[Federal Register Volume 68, Number 111 (Tuesday, June 10, 2003)]
[Notices]
[Pages 34698-34708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14414]



[[Page 34698]]

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DEPARTMENT OF VETERANS AFFAIRS


Guidance to Federal Financial Assistance Recipients: Providing 
Meaningful Access to Individuals Who Have Limited English Proficiency 
in Compliance With Title VI of the Civil Rights Act of 1964

AGENCY: Department of Veterans Affairs.

ACTION: Notice and request for comments.

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SUMMARY: In accordance with Executive Order 13166, Improving Access to 
Service for Persons with Limited English Proficiency (LEP), this notice 
requests comments on the Department of Veterans Affairs (VA) draft 
guidance on improving access for persons with limited English 
proficiency to VA assisted programs and activities. Executive Order 
13166, requires each Federal agency that awards Federal financial 
assistance to publish in the Federal Register a notice containing 
Departmental guidance that assists recipients in complying with 
obligations under Title VI of the Civil Rights Act of 1964 and Title VI 
regulations to ensure meaningful access to Federally assisted programs 
and activities for LEP persons.

DATES: Comments must be received on or before July 10, 2003

ADDRESSES: Mail or hand-deliver written comments to: Director, 
Regulations Management (00REG1), Department of Veterans Affairs, 810 
Vermont Ave., NW., Room 1068, Washington, DC 20420; or fax comments to 
(202) 273-9026; or e-mail comments to [email protected]. 
Comments should indicate that they are submitted in response to ``LEP 
Guidance''. All comments received will be available for public 
inspection in the Office of Regulation Policy and Management, Room 
1158, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday 
(except holidays). Please call 202 273-9515 for an appointment.

FOR FURTHER INFORMATION CONTACT: Tyrone Eddins, Office of Resolution 
Management (08), at (202) 501-2801; or Royce Smith, Office of General 
Counsel (024), at (202) 273-6374, Department of Veterans Affairs, 810 
Vermont Avenue, NW., Washington, DC 20420.

SUPPLEMENTARY INFORMATION: The purpose of Executive Order 13166 is to 
eliminate, under Title VI, to the maximum extent possible, limited 
English proficiency (LEP) as an artificial barrier to full and 
meaningful participation by beneficiaries in all Federally assisted and 
Federally conducted programs and activities. The purpose of this policy 
is to further clarify the responsibilities of recipients of Federal 
financial assistance from VA, and assist them in fulfilling their 
responsibilities to LEP persons, pursuant to Title VI and Title VI 
regulations. The policy guidance explains that to avoid discrimination 
against LEP persons on the ground of national origin, recipients must 
take reasonable steps to ensure that LEP persons have meaningful access 
to the programs, activities, benefits, services, and information those 
recipients provide, free of charge.
    On March 14, 2002, the Office of Management and Budget (OMB) issued 
a Report To Congress titled ``Assessment of the Total Benefits and 
Costs of Implementing Executive Order No. 13166: Improving Access to 
Services for Persons with Limited English Proficiency.'' The report 
made several recommendations designed to minimize confusion and ensure 
that funds dedicated to LEP services will provide meaningful access for 
LEP individuals. One significant recommendation was the adoption of 
uniform guidance across all Federal agencies, with flexibility to 
permit tailoring to each agency's specific recipients.
    In a memorandum to all Federal funding agencies, dated July 8, 
2002, Assistant Attorney General Ralph Boyd of the Department of 
Justice's (DOJ) Civil Rights Division requested that agencies model 
their agency-specific guidance for recipients after Sections I-VIII of 
DOJ's June 18, 2002 guidance. Therefore, this proposed guidance is 
modeled after the language and format of DOJ's revised, final guidance, 
``Guidance to Federal Financial Assistance Recipients Regarding Title 
VI Prohibition Against National Origin Discrimination Affecting Limited 
English Proficient Persons'', published June 18, 2002, 67 FR 41455.
    Because this Guidance must adhere to the Federal-wide compliance 
standards and framework detailed in the model DOJ LEP Guidance issued 
on June 18, 2002, VA specifically solicits comments on the nature, 
scope and appropriateness of the VA specific examples set out in this 
guidance explaining and/or highlighting how those consistent Federal-
wide compliance standards are applicable to recipients of Federal 
financial assistance through VA.
    It has been determined that the guidance does not constitute a 
regulation subject to the rulemaking requirements of the Administrative 
Procedure Act, 5 U.S.C. 553.
    The text of the complete guidance document appears below.

    Approved: May 28, 2003.
Anthony J. Principi,
Secretary of Veterans Affairs.

Guidance on Executive Order 13166, Limited English Proficiency (LEP) 
Title VI Prohibition Against National Origin Discrimination In 
Federally Assisted Programs

I. Introduction

    Most individuals living in the United States read, write, speak and 
understand English. There are many individuals, however, for whom 
English is not their primary language. For instance, based on the 2000 
census, over 26 million individuals speak Spanish and almost 7 million 
individuals speak an Asian or Pacific Island language at home. If these 
individuals have a limited ability to read, write, speak, or understand 
English, they are limited English proficient (LEP). While detailed data 
from the 2000 census has not yet been released, 26% of all Spanish-
speakers, 29.9% of all Chinese-speakers, and 28.2% of all Vietnamese-
speakers reported that they spoke English ``not well'' or ``not at 
all'' in response to the 1990 census.
    Language for LEP individuals can be a barrier to accessing 
important benefits or services, understanding and exercising important 
rights, complying with applicable responsibilities, or understanding 
other information provided by Federally funded programs and activities. 
The Federal Government funds an array of services that can be made 
accessible to otherwise eligible LEP persons. The Federal Government is 
committed to improving the accessibility of these programs and 
activities to eligible LEP persons, a goal that reinforces its equally 
important commitment to promoting programs and activities designed to 
help individuals learn English. Recipients should not overlook the 
long-term positive impacts of incorporating or offering English as 
Second Language (ESL) programs in parallel with language assistance 
services. ESL courses can serve as an important adjunct to a proper LEP 
plan. However, the fact that ESL classes are made available does not 
obviate the statutory and regulatory requirement to provide meaningful 
access for those who are not yet English proficient. Recipients of 
Federal financial assistance have an obligation to reduce language 
barriers that can preclude meaningful access by LEP persons to 
important government services.\1\
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    \1\ VA recognizes that many recipients had language assistance 
programs in place prior to the issuance of Executive Order 13166. 
This guidance provides a uniform framework for a recipient to 
integrate, formalize, and assess the continued vitality of these 
existing and possibly additional reasonable efforts based on the 
nature of its program or activity, the current needs of the LEP 
population it encounters, and its prior experience in providing 
language services in the community it serves.

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    This policy guidance clarifies responsibilities, under existing 
law, of recipients of Federal financial assistance from the Department 
of Veterans Affairs (VA) to provide meaningful access to LEP persons. 
The purpose is to assist recipients in fulfilling their 
responsibilities to provide meaningful access to LEP persons under 
existing law. In certain circumstances, failure to ensure that LEP 
persons can effectively participate in or benefit from Federally 
assisted programs and activities may violate the prohibition under 
Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d and Title VI 
regulations against national origin discrimination. This policy 
guidance clarifies existing legal requirements for LEP persons by 
providing a description of the factors recipients should consider in 
fulfilling their responsibilities to LEP persons.\2\ These are the same 
criteria VA will use in evaluating whether recipients are in compliance 
with Title VI and Title VI regulations.
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    \2\ This policy guidance is not a regulation but rather a guide. 
Title VI and its implementing regulations require that recipients 
take responsible steps to ensure meaningful access by LEP persons. 
This guidance provides an analytical framework that recipients may 
use to determine how best to comply with statutory and regulatory 
obligations to provide meaningful access to the benefits, services, 
information, and other important portions of their programs and 
activities for individuals who are limited English proficient.
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    As with most government initiatives, this requires balancing 
several principles. While this Guidance discusses that balance in some 
detail, it is important to note the basic principles behind that 
balance. First, we must ensure that Federally assisted programs aimed 
at the American public do not leave some behind simply because they 
face challenges communicating in English. This is of particular 
importance because, in many cases, LEP individuals form a substantial 
portion of those encountered in Federally assisted programs. Second, we 
must achieve this goal while finding constructive methods to reduce the 
costs of LEP requirements on small businesses, small local governments, 
or small non-profits that receive Federal financial assistance.
    There are many productive steps that the Federal Government, either 
collectively or as individual grant agencies, can take to help 
recipients reduce the costs of language services without sacrificing 
meaningful access for LEP persons. Without these steps, certain smaller 
grantees may well choose not to participate in Federally assisted 
programs, threatening the critical functions that the programs strive 
to provide. To that end, the VA, in conjunction with the Department of 
Justice (DOJ), plans to continue to provide assistance and guidance in 
this important area. In addition, the VA plans to work with DOJ, 
recipients, and LEP persons to identify and share model plans, examples 
of best practices, and cost-saving approaches and to explore how 
language assistance measures, resources and cost-containment approaches 
developed with respect to its own Federally conducted programs and 
activities can be effectively shared or otherwise made available to 
recipients, particularly small businesses, small local governments, and 
small non-profits. An interagency working group on LEP has developed a 
Web site, http://www.lep.gov, to assist in disseminating this 
information to recipients, Federal agencies, and the communities being 
served.
    Many commentators have noted that some have interpreted the case of 
Alexander v. Sandoval, 532 U.S. 275 (2001), as impliedly striking down 
the regulations promulgated under Title VI that form the basis for the 
part of Executive Order 13166 that applies to Federally assisted 
programs and activities. The Department of Justice and the VA have 
taken the position that this is not the case, and will continue to do 
so. Accordingly, we will strive to ensure that Federally assisted 
programs and activities work in a way that is effective for all 
eligible beneficiaries, including those with limited English 
proficiency.
    VA is comprised of three distinct benefits administrations: 
Veterans Health Administration (VHA), Veterans Benefits Administration 
(VBA) and National Cemetery Administration (NCA). Each of these 
administrations has programs that provide Federal financial assistance 
to recipients. Each has existing Title VI program responsibilities that 
are administered independent of each other.
    VHA administers several programs and activities that receive 
Federal financial assistance from the VA. With more than 163 VA medical 
centers nationwide, VHA manages one of the largest health care systems 
in the United States. VA medical centers within a Veterans Integrated 
Service Network (VISN) work together to provide efficient, accessible 
health care to veterans in their areas. VHA also conducts research and 
education and provides emergency medical preparedness.
    VBA is responsible for ensuring compliance in proprietary, non-
college educational institutions approved to train veterans and/or 
their beneficiaries. VBA also provides benefits and services to 
veterans and their beneficiaries through more than 50 VA regional 
offices. Some of the benefits and services provided by VBA include 
compensation and pension, education, loan guaranty, and insurance.
    NCA provides Federal assistance to States to establish, expand, or 
improve state owned or established veterans cemeteries. The State 
Cemetery Grants Program (SCGP) provides these services to eligible 
state veterans cemeteries. NCA is responsible for providing burial 
benefits to veterans and eligible dependents. The delivery of these 
benefits involves operating 120 national cemeteries in the United 
States and Puerto Rico, providing headstones and grave markers 
worldwide, administering the State Cemetery Grants program that 
complements the national cemeteries, and administering the Presidential 
Memorial Certificate Program, which provides certificates bearing the 
President's signature to the next of kin of honorably discharged, 
deceased veterans.

II. Legal Authority

    Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
2000d, provides that no person shall on the grounds 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. Section 602 authorizes 
and directs Federal agencies that are empowered to extend Federal 
financial assistance to any program or activity to effectuate the 
provisions of [section 601] * * * by issuing rules, regulations, or 
orders of general applicability. 42 U.S.C. 2000d-1.
    VA regulations implementing Title VI, provide in 38 CFR at part 
18.3(b) that
    (1) A recipient under any program to which this part applies may 
not, directly or through contractual or other arrangements, on grounds 
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,

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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 as respects 
to individuals of a particular race, color or national origin.'' 
(Emphasis added. 104(b)(2)).
    The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974), 
interpreted regulations promulgated by the former Department of Health, 
Education, and Welfare, including a regulation similar to that of DOJ, 
45 CFR 80.3(b)(2), to hold that Title VI prohibits conduct that has a 
disproportionate effect on LEP persons because such conduct constitutes 
national-origin discrimination. In Lau, a San Francisco school district 
that had a significant number of non-English speaking students of 
Chinese origin was required to take reasonable steps to provide them 
with a meaningful opportunity to participate in Federally funded 
educational programs.
    Executive Order 13166, ``Improving Access to Services for Persons 
with Limited English Proficiency,'' 65 FR 50121 (August 16, 2000), was 
issued on August 11, 2000. Under that order, every Federal agency that 
provides financial assistance to non-Federal entities must publish 
guidance on how their recipients can provide meaningful access to LEP 
persons and thus comply with Title VI regulations forbidding funding 
recipients from ``restrict[ing] an individual in any way in the 
enjoyment of any advantage or privilege enjoyed by others receiving any 
service, financial aid, or other benefit under the program'' or 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, or have the effect of defeating or 
substantially impairing accomplishment of the objectives of the program 
as respects individuals of a particular race, color, or national 
origin.''
    On that same day, DOJ issued a general guidance document addressed 
to Agency Civil Rights Officers setting forth general principles for 
agencies to apply in developing guidance documents for recipients 
pursuant to the Executive Order and enforcement of Title VI of the 
Civil Rights Act of 1964, ``National Origin Discrimination Against 
Persons With Limited English Proficiency,'' 65 FR 50123 (August 16, 
2000) (``DOJ LEP Guidance''). The Department of Justice's role under 
Executive Order 13166 is unique. The Order charges DOJ with 
responsibility for providing LEP Guidance to other Federal agencies and 
for ensuring consistency among each agency-specific guidance. 
Consistency among Departments of the Federal Government is particularly 
important. Inconsistency or contradictory guidance could confuse 
recipients of Federal funds and needlessly increase costs without 
rendering the meaningful access for LEP persons that this Guidance is 
designed to address.
    Subsequently, Federal agencies raised questions regarding the 
requirements of the Executive Order, especially in light of the Supreme 
Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001). On 
October 26, 2001, Ralph F. Boyd, Jr., Assistant Attorney General for 
the Civil Rights Division, issued a memorandum for ``Heads of 
Departments and Agencies, General Counsels and Civil Rights 
Directors.'' This memorandum clarified and reaffirmed the DOJ LEP 
Guidance in light of Sandoval.\3\ The Assistant Attorney General stated 
that because Sandoval did not invalidate any Title VI regulations that 
proscribe conduct that has a disparate impact on covered groups--the 
types of regulations that form the legal basis for the part of 
Executive Order 13166 that applies to Federally assisted programs and 
activities--the Executive Order remains in force.
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    \3\ The memorandum noted that some commentators have interpreted 
Sandoval as impliedly striking down the disparate-impact regulations 
promulgated under Title VI that form the basis for the part of 
Executive Order 13166 that applies to federally assisted programs 
and activities. See, e.g., Sandoval, 532 U.S. at 286, 286 n.6 
(``[W]e assume for purposes of this decision that section 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 memorandum, 
however, made clear that DOJ disagreed with the commentators' 
interpretation. Sandoval holds principally that there is no private 
right of action to enforce Title VI disparate-impact regulations. It 
did not address the validity of those regulations or Executive Order 
13166 or otherwise limit the authority and responsibility of federal 
grant agencies to enforce their own implementing regulations.
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    VA's policy guidance is consistent with and is issued under the 
Title VI and the Title VI regulations, and is also consistent with the 
August 11, 2000, DOJ ``Policy Guidance Document on Enforcement of 
National Origin Discrimination Against Persons With Limited English 
Proficiency,'' 65 FR 50123 (August 16, 2000); Executive Order 13166; 
and the DOJ LEP guidance issued on June 18, 2002. 67 FR 41457 (June 18, 
2002).

III. Who Is Covered?

    All entities that receive Federal financial assistance from the VA, 
either directly or indirectly, through a grant, contract or 
subcontract, are covered by this policy guidance (see list 38 CFR, part 
18, appendix A). Covered entities include (1) any state or local 
agency, private institution or organization, or (2) any public or 
private individual that operates, provides, or engages in activities, 
and that receives Federal financial assistance.\4\
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    \4\ Pursuant to Executive Order 13166, the meaningful access 
requirement of the Title VI regulations and the four-factor analysis 
set forth in the VA LEP Guidance are to additionally apply to the 
programs and activities of federal agencies, including the VA.
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    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. 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, the recipient's entire 
operation is covered. This is true even if only one part of the 
recipient receives the Federal assistance.
    Example: VA provides assistance to a state agency to improve a 
particular cemetery. All of the operations of the entire state 
agency, not just the particular cemetery are covered.
    Finally, some recipients operate in jurisdictions in which English 
has been declared the official language. Nonetheless, these recipients 
continue to be subject to Federal non-discrimination requirements, 
including those applicable to the provision of Federally assisted 
services to persons with limited English proficiency.
    VHA administers several programs and activities that receive 
Federal financial assistance from the VA. All entities that receive 
Federal financial assistance from VA are listed in 38 CFR, part 18, 
appendix A, either directly or indirectly, through a grant, contract, 
or subcontract, are covered by this policy guidance. Covered entities 
include (1)

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any state or local agency, private institution or organization, or (2) 
any public or private individual that operates, provides, or engages in 
health, or social service programs and activities, and that receives 
Federal financial assistance from VA 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; 
physicians; and other providers who receive Federal financial 
assistance from VA.
    VBA is responsible for ensuring compliance in proprietary, non-
college degree granting educational institutions approved to train 
veterans and/or their beneficiaries. In 1968, the Attorney General 
ruled that recipients of tuition or other payments from veterans for 
education programs are receiving Federal financial assistance. The U.S. 
District Court upheld this principle in Bob Jones University, et at, v. 
Donald E. Johnson, 396 F. Supp. 597 (D.S.C. 1974), aff'd 529 F.2d 514 
(4th Cir. 1975).
    VBA is also responsible for ensuring Title VI compliance in certain 
education and training programs funded by the U.S. Department of 
Education (ED). Under a delegation agreement, VA has Title VI 
compliance responsibilities for ED-funded proprietary educational 
institutions, except those operated by a hospital. VA is also delegated 
Title VI responsibility for post-secondary, nonprofit educational 
institutions, other than colleges and universities, except if operated 
by a college, university, hospital, or a unit of State or local 
government. VA's LEP guidance applies only to recipients for whom VA 
has compliance responsibility.
    VBA's Title VI compliance responsibility also applies to recognized 
national service organizations whose representatives assist veterans in 
the preparation, presentation and prosecution of claims for VA 
benefits. In December 1975, DOJ's ``Interagency Report: Evaluation of 
Title VI Enforcement at the Veterans Administration,'' concluded that 
representatives of recognized service organizations afforded the use of 
Federally-owned property provided by VA without charge are recipients 
of Federal assistance. These service organizations are considered 
recipients within the meaning of Title VI. Recognized national 
veterans' service organizations and State employment services both use 
VA office space and, therefore, VA's LEP guidance applies to those 
entities.
    VBA recipients receiving Federal financial assistance, and covered 
by the LEP policy guidance include but are:

Educational institutions whose programs are approved for training under 
38 U.S.C., chapters 30, 31, 32, 35 and 10 U.S.C., chapter 1613.
Representatives of recognized national veterans service organizations 
who utilize VBA space and office facilities (38 U.S.C. 5902(a)(2)).
Representatives of State employment services who utilize VBA space and 
office facilities (38 U.S.C. 7725(1)).

    NCA administers the State Cemetery Grants Program (SCGP). Examples 
of covered entities include, but are not limited to: Cemeteries; state, 
county and local agencies; and other providers who receive Federal 
financial assistance from VA.

IV. Who Is a Limited English Proficient Individual?

    Individuals who do not read, write, speak, or understand English 
can be limited English proficient, or ``LEP'' entitled to language 
assistance with respect to a particular type of service, benefit, or 
encounter.
    Examples of populations likely to include LEP persons who are 
encountered and/or served by VA recipients and should be considered 
when planning language services include, but are not limited to, for 
example:

--Persons seeking healthcare services or benefits;
--Persons seeking access to veterans cemeteries, including family 
members and friends of deceased veterans and others who are eligible 
for burial in such cemeteries;
--Persons seeking educational, training, including spouses and 
children;
--Persons seeking assistance in the preparation, presentation, and 
prosecution of claims for VA benefits;
--Other persons who encounter or seek services, benefits, or 
information from entities receiving Federal financial assistance from 
VA.

V. How Does a Recipient Determine the Extent of Its Obligation To 
Provide LEP Services?

    Recipients are required to take reasonable steps to ensure 
meaningful access to their programs and activities by LEP persons. 
While designed to be a flexible and fact-dependent standard, the 
starting point is an individualized assessment that balances the 
following four factors: (1) The number or proportion of LEP persons 
eligible to be served or likely to be encountered by the program or 
grantee; (2) the frequency with which LEP individuals come in contact 
with the program; (3) the nature and importance of the program, 
activity, or service provided by the program to people's lives; and (4) 
the resources available to the grantee/recipient and costs. As 
indicated above, the intent of this guidance is to find a balance that 
ensures meaningful access by LEP persons to critical services while not 
imposing undue burdens on small business, small local governments, or 
small nonprofits.
    After applying the above four-factor analysis, a recipient may 
conclude that different language assistance measures are sufficient for 
different types of programs or activities. For instance, some of a 
recipient's activities will be more important than others and/or have 
greater impact on or contact with LEP persons, and thus may require 
more in the way of language assistance. The flexibility that recipients 
have in addressing the needs of the LEP populations they serve does not 
diminish, and should not be used to minimize, the obligation that those 
needs be addressed. VA recipients should apply the following four 
factors to the various kinds of contacts that they have with the public 
to assess language needs and decide what reasonable steps they should 
take to ensure meaningful access for LEP persons.

(1) The Number or Proportion of LEP Persons Served or Encountered in 
the Eligible Service Population

    One factor in determining what language services recipients should 
provide is the number or proportion of LEP persons from a particular 
language group served or encountered in the eligible service 
population. The greater the number or proportion of these LEP persons, 
the more likely language services are needed. Ordinarily, persons 
``eligible to be served, or likely to be directly affected, by'' a 
recipient's program or activity are those who are served or encountered 
in the eligible service population. This population will be program-
specific, and includes persons who are in the geographic area that has 
been approved by a Federal grant agency as the recipient's service 
area. However, where, for instance, a VA facility serves a large LEP 
population, the appropriate service area is most likely the area 
serviced by the facility, and not the entire population served by the 
department. Where no service area has previously been approved, the 
relevant service area may

[[Page 34702]]

be that which is approved by state or local authorities or designated 
by the recipient itself, provided that these designations do not 
themselves discriminatorily exclude certain populations. When 
considering the number or proportion of LEP individuals in a service 
area, recipients should consider LEP parent(s) when their English-
proficient or LEP minor children and dependents encounter the legal 
system.
    Recipients should first examine their prior experiences with LEP 
encounters and determine the breadth and scope of language services 
that were needed. In conducting this analysis, it is important to 
include language minority populations that are eligible for their 
programs or activities but may be under served because of existing 
language barriers. Other data should be consulted to refine or validate 
a recipient's prior experience, including the latest census data for 
the area served, data from school systems and from community 
organizations, and data from state and local governments.
    The focus of the analysis is on lack of English proficiency, not 
the ability to speak more than one language. Note that demographic data 
may indicate the most frequently spoken languages other than English 
and the percentage of people who speak those languages speak or 
understand English less than well. Some of the most commonly spoken 
languages other than English may be spoken by people who are also 
overwhelmingly proficient in English. Thus, they may not be the 
languages spoken most frequently by limited English proficient 
individuals. When using census data, for instance, it is important to 
focus in on the languages spoken by those who are not proficient in 
English. Community agencies, school systems, religious organizations, 
legal aid entities, and others can often assist in identifying 
populations for whom outreach is needed and who would benefit from the 
recipients' programs and activities were language services provided.

(2) The Frequency With Which LEP Individuals Come in Contact With the 
Program

    Recipients should assess, as accurately as possible, the frequency 
with which they have or should have contact with an LEP individual from 
different language groups seeking assistance. The more frequent the 
contact with a particular language group, the more likely that enhanced 
language services in that language are needed. The steps that are 
reasonable for a recipient that serves a LEP person on a one-time basis 
will be very different than those expected from a recipient that serves 
LEP persons daily. It is also advisable to consider the frequency of 
different types of language contacts. For example, frequent contacts 
with Spanish-speaking people who are LEP may require certain assistance 
in Spanish. Less frequent contact with different language groups may 
suggest a different and less intensified solution. If a LEP individual 
accesses a program or service on a daily basis, a recipient has greater 
duties than if the same individual's program or activity contact is 
unpredictable or infrequent. But even recipients that serve LEP persons 
on an unpredictable or infrequent basis should use this balancing 
analysis to determine what to do if an LEP individual seeks services 
under the program in question. This plan need not be intricate. It may 
be as simple as being prepared to use one of the commercially available 
telephonic interpretation services to obtain immediate interpreter 
services. In applying this standard, recipients should take care to 
consider whether appropriate outreach to LEP persons could increase the 
frequency of contact with LEP language groups.

(3) The Nature and Importance of the Program, Activity, or Service 
Provided by the Program

    The more important the activity, information, service, or program, 
or the greater the possible consequences of the contact to the LEP 
individuals, the more likely language services are needed. The 
obligation to communicate with a person seeking medical services 
differs, for example, from those to provide voluntary recreational 
programming. A recipient needs to determine whether denial or delay of 
access to services or information could have serious or even life-
threatening implications for the LEP individual. Decisions by a 
Federal, state, or local entity to make an activity compulsory, such as 
access to important benefits and services can serve as strong evidence 
of the program's importance.

(4) The Resources Available to the Recipient and Costs

    A recipient's level of resources and the costs that would be 
imposed on it may have an impact on the nature of the steps it should 
take. Smaller recipients with more limited budgets are not expected to 
provide the same level of language services as larger recipients with 
larger budgets. In addition, ``reasonable steps'' may cease to be 
reasonable where the costs imposed substantially exceed the benefits.
    However, resource and cost issues can often be reduced by 
technological advances, the sharing of language assistance materials 
and services among and between recipients, advocacy groups, and Federal 
grant agencies, and reasonable business practices. Where appropriate, 
training bilingual staff to act as interpreters and translators, 
information sharing through industry groups, telephonic and 
videoconferencing interpretation services, pooling resources and 
standardizing documents to reduce translation needs, using qualified 
translators and interpreters to ensure that documents need not be late 
and that inaccurate interpretations do not cause delay or other costs, 
centralizing interpreter and translator services to achieve economies 
of scale, or the formalized use of qualified community volunteers, for 
example, may help reduce costs. Recipients should carefully explore the 
most cost-effective means of delivering competent and accurate language 
services before limiting services due to resource concerns. Large 
entities and those entities serving a significant number or proportion 
of LEP persons should ensure that their resource limitations are well-
substantiated before using this factor as a reason to limit language 
assistance. Such recipients may find it useful to be able to 
articulate, through documentation or in some other reasonable manner, 
their process for determining that language services would be limited 
based on resources or costs. Small recipients with limited resources 
may find that entering into a bulk telephonic interpretation service 
contract will prove cost effective.
    This four-factor analysis necessarily implicates the ``mix'' of LEP 
services required. Recipients have two main ways to provide language 
services: Oral interpretation either in person or via telephone 
interpretation service (hereinafter ``interpretation'') and written 
translation (hereinafter ``translation''). Oral interpretation can 
range from on-site interpreters for critical services provided to a 
high volume of LEP persons to access through commercially available 
telephonic interpretation services. Written translation, likewise, can 
range from translation of an entire document to translation of a short 
description of the document. In some cases, language services should be 
made available on an expedited basis while in others the LEP individual 
may be referred to another office of the recipient for language 
assistance.
    The correct mix should be based on what is both necessary and 
reasonable in light of the four-factor analysis. For instance, a 
healthcare recipient

[[Page 34703]]

operating in a largely Hispanic neighborhood may need immediate oral 
interpreters available and should give serious consideration to hiring 
some bilingual staff. (Of course, many have already made such 
arrangements.) In contrast, there may be circumstances where the 
importance and nature of the activity and number or proportion and 
frequency of contact with LEP persons may be low and the costs and 
resources needed to provide language services may be high--such as in 
the case of a voluntary general public tour of a veterans' social 
facility--in which pre-arranged language services for the particular 
service may not be necessary. Regardless of the type of language 
service provided, quality and accuracy of those services can be 
critical in order to avoid serious consequences to the LEP person and 
to the recipient. Recipients have substantial flexibility in 
determining the appropriate mix.

VI. Selecting Language Assistance Services

    Recipients have two main ways to provide language services: Oral 
and written language services. Quality and accuracy of the language 
service is critical in order to avoid serious consequences to the LEP 
person and to the recipient.

Oral Language Services (Interpretation)

    Interpretation is the act of listening to something in one language 
(source language) and orally translating it into another language 
(target language). Where interpretation is needed and is reasonable, 
recipients should consider some or all of the following options for 
providing competent interpreters in a timely manner:
    Competence of Interpreters. When providing oral assistance, 
recipients should ensure competency of the language service provider, 
no matter which of the strategies outlined below are used. Competency 
requires more than self-identification as bilingual. Some bilingual 
staff and community volunteers, for instance, may be able to 
communicate effectively in a different language when communicating 
information directly in that language, but not be competent to 
interpret in and out of English. Likewise, they may not be able to do 
written translations.
    Competency to interpret, however, does not necessarily mean formal 
certification as an interpreter, although certification is helpful. 
When using interpreters, recipients should ensure that they:
--Demonstrate proficiency in and ability to communicate information 
accurately in both English and in the other language and identify and 
employ the appropriate mode of interpreting (e.g., consecutive, 
simultaneous, summarization, or sight translation);
--Have knowledge in both languages of any specialized terms or concepts 
peculiar to the entity's program or activity and of any particularized 
vocabulary and phraseology used by the LEP person; \5\
---------------------------------------------------------------------------

    \5\ Many languages have ``regionalisms,'' or differences in 
usage. For instance, a word that may be understood to mean something 
in Spanish for someone from Cuba may not be so understood by someone 
from Mexico. In addition, because there may be languages, which do 
not have an appropriate direct interpretation of some medical or 
benefits-related terms, the interpreter should be so aware and be 
able to provide the most appropriate interpretation. The interpreter 
should likely make the recipient aware of the issue and the 
interpreter and recipient can then work to develop a consistent and 
appropriate set of descriptions of these terms in that language that 
can be used again, when appropriate.
---------------------------------------------------------------------------

--Understand and follow confidentiality and impartiality rules to the 
same extent the recipient employee for whom they are interpreting and/
or to the extent their position requires.
--Understand and adhere to their role as interpreters without deviating 
into a role as counselor, legal advisor, or other roles.

    Some recipients may have additional self-imposed requirements for 
interpreters. Where individual rights depend on precise, complete, and 
accurate interpretation or translations, particularly in the contexts 
of hearings, the provision of healthcare, or the provision of other 
vital services or exchange of vital information, the use of certified 
interpreters is strongly encouraged. For those languages in which no 
formal accreditation or certification currently exists, such entities 
should consider a formal process for establishing the credentials of 
the interpreter. Where such proceedings are lengthy, the interpreter 
will likely need breaks and team interpreting may be appropriate to 
ensure accuracy and to prevent errors caused by mental fatigue of 
interpreters.
    While quality and accuracy of language services is critical, the 
quality and accuracy of language services is nonetheless part of the 
appropriate mix of LEP services required. The quality and accuracy of 
language services in a prison hospital emergency room, for example, 
must be extraordinarily high, while the quality and accuracy of 
language services in a bicycle safety class need not meet the same 
exacting standards.
    Finally, when interpretation is needed and is reasonable, it should 
be provided in a timely manner. To be meaningfully effective, language 
assistance should be timely. While there is no single definition of 
``timely'' applicable to all types of interactions at all times by all 
types of recipients, one clear guide is that the language assistance 
should be provided at a time and place that avoids the effective denial 
of the service, benefit, or right at issue or the imposition of an 
undue burden on or delay in important rights, benefits, or services to 
the LEP person. For example, when the timeliness of services is 
important, such as with certain activities of DOJ recipients providing 
law enforcement, health, and safety services, and when important legal 
rights are at issue, a recipient would likely not be providing 
meaningful access if it had one bilingual staff person available one 
day a week to provide the service. Such conduct would likely result in 
delays for LEP persons that would be significantly greater than those 
for English proficient persons. Conversely, where access to or exercise 
of a service, benefit, or right is not effectively precluded by a 
reasonable delay, language assistance can likely be delayed for a 
reasonable period.
    Hiring Bilingual Staff. When particular languages are encountered 
often, hiring bilingual staff offers one of the best, and often most 
economical, options. Recipients can, for example, fill public contact 
positions, such as 911 operators, police officers, guards, or program 
directors, with staff that are bilingual and competent to communicate 
directly with LEP persons in their language. If bilingual staff is also 
used to interpret between English speakers and LEP persons, or to 
orally interpret written documents from English into another language, 
they should be competent in the skill of interpreting. Being bilingual 
does not necessarily mean that a person has the ability to interpret. 
In addition, there may be times when the role of the bilingual employee 
may conflict with the role of an interpreter. Effective management 
strategies, including any appropriate adjustments in assignments and 
protocols for using bilingual staff, can ensure that bilingual staff 
are fully and appropriately utilized. When bilingual staff cannot meet 
all of the language service obligations of the recipient, the recipient 
should turn to other options.
    Hiring Staff Interpreters. Hiring interpreters may be most helpful 
where there is a frequent need for interpreting services in one or more 
languages.
    Contracting for Interpreters. Contract interpreters may be a cost-
effective

[[Page 34704]]

option when there is no regular need for a particular language skill. 
In addition to commercial and other private providers, many community-
based organizations and mutual assistance associations provide 
interpretation services for particular languages. Contracting with and 
providing training regarding the recipient's programs and processes to 
these organizations can be a cost-effective option for providing 
language services to LEP persons from those language groups.
    Using Telephone Interpreter Lines. Telephone interpreter service 
lines often offer speedy interpreting assistance in many different 
languages. They may be particularly appropriate where the mode of 
communicating with an English proficient person would also be over the 
phone. Although telephonic interpretation services are useful in many 
situations it is important to ensure that, when using such services, 
the interpreters used are competent to interpret any technical, 
medical, or legal terms specific to the program that may be important 
parts of the conversation. Nuances in language and non-verbal 
communication can often assist an interpreter and cannot be recognized 
over the phone. Video teleconferencing may sometimes help to resolve 
this issue where necessary. In addition, where documents are being 
discussed, it is important to give telephonic interpreters adequate 
opportunity to review the document prior to the discussion and any 
logistical problems should be addressed. Depending on the facts, 
sometimes it may be necessary and reasonable to provide on-site 
interpreters to provide accurate and meaningful communication with an 
LEP person.
    Using Community Volunteers. In addition to consideration of 
bilingual staff, staff interpreters, or contract interpreters (either 
in-person or by telephone) as options to ensure meaningful access by 
LEP persons, use of recipient-coordinated community volunteers, working 
with, for instance, community-based organizations may provide a cost-
effective supplemental language assistance strategy under appropriate 
circumstances. They may be particularly useful in providing language 
access for recipients' less critical programs and activities. To the 
extent the recipient relies on community volunteers, it is often best 
to use volunteers who are trained in the information or services of the 
program and can communicate directly with LEP persons in their 
language. Just as with all interpreters, community volunteers used to 
interpret between English speakers and LEP persons, or to orally 
translate documents, should be competent in the skill of interpreting 
applicable confidentiality and impartiality rules.
    Use of Family Members or Friends as Interpreters. Although 
recipients should not plan to rely on an LEP person's family members, 
friends, or other informal interpreters to provide meaningful access to 
important programs and activities, where LEP persons so desire, they 
should be permitted to use, at their own expense, an interpreter of 
their own choosing (whether a professional interpreter, family member, 
or friend) in place of or as a supplement to the free language services 
expressly offered by the recipient. LEP persons may feel more 
comfortable when a trusted family member or friend acts as an 
interpreter. In addition, in exigent circumstances that are not 
reasonably foreseeable, temporary use of interpreters not provided by 
the recipient may be necessary. However, with proper planning and 
implementation, recipients should be able to avoid most such 
situations.
    Recipients, however, should take special care to ensure that family 
legal guardians, caretakers, and other informal interpreters are 
appropriate in light of the circumstances and subject matter of the 
program, service or activity, including protection of the recipient's 
own administrative interest in accurate interpretation. In many 
circumstances, family members (especially children), or friends are not 
competent to provide quality and accurate interpretations. Issues of 
confidentiality, privacy, or conflict of interests may also arise. LEP 
individuals may feel uncomfortable revealing or describing sensitive, 
confidential, or potentially embarrassing medical, mental health, 
family, or financial information to a family member, friend, or member 
of the local community. In addition, such informal interpreters may 
have a personal connection to the LEP person or an undisclosed conflict 
of interest. For these reasons, when oral language services are 
necessary, recipients should generally offer competent interpreter 
services free of cost to the LEP person. For VA recipient programs and 
activities, this is particularly true in situations in which health, 
safety, or access to important benefits and services are at stake, or 
when credibility and accuracy are important to protect an individual's 
rights and access to important services.
    An example of such a case is when an LEP person seeks medical care 
from a VA funded recipient. In such a case, use of family members or 
neighbors to interpret for the LEP patient may raise serious issues of 
competency, confidentiality, and conflict of interest and be 
inappropriate. While issues of competency, confidentiality, and 
conflicts of interest in the use of family members (especially 
children), or friends often make their use inappropriate, the use of 
these individuals as interpreters may be an appropriate option where 
proper application of the four factors would lead to a conclusion that 
recipient-provided services are not necessary.
    An example of this is a voluntary educational tour of a VA facility 
offered to the public. There, the importance and nature of the activity 
may be relatively low and unlikely to implicate issues of 
confidentiality, conflict of interest, or the need for accuracy. In 
addition, the resources needed and costs of providing language services 
may be high. In such a setting, a LEP person's use of family, friends, 
or others may be appropriate.
    If the LEP person voluntarily chooses to provide his or her own 
interpreter, a recipient should consider whether a record of that 
choice and of the recipient's offer of assistance is appropriate. Where 
precise, complete, and accurate interpretations or translations of 
information and/or testimony are critical for adjudicatory, medical, 
administrative, or other reasons, or where the competency of the LEP 
person's interpreter is not established, a recipient might decide to 
provide its own, independent interpreter, even if an LEP person wants 
to use his or her own interpreter as well. Extra caution should be 
exercised when the LEP person chooses to use a minor as the 
interpreter. While the LEP person's decision should be respected, there 
may be additional issues of competency, confidentiality, or conflict of 
interest when the choice involves using children as interpreters. The 
recipient should take extra care to ensure that the LEP person's choice 
is voluntary that the LEP person is aware of the possible problems if 
the preferred interpreter is a minor child, and that the LEP person 
knows that a competent interpreter could be provided by the recipient 
at no cost.
    Written Language Services (Translation) Translation is the 
replacement of a written text from one language (source language) into 
an equivalent written text in another language (target language).
    What Documents Should be Translated? After applying the four-factor 
analysis, recipients may determine that an effective LEP plan ensures 
that certain vital written materials are translated into the

[[Page 34705]]

language of each frequently encountered LEP group eligible to be served 
and/or likely to be affected by the recipient's program. Such written 
materials could include, for example:

--Consent and complaint forms
--Forms with the potential for important consequences
--Written notices of rights, denial, loss, or decreases in benefits or 
services, and hearings
--Notices advising LEP persons of free language assistance
--Written tests that do not assess English language competency, but 
test competency for a particular license, job, or skill for which 
knowing English is not required
--Applications to participate in a recipient's program or activity or 
to receive recipient benefits or services.

    Whether or not a document is ``vital'' may depend upon the 
importance of the program, information, encounter, or service involved, 
and the consequence to the LEP person if the information in question is 
not provided accurately or in a timely manner. For instance, 
applications for certain recreational programs should not generally be 
considered vital, whereas applications for drug and alcohol counseling 
should be considered vital. Where appropriate, recipients are encourage 
to create a plan for consistently determining, over time and across its 
various activities, what documents are ``vital'' to the meaningful 
access of the LEP populations they serve.
    Classifying a document as vital or non-vital is sometimes 
difficult, especially in the case of outreach materials like brochures 
or other information on rights and services. To have meaningful access, 
service, benefit, or information, LEP persons may need to be aware of 
their existence. Thus, vital information may include, for instance, 
documents indicating how to obtain oral assistance in understanding 
other information not contained in the translated documents. Lack of 
awareness that a particular program, right, or service exists may 
effectively deny LEP individuals meaningful access. Thus, where a 
recipient is engaged in community outreach activities in furtherance of 
its activities, it should regularly assess the needs of the populations 
frequently encountered or affected by the program or activity to 
determine whether certain critical outreach materials should be 
translated. Community organizations may be helpful in determining what 
outreach materials may be most helpful to translate. In addition, the 
recipient should consider whether translations of outreach material may 
be made more effective when done in tandem with other outreach methods, 
including utilizing the ethnic media, schools, religious, and community 
organizations to spread a message. Sometimes a document includes both 
vital and non-vital information. This may be the case when the document 
is very large. It may also be the case when the title and a phone 
number for obtaining more information on the contents of the document 
in frequently-encountered languages other than English is critical, but 
the document is sent out to the general public and cannot reasonably be 
translated into many languages. Thus, vital information may include, 
for instance, the provision of information in appropriate languages 
other than English regarding where a LEP person might obtain an 
interpretation or translation of the document.
    Into What Languages Should Documents be Translated? The languages 
spoken by the LEP individuals with whom the recipient has contact 
determine the languages into which vital documents should be 
translated. A distinction should be made, however, between the more 
frequent languages encountered by a recipient and less common 
languages. Many recipients serve communities in large cities or across 
the country. These recipients may serve LEP persons who speak dozens 
and sometimes over 100 different languages. To translate all written 
materials into all of those languages is unrealistic. Although recent 
technological advances have made it easier for recipients to store and 
share translated documents, such an undertaking would incur substantial 
costs and require substantial resources. Nevertheless, well-
substantiated claims of lack of resources to translate all vital 
documents into dozens of languages do not necessarily relieve the 
recipient of the obligation to translate those documents into at least 
several of the more frequently encountered languages and to set 
benchmarks for continued translations over time. As a result, the 
extent of the recipient's obligation to provide written translations of 
documents should be determined by the recipient on a case-by-case 
basis, looking at the totality of the circumstances in light of the 
four-factor analysis. Because translation is a one-time expense, 
consideration should be given to whether the up-front cost of 
translating a document (as opposed to oral interpretation) should be 
amortized over the likely life span of the document when applying this 
four-factor analysis.
    Safe Harbor. Many recipients would like to ensure with greater 
certainty that they comply with their obligations to provide written 
translations in languages other than English. Paragraphs (a) and (b) 
outline the circumstances that can provide a ``safe harbor'' for 
recipients regarding the requirements for translation of written 
materials. A ``safe harbor'' means that if a recipient provides written 
translations under these circumstances, such action will be considered 
strong evidence of compliance with the recipient's written-translation 
obligations.
    The failure to provide written translations under the circumstances 
outlined in paragraphs (a) and (b) does not mean there is non-
compliance. Rather, they provide a common starting point for recipients 
to consider whether, and at what point the importance of the service, 
benefit, or activity involved; the nature of the information sought; 
and the number or proportion of LEP persons served call for written 
translations of commonly-used forms into frequently-encountered 
languages other than English. Thus, these paragraphs merely provide a 
guide for recipients that would like greater certainty of compliance 
than can be provided by a fact-intensive, four-factor analysis.

    Example: Even if the safe harbors are not used, if written 
translation of a certain document(s) would be so burdensome as to 
defeat the legitimate objectives of a recipient's program, the 
translation of the written materials is not necessary. Other ways of 
providing meaningful access, such as effective oral interpretation 
of certain vital documents, might be acceptable under such 
circumstances.

    Safe Harbor. The following actions will be considered strong 
evidence of compliance with the recipient's written-translation 
obligations:
    (a) The recipient provides written translations of vital documents 
for each eligible LEP language group that constitutes five percent or 
1,000, whichever is less, of the population of persons eligible to be 
served or likely to be affected or encountered. Translation of other 
documents, if needed, can be provided orally; or
    (b) If there are fewer than 50 persons in a language group that 
reaches the five percent trigger in (a), the recipient does not 
translate vital written materials but provides written notice in the 
primary language of the LEP language group of the right to receive 
competent oral interpretation of those written materials, free of cost.
    These safe harbor provisions apply to the translation of written 
documents only. They do not affect the requirement to provide 
meaningful access to LEP individuals through competent oral

[[Page 34706]]

interpreters where oral language services are needed and are 
reasonable.
    Competence of Translators. As with oral interpreters, translators 
of written documents should be competent. Many of the same 
considerations apply. However, the skill of translating is very 
different from the skill of interpreting, and a person who is a 
competent interpreter may or may not be competent to translate.
    Particularly where legal or other vital documents are being 
translated, competence can often be achieved by use of certified 
translators. Certification or accreditation may not always be possible 
or necessary. Competence can often be ensured by having a second, 
independent translator ``check'' the work of the primary translator. 
Alternatively, one translator can translate the document, and a second, 
independent translator could translate it back into English to check 
that the appropriate meaning has been conveyed. This is called ``back 
translation.''
    Translators should understand the expected reading level of the 
audience and, where appropriate, have fundamental knowledge about the 
target language group's vocabulary and phraseology. Sometimes direct 
translation of materials results in a translation that is written at a 
much more difficult level than the English language version or has no 
relevant equivalent meaning. Community organizations may be able to 
help consider whether a document is written at a good level for the 
audience. Likewise, consistency in the words and phrases used to 
translate terms of art, legal, or other technical concepts helps avoid 
confusion by LEP individuals and may reduce costs.
    There may be languages that do not have an appropriate direct 
translation of some terms, and the translator should be able to provide 
an appropriate translation. The translator should likely also make the 
recipient aware of this. Recipients can then work with translators to 
develop a consistent and appropriate set of descriptions of these terms 
in that language that can be used again, when appropriate. Recipients 
will find it more effective and less costly if they try to maintain 
consistency in the words and phrases used to translate terms of art and 
legal or other technical concepts. Creating or using already-created 
glossaries of commonly used terms may be useful for LEP persons and 
translators and cost effective for the recipient. Providing translators 
with examples of previous accurate translations of similar material by 
the recipient, other recipients, or Federal agencies may be helpful.
    While quality and accuracy of translation services is critical, the 
quality and accuracy of translation services is nonetheless part of the 
appropriate mix of LEP services required. For instance, documents that 
are simple and have no legal or other consequence for LEP persons who 
rely on them may require translators that are less skilled than 
important documents with technical legal, medical, or other information 
upon which reliance has important consequences. The permanent nature of 
written translations, however, imposes additional responsibility on the 
recipient to ensure that the quality and accuracy permit meaningful 
access by LEP persons.

VII. Elements of Effective Plan on Language Assistance for LEP Persons

    After completing the four-factor analysis and deciding what 
language assistance services are appropriate, a recipient should 
develop an implementation plan. The development and maintenance of a 
periodically-updated written plan on language assistance for LEP 
persons (``LEP plan'') for use by recipient employees serving the 
public will likely be the most appropriate and cost effective means of 
documenting compliance and providing a framework for the provision of 
timely and reasonable language assistance. Moreover, such written plans 
would likely provide additional benefits to a recipient's managers in 
the areas of training, administration, planning, and budgeting. These 
benefits should lead most recipients to document in a written LEP plan 
their language assistance services, and how staff and LEP persons can 
access those services. Despite these benefits, certain recipients, such 
as recipients serving very few LEP persons and recipients with very 
limited resources, may choose not to develop a written LEP plan. 
However, the absence of a written LEP plan does not obviate the 
underlying obligation to ensure meaningful access by LEP persons to a 
recipient's program or activities. Accordingly, in the event that a 
recipient elects not to develop a written plan, it should consider 
alternative ways to articulate in some other reasonable manner their 
plan for providing meaningful access. Entities having significant 
contact with LEP persons, such as schools, religious organizations, 
community groups, and groups working with new immigrants can be very 
helpful in providing important input into this planning process from 
the beginning.
    The following five steps may be helpful in designing an LEP plan 
and are typically part of an effective written implementation plan, 
however, the absence of them does not necessarily mean there is non-
compliance.

(1) Identifying LEP Individuals Who Need Language Assistance

    The first two factors in the four-factor analysis require an 
assessment of the number or proportion of LEP individuals eligible to 
be served or encountered and the frequency of encounters. This requires 
recipients to identify LEP persons with whom it has contact.
    One way to determine the language of communication is to use 
language identification cards (or ``I speak cards''), which invite LEP 
persons to identify their language needs to staff. Such cards, for 
instance, might say ``I speak Spanish,'' in English and Spanish or ``I 
speak Vietnamese in English and Vietnamese'', etc. To reduce costs of 
compliance, the Federal Government has made a set of these cards 
available on the Internet. The Census Bureau ``I speak card'' can be 
found and downloaded at http://www.usdoj.gov/crt/cor/13166.htm. When 
records are normally kept of past interactions with members of the 
public, the language of the LEP person can be included as part of the 
record. In addition to helping employees identify the language of LEP 
persons they encounter, this process will help in future applications 
of the first two factors of the four-factor analysis. In addition, 
posting notices in commonly encountered languages notifying LEP persons 
of language assistance will encourage them to self-identify.

(2) Language Assistance Measures

    An effective LEP plan includes information about the ways in which 
language assistance will be provided. For instance, recipients may want 
to include information on at least the following:

--Types of language services available.
--How staff can obtain those services.
--How to respond to LEP callers.
--How to respond to written communications from LEP persons.
--How to respond to LEP individuals who have in-person contact with 
recipient staff.
--How to ensure competency of interpreters and translation services.

(3) Training Staff

    Staff should know their obligations to provide meaningful access to 
information and services for LEP

[[Page 34707]]

persons. An effective LEP plan includes training to ensure that:

--Staff knows about LEP policies and procedures.
--Staff having contact with the public is trained to work effectively 
with in-person and telephone interpreters.

    Recipients may want to include this training as part of the 
orientation for new employees. It is important to ensure that all 
employees in public contact positions are properly trained. Recipients 
have flexibility in deciding the manner in which the training is 
provided. The more frequent the contact with LEP persons, the greater 
the need will be for in-depth training. Staff with little or no contact 
with LEP persons may only have to be aware of an LEP plan. However, 
management staff, even if they do not interact regularly with LEP 
persons, should be fully aware of and understand the plan so they can 
reinforce its importance and ensure its implementation by their staff.

(4) Providing Notice to LEP Persons

    Once an agency has decided, based on the four factors, that it will 
provide language services, it is important for the recipient to let LEP 
persons know that those services are available and that they are free 
of charge. Recipients should provide this notice in a language LEP 
persons will understand. Examples of notification that recipients 
should consider include:
    Posting signs in intake areas and other entry points. When language 
assistance is needed to ensure meaningful access to information and 
services, it is important to provide notice in appropriate languages in 
intake areas or initial points of contact so that LEP persons can learn 
how to access those language services. This is particularly true in 
areas with high volumes of LEP persons seeking access to services or 
activities provided by VA recipients. For instance, signs in intake 
offices could state that free language assistance is available. The 
signs should be translated into the most common languages encountered. 
They should explain how to get the language. The Social Security 
Administration has made such signs available on their Web site. These 
signs could be modified for recipient use.
    Stating in outreach documents that language services are available 
from the agency. Announcements could be in, for instance, brochures, 
booklets, and in outreach and recruitment information. These statements 
should be translated into the most common languages and could be 
``tagged'' onto the front of common documents.
    Working with community-based organizations and other stakeholders 
to inform LEP individuals of the recipient.
    Using a telephone voice mail menu. The menu could be in the most 
common languages encountered. It should provide information about 
available language assistance services and how to get them.
    Including notices in local newspapers in languages other than 
English.
    Providing notices on non-English-language radio and television 
stations about the available language assistance services and how to 
get them.
    Presentations and/or notices at schools and religious 
organizations.

(5) Monitoring and Updating the LEP Plan

    Recipients should, where appropriate, have a process for 
determining, on an ongoing basis, whether new documents, programs, 
services, and activities need to be made accessible for LEP 
individuals, and they may want to provide notice of any changes in 
services to the LEP public and to employees. In addition, recipients 
should consider whether changes in demographics, types of services, or 
other needs require annual reevaluation of their LEP plan. Less 
frequent reevaluation may be more appropriate where demographics, 
services, and needs are more static. One good way to evaluate the LEP 
plan is to seek feedback from the community.
    In their reviews, recipients may want to consider assessing changes 
in:

--Current LEP populations in service area or population affected or 
encountered.
--Frequency of encounters with LEP language groups.
--Nature and importance of activities to LEP persons.
--Availability of resources, including technological advances and 
sources of additional resources, and the costs imposed.
--Whether existing assistance is meeting the needs of LEP persons.
--Whether staff knows and understands the LEP plan and how to implement 
it.
--Whether identified sources for assistance are still available and 
viable.
--In addition to these five elements, effective plans set clear goals, 
management accountability, and opportunities for community input and 
planning throughout the process.

VIII. Voluntary Compliance Effort

    The goal for Title VI and Title VI regulatory enforcement is to 
achieve voluntary compliance. The requirement to provide meaningful 
access to LEP persons is enforced and implemented by VA through the 
procedures identified 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 VA will investigate whenever 
it receives a complaint, report, or other information that alleges or 
indicates possible noncompliance with Title VI or its regulations. If 
the investigation results in a finding of compliance, VA 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, VA 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 must attempt to secure voluntary compliance through 
informal means. If the matter cannot be resolved informally, VA must 
secure compliance through: (a) Federal assistance after the recipient/
covered entity has been given an opportunity for an administrative 
hearing and/or (b) referral to a DOJ litigation section to for 
injunctive relief or other enforcement proceedings; or (c) any other 
means authorized by law.
    As the Title VI regulations set forth above indicate, VA 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. VA 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, VA 
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. In determining a recipient's 
compliance with Title VI and the regulations, VA's primary concern is 
to ensure that the recipient's policies and procedures provide 
meaningful access for LEP persons to the recipient's programs and 
activities.
    While all recipients must work toward building systems that will 
ensure access for LEP individuals, VA acknowledges that the 
implementation of a comprehensive system to serve LEP individuals is a 
process and that a system will evolve over time as it is implemented 
and periodically

[[Page 34708]]

reevaluated. As recipients take reasonable steps to provide meaningful 
access to Federally assisted programs and activities for LEP persons, 
VA will look favorably on intermediate steps recipients take that are 
consistent with this Guidance, and that, as part of a broader 
implementation plan or schedule, move their service delivery system 
toward providing full access to LEP persons. This does not excuse 
noncompliance but instead recognizes that full compliance in all areas 
of a recipient's activities and for all potential language minority 
groups may reasonable require a series of implementing actions over a 
period of time. However, in developing any phased implementation 
schedule, recipients should ensure that the provision of appropriate 
assistance for significant LEP populations or with respect to 
activities having a significant impact on the health, safety, legal 
rights, or livelihood of beneficiaries is addressed first. Recipients 
are encouraged to document their efforts to provide LEP persons with 
meaningful access to Federally assisted programs and activities.

[FR Doc. 03-14414 Filed 6-9-03; 8:45 am]
BILLING CODE 8320-01-P