[Federal Register: June 10, 2003 (Volume 68, Number 111)]
[Notices]
[Page 34698-34708]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jn03-119]
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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requests comments on the Department of Veterans Affairs (VA) draft
guidance on improving access for persons with limited English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 OGCRegulations@mail.va.gov.
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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[[Page 34699]]
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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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,
[[Page 34700]]
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)
[[Page 34701]]
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\
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\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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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