Side-by-Side: Comparison of HHS Aug 2000/Feb 2002 LEP Guidance to

DOJ June 2002 and HHS Aug 2003 Guidance

As required by a DOJ memorandum (July 8, 2002) to increase consistency across the federal government with regard to the existence of LEP policies, HHS has reissued its LEP guidance utilizing a template guidance developed by DOJ.[1] The DOJ guidance was designed to be the model, and “Any deviations from the standards presented in the guidance will require. . .a written justification for those modifications, and an explanation of why those modifications are consistent with the law and with the need to ensure that recipients are not subject to differing standards.”[2] In a number of situations, unfortunately, the new HHS’ Guidance differs from DOJ’s, in ways that may diminish language access, without providing a justification for the variance. The key points with regard to which this occurs include:

  • States that some providers may not have to provide anylanguage access – “After applying the above four-factor analysis, a recipient may conclude that different language measures are sufficient for the different types of programs or activities in which it engages, or, in fact, that in certain circumstances, recipient-provided language services are not necessary” (seeHow Does Recipient Determine Extent of Obligation to Provide LEP Services);
  • Allows referral from one federal fund recipient to another “pursuant to an arrangement, where there is no discriminatory intent, the purpose is beneficial and will result in better access” (see Applying the 4 Factors);
  • Fails to specify, despite its inclusion in DOJ’s guidance, thatrecipients should ensure competency of the language service provider,no matter which of the strategies of interpretation are used(see Oral Interpretation);
  • Diminishes language from DOJ’s guidance regarding assessing appropriateness and competency when using family members and friends as interpreters (see Use of Family Members or Friends as Interpreter);
  • Reduces expectations for development of a language access plan(see Elements of an Effective Plan on Language Assistance – Training of Staff, Providing Notice to LEP Persons, Monitoring and Updating LEP Plan);

Issue / HHS Aug 2000/Feb 2002 Guidance / DOJ June 2002 Guidance / HHS Aug 2003 Guidance
Legal Background / Background – examines long history of Title VI cases – Lau v. Nichols, Yu Cong Eng et.al. v. Trinidad, Collector of Internal Revenue; Gutierrez v. Municipal Court of SE Judicial District; Garcia v. Gloor; US v. Uvalde Consolidated Independent School District
Lau v. Nichols – action required because school district failed to provide English lang. instruction to Chinese LEP students / Background – shortens legal background discussion
Lau v. Nichols – a San Francisco school districtthat had a significant number of non-English speaking students ofChinese origin was required to take reasonable steps to provide themwith a meaningful opportunity to participate in Federally fundededucational programs. / Same as DOJ
Who is Covered / Covered entities include:
  • any state/local agency, private institution or organization, 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 HHS directly or through another recipient
/ Department of Justice (DOJ) regulations require all recipients of Federal financial assistance from DOJ to providemeaningful access to LEP persons
Specifies DOJ covered entities
English-only laws – recipients continue to be subject to federal non-discrim req. / Specifically mentions exemption for Medicare Part B physicians
English-only laws – same as DOJ
Who is LEP / Individual who 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 / Individuals who do not speak English as their primary language andwho have a limited ability to read, write, speak, or understand Englishcan be limited English proficient, or “LEP,” entitled to languageassistance with respect to a particular type of service, benefit, orencounter.
Lists examples of populations likely to include LEP persons who areencountered and/or served by DOJ recipients and should be considered
when planning language services / Individuals who do not speak English as their primary language andwho have a limited ability to read, write, speak, or understand Englishmay be limited English proficient, or “LEP,” may be entitled to languageassistance with respect to a particular type of service, benefit, orencounter.
Provides examples of populations likely to include LEP –
  • persons seeking TANF and other social services;
  • persons seeking health and health-related services;
  • community members seeking to participate in health promotion or awareness activities;
  • persons who encounter the public health system;
  • parents/legal guardians of minors eligible for coverage concerning such programs

How Does Recipient Determine Extent of Obligation to Provide LEP Services / To ensure compliance with Title VI, recipients must take steps to ensure LEP persons eligible for their programs/services have meaningful access
Most important step – provide language assistance necessary to ensure access at no cost to LEP person
7 factors:
  • size of entity
  • size of eligible LEP population it serves
  • nature of program/service
  • objectives of program
  • total resources available to the recipient
  • frequency with which particular languages are encountered
  • frequency with which LEP persons come into contact w/ program
Steps taken by a recipient must ensure that LEP person is given adequate information, is able to understand the benefits/services available, and is able to receive those for which he/she is eligible
Recipient must also ensure that LEP person can effectively communicate the relevant circumstances of his/her situation to service provider / As with most government initiatives,this requires balancing several principles. While this Guidance
discusses that balance in some detail, it is important to note thebasic principles behind that balance:
  • ensure thatFederally-assisted programs aimed at the American public do not leavesome behind simply because they face challenges communicating inEnglish. This is of particular importance because, in many cases, LEPindividuals form a substantial portion of those encountered inFederally-assisted programs;
  • achieve this goal whilefinding constructive methods to reduce the costs of LEP requirements onsmall businesses, small local governments, or small non-profits thatreceive Federal financial assistance.
4 Factors – recipients are required to take reasonable steps to ensuremeaningful access to their programs and activities by LEP persons. While designed to be a flexible and fact-dependent standard, thestarting point is an individualized assessment that balances thefollowing four factors:
  • the number or proportion of LEP personseligible to be served or likely to be encountered by the program orgrantee;
  • the frequency with which LEP individuals come in contactwith the program;
  • the nature and importance of the program,activity, or service provided by the program to people's lives; and
  • the resources available to the grantee/recipient and costs.
After applying the above four-factor analysis, a recipient mayconclude that different language assistance measures are sufficient forthe different types of programs or activities in which it engages.
  • e.g. – some of a recipient's activities will be more important thanothers and/or have greater impact on or contact with LEP persons, andthus may require more in the way of language assistance.
/ 4 Factors – same as DOJ
After conducting 4 factor test, a recipient may conclude that different language measures are sufficient for the different types of programs or activities in which it engages, or, in fact, that in certain circumstances, recipient-provided language services are not necessary
  • Number of LEP
/ Persons likely to be served or likely to be directly affected by a recipient’s program are those who are in the geo area that has been approved by a federal grant agency and who either are eligible for benefits/services or otherwise might be directly affected by an entity’s contact
Where no service area has been approved, OCR will consider the relevant service area for determining persons eligible to be served as that designated/approved by the state/local agency or designated by the recipient itself, provided that these designations do not discriminatorily exclude certain populations / Number or proportion of LEP persons from a particularlanguage group served or encountered in the eligible servicepopulation. The greater the number or proportion of these LEP persons,the more likely language services are needed.
Where noservice area has previously been approved, the relevant service areamay be that which is approved by state or local authorities ordesignated by the recipient itself, provided that these designations do not themselves discriminatorily exclude certain populations. / Same as DOJ but specifies where a particular office of the county/city health dept. serves a large LEP population, the appropriate service area is most likely that office, and not the entire population served by the department
  • Frequency of Contact
/ Recipients should assess, as accurately as possible, the frequencywith which they have or should have contact with an LEP individual fromdifferent language groups seeking assistance.
The more frequent thecontact with a particular language group, the more likely that enhancedlanguage services in that language are needed.
The steps that arereasonable for a recipient that serves an LEP person on a one-timebasis will be very different than those expected from a recipient thatserves LEP persons daily. It is also advisable to consider thefrequency of different types of language contacts.
Even recipientsthat serve LEP persons on an unpredictable or infrequent basis shoulduse this balancing analysis to determine what to do if an LEPindividual seeks services under the program in question.
  • plan neednot be intricate; it may be as simple as being prepared to use one ofthe commercially-available telephonic interpretation services to obtainimmediate interpreter services.
  • in applying this standard, recipientsshould take care to consider whether appropriate outreach to LEPpersons could increase the frequency of contact with LEP languagegroups.
/
  • Same as DOJ

  • Nature and Importance of Recipient’s Program, Activity, Service
/ The more important the activity, information, service, or program,or the greater the possible consequences of the contact to the LEPindividuals, the more likely language services are needed. Theobligations to communicate rights to a person who is arrested or toprovide medical services to an ill or injured inmate differ, forexample, from those to provide bicycle safety courses or recreationalprogramming. A recipient needs to determine whether denial or delay ofaccess to services or information could have serious or even life-threatening implications for the LEP individual.
Mandatory Activities – decisions by aFederal, State, or local entity to make an activity compulsory can serve as strong evidence of theprogram's importance. / A recipient needs to determine whether the denial/delay of access to services/info could have serious or even life-threatening implications;
  • recipient should consider the importance and urgency – such as communication of info re: emergency surgery and obtaining informed consent prior to it
  • if service is important but not urgent – such as communication about and obtaining informed consent for elective surgery where delay will not have any adverse impact on patient’s health – it is more likely that language services are needed but can be delayed for a reasonable period of time
  • if neither important nor urgent – such as general public tour of facility – more likely that language services would not be needed
The obligation to communicate rights to a person whose benefits are being terminated or to provide medical services to an ill LEP patient differ, for example, from those to provide medical care for a healthy LEP person or to provide recreational programming
Mandatory Activities – same as DOJ
  • Resources Available and Costs
/ Resources and Costs – a recipient's level of resources and the costs that would beimposed on it may have an impact on the nature of the steps it shouldtake
  • smaller recipients with more limited budgets are not expected toprovide the same level of language services as larger recipients withlarger budgets
  • in addition, “reasonable steps” may cease to bereasonable where the costs imposed substantially exceed the benefits
  • large entities and those entities serving asignificant number or proportion of LEP persons should ensure thattheir resource limitations are well-substantiated before using thisfactor as a reason to limit language assistance. Such recipients mayfind it useful to be able to articulate, through documentation or insome other reasonable manner, their process for determining thatlanguage services would be limited based on resources or costs.
/ Resources and Costs – same as DOJ
Applying the 4 Factors / No “one-size-fits-all” solution for compliance
OCR makes its assessment of language assistance needed to ensure meaningful access on a case by case basis and a recipient will have considerable flexibility in determining precisely how to fulfill this obligation / Correct mix – should be based on what is both necessary and reasonable in light of 4 factor analysis / 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 – or to another recipient – for language assistance. In certain circumstances, pursuant to an arrangement, where there is no discriminatory intent, the purpose is beneficial and will result in better access, it may be appropriate for a recipient to refer the LEP beneficiary to another recipient
Correct mix – same as DOJ
  • general examples –
  • high need/low cost – it may be appropriate to hire bilingual staff/staff interpreters;
  • low importance/high costs – may not need to provide services;
  • somewhere in between – may be appropriate to use contract interpreters or telephone language lines
  • example – dentist in almost exclusively English-speaking neighborhood who has rarely encountered LEP patient and has never encountered a Hmong-speaking patient may not need, pursuant to T.VI to provide language services for an LEP Hmong patient who comes in for a dental cleaning

Competency of Interpreters / In order to provide effective services to LEP persons, a recipient must ensure that it uses persons who are competent to provide interpreter services. Competence does not necessarily mean formal certification though it is helpful. On the other hand, competency requires more than self-identification as bilingual. The competency requirement contemplates demonstrated proficiency in both English and the other language, orientation and training that includes the skills and ethics of interpreting (e.g. issues of confidentiality),fundamental knowledge in both languages of specialized terms, or concepts peculiar to the recipient’s program, sensitivity to the LEP persons’ culture and a demonstrated ability to convey information in both languages accurately. A recipient must ensure that those persons it provides as interpreters are trained and demonstrate competency as interpreters. / Regardless of the type oflanguage service provided, quality and accuracy of those services canbe critical in order to avoid serious consequences to the LEP personand to the recipient. Recipients have substantial flexibility indetermining the appropriate mix.
Language abilities – being bilingualdoes not necessarily mean that a person has the ability to interpret.
Certification – competency does not necessarily mean formal certification
When using interpreters, recipients should ensure that they:
  • demonstrate proficiency in and ability to communicate informationaccurately in both English and in the other language and identify andemploy the appropriate mode of interpreting;
  • have knowledge in both languages of any specialized terms orconcepts peculiar to the entity's program or activity and of anyparticularized vocabulary and phraseology used by the LEP person;
  • regionalisms – many languages have “regionalisms,” or differences inusage. For instance, a word that may be understood to mean somethingin Spanish for someone from Cuba may not be so understood by someonefrom Mexico. In addition, because there may be languages which donot have an appropriate direct interpretation of some courtroom orlegal terms and the interpreter should be so aware and be able toprovide the most appropriate interpretation. The interpreter shouldlikely make the recipient aware of the issue and the interpreter andrecipient can then work to develop a consistent and appropriate setof descriptions of these terms in that language that can be usedagain, when appropriate.
  • understand and follow confidentiality and impartiality rules to thesame 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 withoutdeviating into a role as counselor, legal advisor, or other roles(particularly in court, administrative hearings, or law enforcementcontexts).
Some recipients, such as courts, may have additional self-imposedrequirements for interpreters. Where individual rights depend on
precise, complete, and accurate interpretation or translations,particularly in the contexts of courtrooms and custodial or otherpolice interrogations, the use of certified interpreters is stronglyencouraged.\10\ Where such proceedings are lengthy, the interpreterwill likely need breaks and team interpreting may be appropriate toensure accuracy and to prevent errors caused by mental fatigue ofinterpreters.
  • for a language in which no formal accreditation orcertification currently exists, courts and law enforcement agenciesshould consider a formal process for establishing the credentials ofthe interpreter.
/ Regardless of the type oflanguage service provided, quality and accuracy of those services is critical to avoid serious consequences to the LEP personand to the recipient. Recipients have substantial flexibility indetermining the appropriate mix.
Language abilities – recipients should be aware that competency requires more than self-identification as bilingual
Certification – same as DOJ
Recipients should take reasonable steps, given the circumstances, to assess whether the interpreters:
  • demonstrate proficiently in and ability to communicate info accurately in both languages and identify/employ the appropriate mode of interpreting
  • to the extent necessary, have knowledge in both languages of any specialized terms or concepts and of any particularized vocabulary/phraseology used by LEP person
  • understand and follow confidentiality and impartiality rules to the same extent as the recipient employee for whom they are interpreting and/or to extent their position requires
  • regionalisms – included in footnote 8, deletes reference to courtroom and legal terms
  • understand and adhere to their role as interpreters without deviating into other roles (i.e. counselor or legal advisor) where such deviation would be inappropriate