters for non-
English speaking persons at administrative hearings, and (d) health 
licensing agencies to translate patients rights information into 
every language spoken by 1% or more of the nursing home population.
---------------------------------------------------------------------------

    2. New Jersey, which provides that drug and alcohol treatment 
facilities must provide interpreter services if their patient 
population is non-English speaking; \11\
---------------------------------------------------------------------------

    \11\ New Jersey Administrative Code Section 42A-6.7.
---------------------------------------------------------------------------

    3. Pennsylvania, which provides that a patient who does not 
speak English should have access, where possible, to an interpreter; 
\12\ and
---------------------------------------------------------------------------

    \12\ 28 Pennsylvania Administrative Code Section 103.22(b)(14).
---------------------------------------------------------------------------

    4. Massachusetts, which in April 2000, enacted legislation that 
requires every acute care hospital to provide competent interpreter 
services to LEP patients in connection with all emergency room 
services.\13\
---------------------------------------------------------------------------

    \13\ M.G.L.A. 111, Section 25J.
---------------------------------------------------------------------------

Medical Accreditation Organizations

    1. The Joint Committee on Accreditation of Healthcare 
Organizations (JCAHO), which accredits hospitals and other health 
care institutions, requires language assistance in a number of 
situations. For example, its accreditation manual for hospitals 
provides that written notice of patients' rights must be appropriate 
to the patient's age, understanding and language.\14\
---------------------------------------------------------------------------

    \14\ JCAHO, 1997 Accreditation Manual for Hospitals, Section 
R1.1.4.
---------------------------------------------------------------------------

    2. The National Committee for Quality Assurance (NCQA), which 
provides accreditation for managed care organizations, also requires 
language assistance in a variety of settings. As part of its 
evaluation process, the NCQA assesses managed care member materials 
to determine whether they are available in languages, other than 
English, spoken by major population groups.
October 26, 2001.

Memorandum for Heads of Departments and Agencies General Counsels and 
Civil Rights Directors

From: Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights 
Division

Subject: Executive Order 13166 (Improving Access to Services for 
Persons with Limited English Proficiency)
    Federal agencies have recently raised several questions 
regarding the requirements of Executive Order 13166. This Memorandum 
responds to those questions. As discussed below, in view of the 
clarifications provided in this Memorandum, agencies that have 
issued Limited English Proficiency (``LEP'') guidance for their 
recipients pursuant to Executive Order 113166 and Title VI of the 
Civil Rights Act should, after notifying the Department of Justice 
(``DOJ''), publish a notice asking for public comment on the 
guidance documents they have issued. Based on the public comment it 
receives and this Memorandum, an agency may need to clarify or 
modify its existing guidance to the Department of Justice. Following 
approval by the Department of Justice and before finalizing its 
guidance, each agency should obtain public comment on their proposed 
guidance documents. With regard to plans for federally conducted 
programs and activities, agencies should review their plans in light 
of the clarifications provided below.

Background of Executive Order 13166

    The legal basis for Executive Order 13166 is explained in policy 
guidance issued by the Department of Justice entitled ``Enforcement 
of Title VI of the Civil Rights Act of 1964--National Origin 
Discrimination Against Persons With Limited English Proficiency.'' 
65 F.R. 50123 (August 16, 2000). This ``DOJ LEP Guidance'' was 
referenced in and issued concurrently with the Executive Order.
    As the DOJ LEP Guidance details, Title VI of the Civil Rights 
Act of 1964 prohibits discrimination on the basis of race, color, or 
national origin in any program or activity receiving federal 
financial assistance. Department of Justice regulations enacted to 
effectuate this prohibition bar recipients of federal financial 
assistance from ``utiliz[ing] criteria or methods of administration 
which have the effect of subjecting individuals to discrimination'' 
because of their race, color, or national origin. These regulations 
thus prohibit unjustified disparate impact on the basis of national 
origin.
    As applied, the regulations have been interpreted to require 
foreign language assistance in certain circumstances. For instance, 
where a San Francisco school district had a large number of non-
English speaking students of Chinese origin, it was required to take 
reasonable steps to provide them with a meaningful opportunity to 
participate in federally funded educational

[[Page 4981]]

programs. Lau v. Nichols, 414 U.S. 563 (1974)\1\
---------------------------------------------------------------------------

    \1\ ``It seems obvious that the Chinese-speaking minority 
receive fewer benefits than the English-speaking majority from 
respondents' school system which denies them a meaningful 
opportunity to participate in the education program--all earmarks of 
the discrimination banned by the regulations.'' 414 U.S. at 568.
---------------------------------------------------------------------------

    The Supreme Court most recently addressed the scope of the Title 
VI disparate impact regulations in Alexander v. Sandoval, 121 S. Ct. 
1511 (2001). There, the Court held that there is no private right of 
action to enforce these regulations. It ruled that, even if the 
Alabama Department of Public Safety's policy of administering 
driver's license examinations only in English violates the Title VI 
regulations, a private party could not bring a case to enjoin 
Alabama's policy. some have interpreted Sandoval as impliedly 
striking down Title VI's disparate impact regulations and thus that 
part of Executive Order 13166 that applies to federally assisted 
programs and activities.\2\
---------------------------------------------------------------------------

    \2\ See Sandoval, 121 S. Ct. at 1519 n.6 (``[W]e assume for 
purposes of this decision that Sec. 602 confers the authority to 
promulgate disparate-impact regulations; * * * We cannot help 
observing, however, how strange it is to say that disparate-impact 
regulations are `inspired by, at the service of, and inseparably 
intertwined with' Sec. 601 * * * when Sec. 601 permits the very 
behavior that the regulations forbid.'').
---------------------------------------------------------------------------

    The Department of Justice disagrees. Sandoval holds principally 
that there is no private right of action to enforce the Title VI 
disparate impact regulations. It did not address the validity of 
those regulations or Executive Order 13166. Because the legal basis 
for Executive Order 13166 is the Title VI disparate impact 
regulations and because Sandoval did not invalidate those 
regulations, it is the position of the Department of Justice that 
the Executive Order remains in force.

Requirements of Executive Order 13166

    Federally Assisted Programs and Activities. The DOJ LEP Guidance 
explains that, with respect to federally assisted programs and 
activities, Executive Order 13166 ``does not create new obligations, 
but rather, clarifies existing Title VI responsibilities.'' Its 
purpose is to clarify for federal-funds recipients the steps those 
recipients can take to avoid administering programs in a way that 
results in discrimination on the basis of national origin in 
violation of the Title VI disparate impact regulations. To this end, 
the Order requires each Federal Agency providing federal financial 
assistance to explain to recipients of federal funds their 
obligations under the Title VI disparate impact regulations.
    In developing their own LEP guidance for recipients of federal 
funds, an agency should balance the factors set forth in the DOJ LEP 
Guidance. These factors include, but are not limited to (i) the 
number or proportion of LEP individuals, (ii) the frequency of 
contact with the program, (iii) the nature and importance of the 
program, and (iv) the resources available.
    As the DOJ LEP Guidance explains, ``a factor in determining the 
reasonableness of a recipient's efforts is the number or proportion 
of people who will be excluded from the benefits or services absent 
efforts to remove language barriers.'' Similarly, the frequency of 
contact must be considered. Where the frequency and number of 
contacts is so small as to preclude any significant national origin 
based disparate impact, agencies may conclude that the Title VI 
disparate impact regulations impose no substantial LEP obligations 
on recipients.
    The nature and importance of the program is another factor. 
Where the denial or delay of access may have life or death 
implications, LEP services are of much greater importance than where 
denial of access results in mere inconvenience.
    Resources available and costs must likewise be weighed. A small 
recipient with limited resources may not have to take the same steps 
as a larger recipient. See DOJ LEP Guidance at 50125. Costs, too, 
must be factored into this balancing test. ``Reasonable steps'' may 
cease to be reasonable where the costs imposed substantially exceed 
the benefits in light of the factors outlined in the DOJ LEP 
Guidance. The DOJ LEP Guidance explains that a small recipient may 
not have to take substantial steps ``where contact is infrequent, 
where the total costs of providing language services is relatively 
high and where the program is not crucial to an individual's day-to-
day existence.'' By contrast, where number and frequency of contact 
is high, where the total costs for LEP services are reasonable, and 
where the lack of access may have life and death implicates, the 
availability of prompt LEP services may be critical. In these latter 
cases, claims based on lack of resources will need to be well 
substantiated.
    Finally, consideration of resources available naturally 
implicates the ``mix'' of LEP services required. While on-the-
premise translators may be needed in certain circumstances, written 
translation, access to centralized translation language lines or 
other means may be appropriate in the majority of cases. The correct 
balance should be based on what is both necessary to eliminate 
unjustified disparate impact prohibited by the Title VI regulations 
and reasonable in light of the factors outlined in the DOJ LEP 
Guidance.
    Federally Conducted Programs and Activities. Executive Order 
13166 also applies to federally conducted programs and activities. 
With respect to these, the Order requires each Federal Agency to 
prepare a plan to improve access to federally conducted programs and 
activities by eligible LEP persons. These plans, too, must be 
consistent with the DOJ LEP Guidance. Federal agencies should apply 
the same standards to themselves as they apply to their recipients.

Procedural Considerations

    Administrative Procedure Act: Agency action taken pursuant to 
Executive Order 13166 and the DOJ LEP Guidance may be subject to the 
Administrative Procedure Act's (``APA'') rulemaking requirements. 5 
U.S.C. Sec. 553. Although interpretive rules, general statements of 
policy, and rules of agency organization and procedure are not 
subject to section 553, courts have ruled that any final agency 
action that carries the force and effect of law must comply with 
section 553's notice and comments requirements. See Paralyzed 
Veterans of America v. D. C. Arena, 117 F.3d 579, 588 (D.C. Cir. 
1997). Agencies, therefore, should consider whether the action they 
have taken or that they propose to take to implement Executive Order 
13166 and Title VI of the Civil Rights Act is subject to the APA's 
requirements. If it is, they must comply with these statutory 
obligations. Agencies must bear in mind, however, that Executive 
Order 13166 ``does not create new obligations, but rather, clarifies 
existing Title VI responsibilities.'' Accordingly, agency action 
taken pursuant to Executive Order 13166 must not impose new 
obligations on recipients of federal funds, but should instead help 
recipients to understand their existing obligations.
    Executive Order 12866: Agency action taken pursuant to Executive 
Order 13166 and the DOJ LEP Guidance may also be subject to 
requirements set forth in Executive Order 12866 (Regulatory Review 
and Planning, Sept. 30, 1993). That Order directs agencies to submit 
to the Office of Management and Budget for review any ``significant 
regulatory actions'' the agency wishes to take. See Sec. 6(a). 
Agencies, therefore, should consider whether the action they have 
taken or that they propose to take to implement Executive Order 
13166 and Title VI of the Civil Rights Act is subject to Executive 
Order 12866's requirements. If it is, they should ensure that the 
action or proposed action complies with Executive Order 12866's 
obligations. With regard to federally conducted programs and 
activities, agencies should review their plans for their federally 
conducted programs in light of the clarifications below and make any 
necessary modifications.

Further Agency Action

    Existing LEP Guidance and Plans for Federally Conducted Programs 
and Activities: Agencies that have already published LEP guidance 
pursuant to Executive Order 13166 or Title VI of the Civil Rights 
Act should obtain public comment on the guidance documents they have 
issued. Agencies should then review their existing guidance 
documents in view of public comment and for consistency with the 
clarifications provided in this Memorandum. The Justice Department's 
Civil Rights Division, Coordination and Review Section ((202) 307-
2222), is available to assist agencies in making this determination. 
Should this review lead an agency to conclude that it is appropriate 
to clarify or modify aspects of its LEP guidance documents, it 
should notify the Department of Justice of that conclusion within 60 
days from the date of this Memorandum. Any agency effort to clarify 
or modify existing LEP guidance should be completed within 120 days 
from the date of this Memorandum. Agencies likewise should review 
plans for federally conducted programs and activities in light of 
the above clarification.
    New LEP Guidance and Plans for Federally Conducted Programs and 
Activities: Agencies that have not yet published LEP guidance 
pursuant to Executive Order 13166 and Title VI of the Civil Rights 
Act should submit to

[[Page 4982]]

the Department of Justice, within 60 days from the date of this 
Memorandum, agency-specific recipient guidance that is consistent 
with Executive Order 13166 and the DOJ LEP Guidance, including the 
clarifications set forth in this Memorandum. In preparing their 
guidance, agencies should ensure that the action they propose to 
take is consistent with the requirements of the Administrative 
Procedure Act and Executive Order 12866. The Justice Department's 
Civil Rights Division, Coordination and Review Section, is available 
to assist agencies in preparing agency-specific guidance. Following 
approval by the Department of Justice and before finalizing its 
guidance, each agency should obtain public comment on its proposed 
guidance documents. Final agency-specific LEP guidance should be 
published within 120 days from the date of this memorandum. Agencies 
likewise should submit to the Department of Justice plans for 
federally conducted programs and activities. The Department of 
Justice is the central repository for these agency plans.
* * * * *
    Federally assisted programs and activities may not be 
administered in a way that violates the Title VI regulations. Each 
Federal Agency is responsible for ensuring that its agency-specific 
guidance outlines recipients' obligations under the Title VI 
regulations and the steps recipients can take to avoid violating 
these obligations. While Executive Order 13166 requires only that 
Federal Agencies take steps to eliminate recipient discrimination 
based on national origin prohibited by Title VI, each Federal Agency 
is encouraged to explore whether, as a matter of policy, additional 
affirmative outreach to LEP individuals is appropriate. Federal 
Agencies likewise must eliminate national origin discrimination in 
their own federally conducted programs and activities. The 
Department of Justice is available to help agencies in reviewing and 
preparing agency-specific LEP guidance and federally conducted 
plans.

[FR Doc. 02-2467 Filed 1-31-02; 8:45 am]
BILLING CODE 4153-01-P