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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)


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guidance was intended to ensure consistency in OCR's investigation of
LEP cases. This current guidance clarifies for recipient/covered
entities and the public, the legal requirements under Title VI that OCR
has been enforcing for the past 30 years.
    This policy guidance is consistent with a Department of Justice
(DOJ) directive noting that recipient/covered entities have an
obligation pursuant to Title VI's prohibition against national origin
discrimination to provide oral and written language assistance to LEP
persons.\2\ It is also consistent with a government-wide Title VI
regulation issued by DOJ in 1976, ``Coordination of Enforcement of
Nondiscrimination in Federally Assisted Programs,'' 28 C.F.R. Part 42,
Subpart F, that addresses the circumstances in which recipient/covered
entities must provide written language assistance to LEP persons.\3\
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    \2\ The DOJ directive was issued on August 11, 2000.
    \3\ The DOJ coordination regulations at 28 C.F.R. Section
42.405(d)(1) provide that ``[w]here a significant number or
proportion of the population eligible to be served or likely to be
directly affected by a federally assisted program (e.g., affected by
relocation) needs service or information in a language other than
English in order effectively to be informed of or to participate in
the program, the recipient shall take reasonable steps, considering
the scope of the program and the size and concentration of such
population, to provide information in appropriate languages to such
persons. This requirement applies with regard to written material of
the type which is ordinarily distributed to the public.''
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B. Legal Authority

1. Introduction
    Over the last 30 years, OCR has conducted thousands of
investigations and reviews involving language differences that impede
the access of LEP persons to medical care and social services. Where
the failure to accommodate language differences discriminates on the
basis of national origin, OCR has required recipient/covered entities
to provide appropriate language assistance to LEP persons. For
instance, OCR has entered into voluntary compliance agreements and
consent decrees that require recipients who operate health and social
service programs to ensure that there are bilingual employees or
language interpreters to meet the needs of LEP persons seeking
services. OCR has also required these recipient/covered entities to
provide written materials and post notices in languages other than
English. See Mendoza v. Lavine, 412 F.Supp. 1105 (S.D.N.Y. 1976); and
Asociacion Mixta Progresista v. H.E.W., Civil Number C72-882 (N.D. Cal.
1976). The legal authority for OCR's enforcement actions is Title VI of
the Civil Rights Act of 1964, the implementing regulations, and a
consistent body of case law. The legal authority is described below.
2. Statute and Regulation
    Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000d et. seq. states: ``No person in the United States shall
on the ground of race, color or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance.''
    Regulations implementing Title VI, provide in part at 45 CFR
Section 80.3 (b):
    ``(1) A recipient under any program to which this part applies may
not, directly or through contractual or other arrangements, on ground
of race, color, or national origin:
    (i) Deny an individual any service, financial aid, or other benefit
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to an
individual which is different, or is provided in a different manner,
from that provided to others under the program;
    (2) A recipient, in determining the types of services, financial
aid, or other benefits, or facilities which will be provided under any
such program or the class of individuals to whom, or the situations in
which such services, financial aid or other benefits, or facilities
will be provided .-.-. may not directly, or through contractual or
other arrangements, utilize criteria or methods of administration which
have the effect of subjecting individuals to discrimination, because of
their race, color or national origin, or have the effect of defeating
or substantially impairing accomplishment of the objectives of the
program with respect to individuals of a particular, race, color or
national origin.'' (emphasis added).
3. Case Law
    Extensive case law affirms the obligation of recipients of federal
financial assistance to ensure that LEP persons can meaningfully access
federal-assisted programs.
    The U.S. Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974),
recognized that recipients of Federal financial assistance have an
affirmative responsibility, pursuant to Title VI, to provide LEP
persons with meaningful opportunity to participate in public programs.
In Lau v. Nichols, the Supreme Court ruled that a public school
system's failure to provide English language instruction to students of
Chinese ancestry who do not speak English denied the students a
meaningful opportunity to participate in a public educational program
in violation of Title VI of the Civil Rights Act of 1964.
    The Lau decision affirmed the U.S. Department of Health, Education
and Welfare's Policy Memorandum issued on May 25, 1970, titled
``Identification of Discrimination and the Denial of Services on the
Basis of National Origin,'' 35 FR 11,595. The memorandum states in
part: ``Where the inability to speak and understand the English
language excludes national origin minority group children from
effective participation in the educational program offered by a school
district, the district must take affirmative steps to rectify the
language deficiency in order to open its instructional program to these
students.''
    As early as 1926, the Supreme Court recognized that language rules
were often discriminatory. In Yu Cong Eng et. al. v. Trinidad,
Collector of Internal Revenue, 271 U.S. 500 (1926), the Supreme Court
found that a Philippine Bookkeeping Act that prohibited the keeping of
accounts in languages other than English, Spanish and Philippine
dialects violated the Philippine Bill of Rights that Congress had
patterned after the U.S. Constitution. The Court found that the Act
deprived Chinese merchants, who were unable to read, write or
understand the required languages, of liberty and property without due
process.
    In Gutierrez v. Municipal Court of S.E. Judicial District, 838 F.2d
1031,1039 (9th Cir. 1988), vacated as moot, 490 U.S. 1016 (1989), the
court recognized that requiring the use of English only is often used
to mask national origin discrimination. Citing McArthur, Worried About
Something Else, 60 Int'l J. Soc. Language, 87, 90-91 (1986), the court
stated that because language and accents are identifying
characteristics, rules that have a negative effect on bilingual
persons, individuals with accents, or non-English speakers may be mere
pretexts for intentional national origin discrimination.
    Another case that noted the link between language and national
origin discrimination is Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980)
cert. denied, 449 U.S. 1113 (1981). The court found that on the facts
before it a workplace English-only rule did not discriminate on the
basis of national origin since the complaining employees were
bilingual. However, the court stated that ``to a person who speaks only
one tongue or to a person who has difficulty using

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another language other than the one spoken in his home, language might
well be an immutable characteristic like skin color, sex or place of
birth.'' Id. At 269.
    The Fifth Circuit addressed language as an impermissible barrier to
participation in society in U.S. v. Uvalde Consolidated Independent
School District, 625 F2d 547 (5th Cir. 1980). The court upheld an
amendment to the Voting Rights Act which addressed concerns about
language minorities, the protections they were to receive, and
eliminated discrimination against them by prohibiting English-only
elections.
    Most recently, the Eleventh Circuit in Sandoval v. Hagan, 197 F. 3d
484 (11th Cir. 1999), petition for cert. filed, May 30, 2000, held that
the State of Alabama's policy of administering a driver's license
examination in English only was a facially neutral practice that had an
adverse effect on the basis of national origin, in violation of Title
VI. The court specifically noted the nexus between language policies
and potential discrimination based on national origin. That is, in
Sandoval, the vast majority of individuals who were adversely affected
by Alabama's English-only driver's license examination policy were
national origin minorities.
    In the health and human service context, a recipient's failure to
provide appropriate language assistance to LEP individuals parallels
many of the fact situations discussed in the cases above and, as in
those cases, may have an adverse effect on the basis of national
origin, in violation of Title VI.
    The Title VI regulations prohibit both intentional discrimination
and policies and practices that appear neutral but have a
discriminatory effect. Thus, a recipient/covered entity's policies or
practices regarding the provision of benefits and services to LEP
persons need not be intentional to be discriminatory, but may
constitute a violation of Title VI if they have an adverse effect on
the ability of national origin minorities to meaningfully access
programs and services. Accordingly, it is useful for recipient/covered
entities to examine their policies and practices to determine whether
they adversely affect LEP persons. This policy guidance provides a
legal framework to assist recipient/covered entities in conducting such
assessments.

C. Policy Guidance

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