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State Letter #05-20

Revised HHS "Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons"

Published: September 16, 2005
Types:
State Letter
Tags:
discrimination, lep, title vi

TO: STATE REFUGEE COORDINATORS
NATIONAL VOLUNTARY AGENCIES
OTHER INTERESTED PARTIES

FROM: Nguyen Van Hanh, Ph.D.
Director
Office of Refugee Resettlement

SUBJECT: Revised HHS "Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons"

On August 8, 2003, the Department of Health and Human Services (HHS) published the revised "Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons" (Revised HHS LEP Guidance). The new guidance was released to aid organizations receiving Federal financial assistance in fulfilling their responsibilities to Limited English Proficient (LEP) persons.

This State Letter supersedes the information previously provided in State Letter #00-18 "Policy Guidance on the Title VI Prohibition Against National Origin Discrimination As It Affects Persons With Limited English Proficiency."

Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color or national origin under any program that receives Federal financial assistance. The 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 and its implementing regulations against national origin discrimination.

HHS regulations require all recipients of Federal financial assistance from HHS to take reasonable steps to provide meaningful access to their programs, activities and services by LEP persons.2 Federal financial assistance can include grants, contracts, training, use of equipment, donations of surplus property, and other assistance. For Office of Refugee Resettlement (ORR) purposes, all State agencies, community-based organizations, national voluntary agencies, mutual assistance associations, facilities for unaccompanied alien children and any other organizations receiving ORR funding,3 either directly or as sub-recipients, must comply with Title VI. Organizations are required to comply with the provisions of Title VI even though the funding may only support one part of their program. As an example, if ORR provides funding to a state department of health in a preventive health discretionary grant, all of the operations within the state department of health, not only the preventive health program would be subject to Title VI.

Individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English may be LEP persons and may be eligible to receive language assistance with respect to a particular type of service, benefit or encounter. Populations seeking ORR-funded benefits and services, such as refugees, asylees, Cuban and Haitian entrants, victims of a severe form of trafficking, Amerasians and unaccompanied children are likely to include LEP persons and should be considered when planning language services.

The Revised HHS LEP Guidance does not change the law of Title VI, as applied to LEP persons. However, it does provide technical assistance by clarifying a grantee/recipient's obligations. Although many factors can be used, the Revised HHS LEP Guidance outlines the following four factors that may be considered when determining how to provide meaningful access to programs, services and activities for LEP persons:

  1. the number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee/recipient;
  2. the frequency with which LEP individuals come into contact with the program;
  3. the nature and importance of the activity or service provided by the program to the lives of LEP individuals; and
  4. the resources available to the grantee/recipient and costs associated with providing LEP services.

Balancing the above factors will help an organization understand and appropriately implement the level of language services necessary to provide meaningful access.

If an organization determines that it should provide language assistance services, it may want to develop an LEP implementation plan to address the needs of the LEP populations it serves. Even though a LEP plan is not required, it often is a cost-effective way to document compliance with Title VI. For that reason, ORR recommends that a grantee/recipient design and implement an LEP plan that is practical and appropriate for its organization and the populations it services.

A reference sheet summarizing the key provisions of the Revised HHS LEP Guidance is included with this State Letter. For more information and assistance on LEP issues, including developing and implementing an LEP plan, please visit the Federal government's LEP website at www.lep.gov.

Since 1980, ORR has funded state agencies, community-based organizations, mutual assistance associations, private voluntary agencies and local health departments as part of its mission to resettle refugees and others in search of freedom, peace, and opportunity for themselves and their families. A significant segment of this population is made up of LEP persons. Over the years, ORR-funded organizations have been at the forefront of assessment and the development of language assistance for LEP persons. ORR commends its grantees and contractors for their efforts and asks them to recommit to ensuring that LEP persons continue to receive appropriate language assistance.

If you have questions regarding any of the information contained in this State Letter, please contact Paul Gleason at (202) 401-4604 or by email at pgleason@acf.hhs.gov.

LEP Summary of the Revised Guidance (Facts Sheet)

1. See 68 FR 47311-47323 (2003);
2. 45 CFR § 80.3(b)(2).
3. While this State Letter refers to "Federal financial assistance" as "funding" for ease of reference, Federal financial assistance can include in-kind or other non-cash assistance.