HHS OCR Guidance on Assuring Access to Welfare Programs for Those With Limited-English Proficiency
From Dec. 2000 Welfare News
Grassroots groups and advocates have reported that some state and local welfare agencies and contractors providing welfare-to-work services fail to provide translation services and materials in other languages to low-income individuals with limited-English proficiency (LEP). As a result, LEP individuals are denied access to critical federally-funded benefits and services, such as TANF cash assistance, welfare-to-work services, Medicaid, and Food Stamps.
The failure to provide meaningful language access to such programs may violate Title VI of the Civil Rights Act of 1964 which bars discrimination based on national origin, among other factors, by any program or activity receiving federal assistance. Title VI and implementing regulations prohibit both intentional discrimination and facially neutral policies and practices that have the effect of discriminating. HHS’s Office of Civil Rights (OCR) is responsible for assuring Title VI compliance by entities that receive federal funds through HHS. (In addition, other federal and state statutes dealing with specific programs or agencies may impose language access obligations. For example, the federal Food Stamp Act requires oral and written language assistance to LEP individuals in certain situations.)
To address language access problems in welfare and related programs, advocates and grassroots groups have surveyed low-income individuals about their experiences, produced reports documenting problems, filed complaints with HHS’s Office of Civil Rights, brought litigation, and engaged in other informal advocacy with OCR staff. The following article describes some recent efforts.
Advocates and grassroots groups now have another useful tool for their advocacy to improve language access policies. On August 29, 2000 HHS’s OCR issued extensive guidance, restating the longstanding obligation of welfare and health agencies to assure meaningful access to federally-funded programs by providing oral and written language assistance at no cost to LEP individuals. The guidance has detailed recommendations on how covered entities can assure meaningful language access, examples of questionable practices as well as innovative practices, and a model language access plan. The guidance is not an exhaustive discussion of what constitutes compliance with Title VI. OCR notes that covered entities have flexibility in devising a language access policy and that it measures compliance on a case-by-case basis.
While not new policy, the guidance aims both to clarify the responsibility of welfare and social services providers and other covered entities and to inform the public of their rights to language access. It is the most recent example of OCR’s increased attention on the enforcement of federal civil rights protections in welfare and related programs and is available on the web athttp://www.hhs.gov/ocr/civilrights/resources/specialtopics/lep/. The following highlights some of its key points. (For a related article on OCR efforts to address discrimination in welfare programs, see the October 1999 issue of Welfare News).
Highlights of the OCR Guidance
Who is covered. Any entity that receives federal assistance from HHS (such as TANF and Medicaid funds) directly or indirectly, through grant, contract or subcontract is covered by the guidance (referred to as covered entities). This includes, for example, state, county, and local welfare agencies, public and private contractors and subcontractors.
How Entities Can Assure Meaningful Language Access. OCR will find a program in compliance with Title VI requirements if it includes the following four elements.
First, the covered entity must conduct a thorough assessment of the language needs of the population it will serve. This includes identifying the LEP persons in the service area, the language needs of each LEP client, the situations in which clients will need language assistance, the resources needed and available to provide language services, and how to make these resources available when needed.
Second, the covered entity must develop and implement a comprehensive written policy to assure meaningful communication with LEP individuals. The policy should address the language needs of clients; how to provide oral language interpretation; notices to LEP individuals in their language of the right to free language assistance; staff training, monitoring, and translation of written materials in appropriate situations.
The guidance includes extensive comments on the options for providing translation services, such as bilingual staff, staff and contract interpreters, and community volunteers. It emphasizes that these services must be of sufficient quantity and quality and notes the circumstances under which particular services may be appropriate. It also discusses how covered entities can assure the competency of translators. The guidance warns that the use of family, friends and minor children as interpreters can raise Title VI liability issues. These individuals may not be competent to translate and their acting as translators may threaten the client’s right to confidentiality and discourage the client from making full disclosure of relevant personal information. As to translation of written materials, OCR notes that it is especially important that vital documents relevant to participation in a program, such as applications, and notices of reductions and termination and appeal rights be available in other lang-uages. Because federally-funded programs vary, OCR will work with various HHS agencies to determine those documents that are vital.
Federal regulations generally require that a covered entity provide translated materials where a significant percentage or number of the eligible population needs materials in languages other than English. OCR makes a case-by-case determination of whether a covered entity is in compliance. However, a covered entity will be considered in compliance if it provides translated materials in specific circum-stances, called “safe harbor” provisions. The failure to meet these standards does not automatically mean there is non-compliance with Title VI. Rather OCR will determine compliance based on the totality of the circumstances.
The guidance outlines various strategies that covered entities can use to notify LEP persons of their right to free language assistance, including language identification cards (such as “I speak cards”), posting signs in languages other than English in waiting and reception areas, translation of application and instructional information, provisions for timely and effective telephone communication with staff and LEP persons, and inclusion in informational materials of statements, in other languages, about the right to free language services.
Third, the covered entity must train staff to carry out the language access policy. The guidance notes that without effective training there will be a gap between written policy regarding language access and actual practice.
Fourth, the covered entity must have vigilant monitoring to make sure that LEP individuals can access the programs. As part of its monitoring the covered entity could seek comments from clients and advocates.
The failure to incorporate all of the above elements does not necessarily mean that a program is not in compliance. Instead, OCR will make an individual determination of whether individuals have meaningful access to the program, and will consider the size of the covered entity and the LEP population it serves, the service or program and its goals, available resources, and how often specific languages are encountered circumstances to evaluate whether LEP individuals have meaningful access. The guidance gives examples of how it makes this assessment in specific cases.
Promising Practices. The guidance identifies some of the creative ways that covered entities have used to promote language access. These include simultaneous translation using technology to connect translators in another location with the LEP person and the covered entity’s staff; language banks that serve a number of organizations in a community; language support offices to test, support, and monitor language access programs; telephone information lines; and signs and outreach activities.
Model language access plan. The guidance includes an example of a plan with numerous options and strategies for assuring language access that is especially appropriate for social service agencies. Advocates and grassroots groups may find this model plan helpful in assessing a welfare agency’s policies and advocating for improvements.
Compliance, Enforcement, and Technical Assistance. The guidance summarizes OCR’s role in enforcing Title VI through investigations of complaints, compliance reviews, efforts to secure voluntary compliance, enforcement steps when informal steps to assure compliance are unsuccessful, and technical assistance.
