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LIHEAP IM 2001-2 Policy Guidance on Serving Persons with Limited English Proficiency

Special Topics

Published: October 10, 2000
Audience:
Low Income Home Energy Assistance Program (LIHEAP)
Category:
Guidance, Policies, Procedures, Information Memorandums (IM)


[Federal Register: August 30, 2000 (Volume 65, Number 169)]
[Notices]
[Page 52762-52774]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30au00-97]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office for Civil Rights


Title VI of the Civil Rights Act of 1964; Policy Guidance on the
Prohibition Against National Origin Discrimination As It Affects
Persons With Limited English Proficiency

AGENCY: Office for Civil Rights, HHS.

ACTION: Notice of policy guidance with request for comment.

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

DATES: This guidance is effective immediately. Comments must be
submitted on or before October 30, 2000. OCR will review all comments
and will determine what modifications to the policy guidance, if any,
are necessary.

ADDRESSES: Interested persons should submit written comments to Ms.
Carole Brown, Office for Civil Rights, Room 506F, U.S. Department of
Health and Human Services, 200 Independence Avenue, S.W., Washington,
D.C. 20201. Comments may also be submitted by e-mail at
lepcoms@os.dhhs.gov.

FOR FURTHER INFORMATION CONTACT: Carole Brown or Ronald Copeland at the
Office for Civil Rights, Room 506F, U.S. Department of Health and Human
Services, 200 Independence Avenue, S.W., Washington, D.C. 20201,
telephone 202-619-0805 or 202-619-0553; TDD: 1-800-537-7697.
Arrangements to receive the policy in an alternative format may be made
by contacting the named individuals.

SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of 1964, 42
U.S.C. 2000d et. seq. and its implementing regulation at 45 CFR Part 80
provide that no person shall be subjected to discrimination on the
basis of race, color or national origin under any program or activity
that receives Federal financial assistance.
    The purpose of this policy guidance is to clarify the
responsibilities of providers of health and social services who receive
Federal financial assistance from the U.S. Department of Health and
Human Services (HHS) (``recipients,'' ``providers'' or ``covered
entities''), and assist them in fulfilling their responsibilities to
Limited English Proficient (LEP) persons, pursuant to Title VI of the
Civil Rights Act of 1964. The policy guidance reiterates HHS'
longstanding position that in order to avoid discrimination against LEP
persons on grounds of national origin, health and social service
providers must take adequate steps to ensure that such persons receive
the language assistance necessary to afford them meaningful access to
their services, free of charge. The guidance also clarifies for health
and social service providers, and members of the public, that a
recipient/covered entity must ensure that eligible LEP persons have
meaningful access to programs and services. The guidance also provides
examples of policies and practices that OCR would find violative of
Title VI, and sets out the policies, procedures and other steps that
recipients can take to ensure meaningful access to their programs by
LEP persons.
    The guidance does not impose any new requirements but reiterates
longstanding Title VI principles that OCR has been enforcing for over
30 years. The guidance discusses methods by which recipient/covered
entities can meet their obligation to provide oral interpretation to
LEP persons. The guidance also outlines the general parameters of a
recipient/covered entity's obligation to provide translation of written
materials, providing examples that illustrate both the importance of
such translation and the flexibility that recipients have in meeting
this obligation.
    For recipient/covered entities who desire greater certainty in
understanding some specific circumstances under which OCR will find
them in compliance with the obligation to translate written materials,
the guidance contains ``safe harbors.'' A recipient/covered entity that
translates written materials under circumstances outlined in the ``safe
harbor'' provisions will have assurance that OCR will find it in
compliance with its Title VI obligation regarding translation of
written materials. These ``safe harbor'' provisions are not mandatory
requirements and do not establish numerical thresholds that trigger a
requirement for the translation of documents into languages other than
English. They are one way for a recipient/covered entity to be assured
that it has met the obligation to translate. In fact, the guidance
explicitly states that the failure to meet the ``safe harbors'' will
not result in a finding of noncompliance, but that OCR will review a
number of other factors in determining compliance.
    During the past 30 years, OCR has provided substantial technical
assistance to recipient/covered entities who were seeking to ensure
that LEP persons can meaningfully access their

[[Page 52763]]

programs or services. This guidance synthesizes that experience so as
to better assist recipient/covered entities in meeting their
responsibilities and also stresses OCR's legal obligation and
commitment to seeking voluntary compliance by recipient/covered
entities and its commitment to providing technical assistance. OCR will
continue to be available to provide such assistance.
    This policy guidance addresses situations and issues presented by
HHS-funded health and social service programs and is not necessarily
transferable to other federal programs or contexts.
    The text of the guidance appears below. Appendix A to the guidance
is a series of questions and answers that provides a useful summary of
a number of the major aspects of the guidance.

    Dated: August 3, 2000.
Thomas E. Perez,
Director, Office for Civil Rights.

Policy Guidance

Title VI Prohibition Against National Origin Discrimination As It
Affects Persons With Limited English Proficiency

A. Background

    English is the predominant language of the United States. According
to the 1990 Census, English is spoken by 95% of its residents. Of those
U.S. residents who speak languages other than English at home, the 1990
Census reports that 57% above the age of four speak English ``well to
very well.''
    The United States is also, however, home to millions of national
origin minority individuals who are ``limited English proficient''
(LEP). That is, they cannot speak, read, write or understand the
English language at a level that permits them to interact effectively
with health care providers and social service agencies. Because of
these language differences and their inability to speak or understand
English, LEP persons are often excluded from programs, experience
delays or denials of services, or receive care and services based on
inaccurate or incomplete information.
    In the course of its enforcement activities, OCR has found that
persons who lack proficiency in English frequently are unable to obtain
basic knowledge of how to access various benefits and services for
which they are eligible, such as the State Children's Health Insurance
Program (SCHIP), Medicare, Medicaid or Temporary Assistance to Needy
Families (TANF) benefits, clinical research programs, or basic health
care and social services. For example, many intake interviewers and
other front line employees who interact with LEP individuals are
neither bilingual nor trained in how to properly serve an LEP person.
As a result, the LEP applicant all too often is either turned away,
forced to wait for substantial periods of time, forced to find his/her
own interpreter who often is not qualified to interpret, or forced to
make repeated visits to the provider's office until an interpreter is
available to assist in conducting the interview.
    The lack of language assistance capability among provider agency
employees has especially adverse consequences in the area of
professional staff services, such as health services. Doctors, nurses,
social workers, psychologists, and other professionals provide vitally
important services whose very nature requires the establishment of a
close relationship with the client or patient that is based on empathy,
confidence and mutual trust. Such intimate personal relationships
depend heavily on the free flow of communication between professional
and client. This essential exchange of information is difficult when
the two parties involved speak different languages; it may be impeded
further by the presence of an unqualified third person who attempts to
serve as an interpreter.
    Some health and social service providers have sought to bridge the
language gap by encouraging language minority clients to provide their
own interpreters as an alternative to the agency's use of qualified
bilingual employees or interpreters. Persons of limited English
proficiency must sometimes rely on their minor children to interpret
for them during visits to a health or social service facility.
Alternatively, these clients may be required to call upon neighbors or
even strangers they encounter at the provider's office to act as
interpreters or translators.
    These practices have severe drawbacks and may violate Title VI of
the Civil Rights Act of 1964. In each case, the impediments to
effective communication and adequate service are formidable. The
client's untrained ``interpreter'' is often unable to understand the
concepts or official terminology he or she is being asked to interpret
or translate. Even if the interpreter possesses the necessary language
and comprehension skills, his or her mere presence may obstruct the
flow of confidential information to the provider. This is because the
client would naturally be reluctant to disclose or discuss intimate
details of personal and family life in front of the client's child or a
complete stranger who has no formal training or obligation to observe
confidentiality.
    When these types of circumstances are encountered, the level and
quality of health and social services available to persons of limited
English proficiency stand in stark conflict to Title VI's promise of
equal access to federally assisted programs and activities. Services
denied, delayed or provided under adverse circumstances have serious
and sometimes life threatening consequences for an LEP person and
generally will constitute discrimination on the basis of national
origin, in violation of Title VI. Accommodation of these language
differences through the provision of effective language assistance will
promote compliance with Title VI. Moreover, by ensuring accurate client
histories, better understanding of exit and discharge instructions, and
better assurances of informed consent, providers will better protect
themselves against tort liability, malpractice lawsuits, and charges of
negligence.
    Although OCR's enforcement authority derives from Title VI, the
duty of health and human service providers to ensure that LEP persons
can meaningfully access programs and services flows from a host of
additional sources, including federal and state laws and regulations,
managed care contracts, and health care accreditation organizations.\1\
In addition, the duty to provide appropriate language assistance to LEP
individuals is not limited to the health and human service context.
Numerous federal laws require the provision of language assistance to
LEP individuals seeking to access critical services and activities. For
instance, the Voting Rights Act bans English-only elections in certain
circumstances and outlines specific measures that must be taken to
ensure that language minorities can participate in elections. See 42
U.S.C. 1973b(f)(1). Similarly, the Food Stamp Act of 1977 requires
states to provide written and oral language assistance to LEP persons
under certain circumstances. 42 U.S.C. Section 2020(e)(1) and (2).
These and other provisions reflect the sound judgment that providers of
critical services and benefits bear the responsibility for ensuring
that LEP individuals can meaningfully access their programs and
services.
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    \1\ A description of these requirements is included as Appendix
B to this policy guidance.
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    OCR issued internal guidance to its staff in January 1998 on a
recipient's obligation to provide language assistance to LEP persons.
That