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Frequently Asked Questions

Select a Topic Below or Choose a PDF Version
 
Commonly Asked Questions and Answers Regarding Limited English Proficient (LEP) Individuals PDF
Commonly Asked Questions and Answers Regarding Executive Order 13166 PDF
Questions and Answers Regarding the August 16, 2010 Title VI Language Access Guidance Letter to State Courts PDF
Regarding the Protection of Limited English Proficient (LEP) Individuals under Title VI of the Civil Rights Act of 1964 and Title VI Regulations PDF
Common Language Access Questions, Technical Assistance, and Guidance for Federally Conducted and Federally Assisted Programs PDF
   

Commonly Asked Questions and Answers Regarding Limited English Proficient (LEP) Individuals

  1. Q. Who is a Limited English Proficient (LEP) individual?
  2. Q. What are the relevant laws concerning language access for LEP individuals?
  3. Q. What is Executive Order 13166?
  4. Q. What is a recipient of federal financial assistance?
  5. Q. What is a federally conducted activity?
  6. Q. Who will enforce the LEP rules?
  7. Q. What are recipients of federal funds and federal agencies required to do to meet LEP requirements?
  8. Q. Do recipients of federal funds have to submit written language access plans to the Department of Justice or to their federal funding agency each year?
  9. Q. When developing plans and guidance regarding translation of documents, how do we determine which documents must be translated?
  10. Q. What do recipients of federal financial assistance do if they are operating in a state or locality that has an English-only or official English law that requires the use of English in communications?
  11. Q. What is the difference between a bilingual staff person and an interpreter or translator?
  12. Q. What impact does Title VI have on court interpretation?
  13. Q. What are the pros and cons of giving non-bilingual police officers cards with pictures and bilingual descriptors to help get a description of a fleeing suspect from witnesses and suspects on the scene?

1. Q. Who is a Limited English Proficient (LEP) individual?

A. Individuals who do not speak English as their primary language and who have a limited ability to read, speak, write, or understand English can be limited English proficient, or "LEP." These individuals may be entitled language assistance with respect to a particular type or service, benefit, or encounter.

2. Q. What are the relevant laws concerning language access for LEP individuals?

A. Federal laws particularly applicable to language access include Title VI of the Civil Rights Act of 1964, and the Title VI regulations, prohibiting discrimination based on national origin, and Executive Order 13166 issued in 2000. Many individual federal programs, states, and localities also have provisions requiring language services for LEP individuals.

3. Q. What is Executive Order 13166?

A. An Executive Order is an order given by the President to federal agencies. The LEP Executive Order (Executive Order 13166) says that people who are LEP should have meaningful access to federally conducted and federally funded programs and activities.
On August 11, 2000, the President signed Executive Order 13166, "Improving Access to Services for Persons with Limited English Proficiency."  The Executive Order requires Federal agencies to examine the services they provide, identify any need for services to those with limited English proficiency (LEP), and develop and implement a system to provide those services so LEP persons can have meaningful access to them.  It is expected that agency plans will provide for such meaningful access consistent with, and without unduly burdening, the fundamental mission of the agency.  The Executive Order also requires that the Federal agencies work to ensure that recipients of Federal financial assistance provide meaningful access to their LEP applicants and beneficiaries.

To assist Federal agencies in carrying out these responsibilities, the U.S. Department of Justice has issued a Policy Guidance Document,  "Enforcement of Title VI of the Civil Rights Act of 1964 - National Origin Discrimination Against Persons With Limited English Proficiency" (LEP Guidance).  This LEP Guidance sets forth the compliance standards that recipients of Federal financial assistance must follow to ensure that their programs and activities normally provided in English are accessible to LEP persons and thus do not discriminate on the basis of national origin in violation of Title VI's prohibition against national origin discrimination.

The Federal Coordination and Compliance Section (FCS) is responsible for government-wide coordination with respect to Executive Order 13166.  FCS serves as the federal repository for the internal implementation plans that each federal agency is required to develop, to ensure meaningful access to its own federally conducted programs and activities, and it also reviews and approves each funding agency’s external LEP guidance for its recipients. As the Department of Justice prepared its own plan, FCS staff reviewed and approved each component’s submission.  Further, FCS staff developed the Department’s external guidance for its own recipients.

FCS has initiated an aggressive program of intra- and inter-agency consultations and actively solicits comments and suggestions from representatives of recipient and LEP individuals on how to identify and address the needs of LEP individuals under Executive Order 13166 in an effective and cost-effective manner.

4. Q. What is a recipient of federal financial assistance?

A. Federal financial assistance includes grants, training, use of equipment, donations of surplus property, and other assistance. Subrecipients are also covered, when federal funds are passed from one recipient to a subrecipient. Recipients of federal funds range from state and local agencies, to nonprofits and other organizations. A list of the types of recipients and the agencies funding them can be found at Executive Order 12250 Coordination of Grant-Related Civil Rights Statutes.

Title VI covers a recipient's entire program or activity. This means all parts of a recipient's operations are covered. This is true even if only one part of the recipient receives the federal assistance.

Example: DOJ provides assistance to a state department of corrections to improve a particular prison facility. All of the operations of the entire state department of corrections--not just the particular prison--are covered.
More information on Title VI, generally, can be found at Title VI of the Civil Rights Act of 1964 42 U.S.C. § 2000d et seq.

5. Q. What is a federally conducted activity?

A. All federal agencies subject to Executive Order 13166 must design and implement a federally conducted plan to ensure access for LEP individuals to all of its federally conducted programs and activities (basically, everything that it does). For instance, the Civil Rights Division of the U.S. Department of Justice has a plan for ensuring meaningful access to its programs and activities for LEP persons. Other agencies and parts of agencies must do the same.

6. Q. Who will enforce the LEP rules?

A. Most federal agencies have an office that is responsible for enforcing Title VI of the Civil Rights Act. To the extent that a recipient's actions are inconsistent with their obligations under Title VI, then such agencies will take the necessary corrective steps.
The Federal Coordination and Compliance Section (FCS) of the Civil Rights Division of DOJ has taken the lead in coordinating and implementing this Executive Order.

7. Q. What are recipients of federal funds and federal agencies required to do to meet LEP requirements?

A. Recipients and federal agencies are required to take reasonable steps to ensure meaningful access to their programs and activities by LEP persons. While designed to be a flexible and fact-dependent standard, the starting point is an individualized assessment that balances the following four factors:

  1. The number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee;
  2. the frequency with which LEP individuals come in contact with the program;
  3. the nature and importance of the program, activity, or service provided by the program to people's lives; and
  4. the resources available to the grantee/recipient or agency, and costs. As indicated above, the intent of this guidance is to find a balance that ensures meaningful access by LEP persons to critical services while not imposing undue burdens on small business, or small nonprofits

8. Q. Do recipients of federal funds have to submit written language access plans to the Department of Justice or to their federal funding agency each year?

A. No. While planning is an important part of ensuring that reasonable steps are taken to provide meaningful access to LEP individuals seeking services, benefits, information, or assertion of rights, there is no blanket requirement that the plans themselves be submitted to federal agencies providing federal financial assistance. In certain circumstances, such as in complaint investigations or compliance reviews, recipients may be required to provide to federal agencies a copy of any plan created by the recipient.

9. Q. When developing plans and guidance regarding translation of documents, how do we determine which documents must be translated?

A. It is important to ensure that written materials routinely provided in English also are provided in regularly encountered languages other than English. It is particularly important to ensure that vital documents are translated into the non-English language of each regularly encountered LEP group eligible to be served or likely to be affected by the program or activity. A document will be considered vital if it contains information that is critical for obtaining federal services and/or benefits, or is required by law. Vital documents include, for example: applications, consent and complaint forms; notices of rights and disciplinary action; notices advising LEP persons of the availability of free language assistance; prison rulebooks; written tests that do not assess English language competency, but rather competency for a particular license, job, or skill for which English competency is not required; and letters or notices that require a response from the beneficiary or client. For instance, if a complaint form is necessary in order to file a claim with an agency, that complaint form would be vital. Non-vital information includes documents that are not critical to access such benefits and services. Advertisements of federal agency tours and copies of testimony presented to Congress that are available for information purposes would be considered non-vital information.

Vital documents must be translated when a significant number or percentage of the population eligible to be served, or likely to be directly affected by the program/activity, needs services or information in a language other than English to communicate effectively. For many larger documents, translation of vital information contained within the document will suffice and the documents need not be translated in their entirety.

It may sometimes be difficult to draw a distinction between vital and non-vital documents, particularly when considering outreach or other documents designed to raise awareness of rights or services. Though meaningful access to a program requires an awareness of the program's existence, we recognize that it would be impossible, from a practical and cost-based perspective, to translate every piece of outreach material into every language. Title VI does not require this of recipients of federal financial assistance, and EO 13166 does not require it of federal agencies. Nevertheless, because in some circumstances lack of awareness of the existence of a particular program may effectively deny LEP individuals meaningful access, it is important for federal agencies to continually survey/assess the needs of eligible service populations in order to determine whether certain critical outreach materials should be translated into other languages.

10. Q. What do recipients of federal financial assistance do if they are operating in a state or locality that has an English-only or official English law that requires the use of English in communications?

A. All recipients of federal funds and all federal agencies are required by law to take reasonable steps to provide meaningful access to limited English proficient persons. This means that, even if recipients operate in jurisdictions in which English has been declared the official language under state or local law, these recipients continue to be subject to federal nondiscrimination requirements, including those applicable to the provision of federally assisted services to persons with limited English proficiency.

All recipients should be aware that despite the state's or local jurisdiction’s official English law, Title VI and the Title VI regulations apply. Thus, recipients must provide meaningful access for LEP persons. State and local laws may provide additional obligations to serve LEP individuals, but cannot compel recipients of federal financial assistance to violate Title VI.

For instance, given our constitutional structure, state or local "English-only" or official English laws do not relieve an entity that receives federal funding from its responsibilities under federal nondiscrimination laws. Entities in states and localities with "English-only" or official English laws are certainly not required to accept federal funding – but if they do, they have to comply with Title VI, including its prohibition against national origin discrimination by recipients of federal assistance. Failing to make federally assisted programs and activities accessible to individuals who are LEP may violate Title VI and the Title VI regulations.
Sources: 67 Fed Reg 41455 at 41459 and 41468 (June 18, 2002); Commonly Asked Questions and Answers About Executive Order 13166, Answer 8.

11. Q. What is the difference between a bilingual staff person and an interpreter or translator?

A. People who are completely bilingual are fluent in two languages. They are able to conduct the business of the workplace in either of those languages. Bilingual staff can assist in meeting the Title VI and Executive Order 13166 requirement for federally conducted and federally assisted programs and activities to ensure meaningful access to LEP persons.

One of the primary ways that bilingual staff can be used as part of a broader effort to ensure meaningful access is to have them conduct business with the agencies’ LEP clients directly in the clients’ primary language. For instance, 911 call centers and a variety of hotlines frequently employ bilingual operators who can communicate directly with LEP callers in a particular language.
Social service workers, police, corrections, and probation officers, and others frequently are also called upon to communicate directly with the public in languages other than English. This is sometimes called “monolingual communication in a language other than English.” It does not involve interpretation or the translation between languages. However, it does require fluency in the non-English language, including fluency in agency terminology. Such fluency should be assessed prior to relying on the bilingual employee for the provision of services.

Many individuals have some proficiency in more than one language, but are not completely bilingual. They may be able to greet a limited English proficient individual in his or her language, but not conduct agency business, for instance, in that language. The distinction is critical in order to ensure meaningful communication and appropriate allocation of resources. As valuable as bilingualism and ability to conduct monolingual communication in a language other than English can be, interpretation and translation require additional specific skills in addition to being fully fluent in two or more languages.

Interpretation
Interpretation involves the immediate communication of meaning from one language (the source language) into another (the target language). An interpreter conveys meaning orally, while a translator conveys meaning from written text to written text. As a result, interpretation requires skills different from those needed for translation.

Interpreting is a complex task that combines several abilities beyond language competence in order to enable delivery of an effective professional interpretation in a given setting. Consequently, extreme care must be exercised in hiring interpreters and interpreting duties should be assigned to individuals within their performance level. Command of at least two languages is prerequisite to any interpreting task. The interpreter must be able to (1) comprehend two languages as spoken and written (if the language has a script), (2) speak both of these languages, and (3) choose an expression in the target language that fully conveys and best matches the meaning of the source language.

From the standpoint of the user, a successful interpretation is one that faithfully and accurately conveys the meaning of the source language orally, reflecting the style, register, and cultural context of the source message, without omissions, additions or embellishments on the part of the interpreter.

Professional interpreters and translators are subject to specific codes of conduct and should be well-trained in the skills, ethics, and subject-matter language. Those utilizing the services of interpreters and translators should request information about certification, assessments taken, qualifications, experience, and training. Quality of interpretation should be a focus of concern for all recipients.
Many court systems have adopted assessments, certification or other qualification procedures to ensure quality, so when hiring an interpreter, whether for courtroom or other assignments, such competency measures should be taken into consideration. Interpreters can be physically present, or, if appropriate, may appear via videoconferencing or telephonically. When videoconferencing or telephonic interpretation are used, options include connecting directly to a specific professional interpreter with known qualifications, or opting to use a company providing telephonic interpretation services, preferably one with quality control safeguards in place.
In many circumstances, using a professional interpreter or translator will be both necessary and preferred. However, if bilingual staff are asked to interpret or translate, they should be qualified to do so. Assessment of ability, training on interpreter ethics and standards, and clear policies that delineate appropriate use of bilingual staff, staff or contract interpreters and translators, will help ensure quality and effective use of resources.

Several resources are available on this topic, just a few of which include: DOJ Guidance (PDF) 67 FR 41455, 41461 - 41464 (June 18, 2002). DOJ Tips and Tools document:Chapter 1B. Interpretation and Translation page on www.lep.gov.

12. Q. What impact does Title VI have on court interpretation?

A. Many state and local court systems receive direct or indirect financial assistance from the Department of Justice or another federal agency. Recipients of such federal financial assistance must comply with Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000, et seq, and its implementing regulations, which prohibit discrimination on the basis of race, color, and national origin in programs that receive federal financial assistance.

Under Executive Order 13166, reprinted at 65 FR 50121 (August 16, 2000), each federal agency that extends federal financial assistance is required to issue guidance explaining the obligations of their recipients to ensure meaningful access by LEP persons to their federally assisted programs and activities.

On June 18, 2002, the Department of Justice issued final guidance to its recipients regarding the requirement to take reasonable steps to provide meaningful access to LEP individuals. (67 FR 41455). The DOJ Guidance outlines four factors that should be considered to determine when language assistance might be required to ensure such meaningful access, and it identifies cost effective measures to address those language needs. Those factors are: 1. The number or proportion of LEP persons in the eligible service population; 2. The frequency with which LEP individuals come into contact with the program; 3. The importance of the program or activity to the LEP person (including the consequences of lack of language services or inadequate interpretation/translation); and 4. The resources available to the recipient and the costs.

DOJ’s Guidance focuses on a huge range of types of recipients. The consequences of lack of access to some of these programs is much greater than others. The Guidance was written for, and intended to apply flexibly to, everything from bicycle safety courses to criminal trials, and even to serve as a model for the enormous variety of recipients of funds from other federal agencies. In this context, nearly every encounter an LEP person has with a court is of great importance or consequence to the LEP person. Thus, the guidance emphasizes the need for courts to provide language services free of cost to LEP persons. Court interactions are amongst the most important interactions an LEP person may have.

While we recognize that resources are a concern across every court system, and that increasing access can be a process that takes some time, we note that the LEP Guidance was issued in 2002. Moreover, the Supreme Court articulated the need to provide meaningful access to LEP persons twenty-eight years earlier in Lau v. Nichols. With the passing of time, the need to show progress in providing all LEP persons with meaningful access is amplified. The DOJ Guidance states: ... [W]hen oral language services are necessary, recipients [of any federal funds] should generally offer competent interpreter services free of cost to the LEP person.

For DOJ recipient programs and activities, this is particularly true in a courtroom, administrative hearing, pre- and post-trial proceedings, situations in which health, safety, or access to important benefits and services are at stake, or when credibility and accuracy are important to protect an individual's rights and access to important services (67 FR 41455, 41462). Charging LEP persons for interpreter costs or failing to provide interpreters can implicate national origin discrimination concerns.

DOJ’s Guidance goes on to note: ...At a minimum, every effort should be taken to ensure competent interpretation for LEP individuals during all hearings, trials, and motions during which the LEP individual must and/or may be present. (67 FR 41455, 41471) Examples of Title VI compliance can be found in states in which courts are providing interpretation free of cost to all LEP persons encountering the system (including parents of non-LEP minors), whether it be in a criminal or civil setting, and in important interactions with court personnel, as well as providing translations of vital documents and signage.

Many states are moving in this direction. The Federal Coordination and Compliance Section (FCS) of the Civil Rights Division works with court systems and consortia to provide outreach on compliance and best practices to all state courts, and to provide technical assistance. FCS also conducts investigations into allegations of national origin discrimination in courts.

13. Q. What are the pros and cons of giving non-bilingual police officers cards with pictures and bilingual descriptors to help get a description of a fleeing suspect from witnesses and suspects on the scene?

A. The Civil Rights Division of the Justice Department is encouraged by efforts to ensure that effective, timely, and quality communication can take place between law enforcement and LEP individuals. There are several ways that law enforcement agencies across the country are working to ensure such communication. One example is the use of pictures and symbols to elicit descriptions of suspects. This is not a required action under Title VI or the regulations, but pictures and symbols may be helpful no matter what language the witness or victim speaks.

While not a substitute for a live interpreter, using universal signs/symbols can help enormously in temporarily bridging communication gaps in a cost-effective fashion while awaiting the arrival of an interpreter or competent bilingual staffer. However, over-reliance on pictures in complex, sensitive, or critical information exchanges can lead to a breakdown in communication. Thus, cards that depict objects such as glasses, caps, and types of cars, for example, can help elicit descriptions immediately while awaiting bilingual officers or interpreters.

Typically, these cards also contain some descriptive words and instructions in English and the target language(s). They can be useful tools, so long as they are high quality translations, offer a breadth of options, and are used appropriately and in a limited fashion. Critically, the investigation should include use of bilingual staff or interpreters to elicit full information from witnesses and victims as soon as possible. Of course, officers using such cards should ensure that they are not leading or limiting the witness or victim to make choices that are not actually what they would communicate if language were not a barrier. All translations should be thoroughly reviewed to ensure that they properly and fully convey the intended meaning in English. Errors in translation could hinder investigations, put prosecutions at risk, and create confusion and misidentification.

Additional Resources: U.S. Department of Justice, Civil Rights Division, Executive Order 13166 Limited English Proficiency Resource Document: Tips and Tools from the Field, pp. 10-11, (September 21, 2004). http://www.lep.gov/resources/tips_and_tools-9-21-04.htm


Commonly Asked Questions and Answers Regarding Executive Order 13166: Providing Meaningful Access to Individuals Who are Limited English Proficient to Federally Assisted and Federally Conducted Programs and Activities

  1. Who is a Limited English Proficient (LEP) individual?
  2. What federal activities are covered by the Executive Order?
  3. What is an agency's "recipient guidance?"
  4. What is the general DOJ Guidance on Limited English Proficiency that was issued along with EO 13166? How can agencies use it? How is it different from the guidance that DOJ and other agencies are working on now?
  5. If an agency does not provide federal financial assistance, does the Executive Order apply to that agency?
  6. What is the time frame for action?
  7. What standards should agencies apply to recipient guidance and to their plans for federally conducted activities?
  8. If a recipient is covered by a state or local "English-only" law, must it still comply with the Title VI obligation and agency guidance interpreting that obligation?
  9. When developing plans and guidance regarding translations of documents, how do we determine which documents must be translated?
  10. Does the Executive Order apply to materials on websites?
  11. What are the standards for oral interpretation?
  12. Does the Executive Order apply to federally conducted activities overseas or to foreign recipients of federal financial assistance?
  13. Does Executive Order 13166 require that bids be let in languages other than English?
  14. If a federal agency contracts with a private or other entity to conduct certain activities of the agency, does the Executive Order apply to the activities of the contractor?
  15. What does Executive Order 13166 require for federal employment practices?
  16. Where can I get a copy of the Executive Order and the DOJ General LEP Guidance?

1. What is new in Executive Order 13166?

Executive Order 13166 (EO 13166) contains two major initiatives. The first is designed to better enforce and implement an existing obligation: Title VI of the Civil Rights Act of 1964 prohibits recipients of federal financial assistance from discriminating based on national origin by, among other things, failing to provide meaningful access to individuals who are limited English proficient (LEP). The Executive Order requires federal agencies that provide federal financial assistance to develop guidance to clarify those obligations for recipients of such assistance ("recipient guidance"). Thus, for instance, the Department of Justice (DOJ) is developing guidance specifically for its recipients, which are primarily state and local law enforcement agencies and departments of corrections.

Second, the Executive Order sets forth a new obligation: Because the federal government adheres to the principles of nondiscrimination and inclusion embodied in Title VI, the Executive Order requires all federal agencies to meet the same standards as federal financial assistance recipients in providing meaningful access for LEP individuals to federally conducted programs. Each federal agency must thus develop a plan for providing that access. For example, DOJ components such as the Immigration and Naturalization Service, the Federal Bureau of Investigation, the Bureau of Prisons, the Civil Rights Division, and others, are in the process of developing a combined plan. Each federal agency must undertake the same process.

The Federal Coordination and Compliance Section (FCS) of the Civil Rights Division of DOJ has taken the lead in coordinating and implementing this Executive Order. In late August, Assistant Attorney General Bill Lann Lee sent a letter to heads of agencies, general counsels, and (where available) civil rights offices in every federal agency. The letter informed each agency of its obligations under the Executive Order and of FCS’s role in providing technical assistance and review to agencies.

In an effort to secure the federal government's full compliance with EO 13166, and under the DOJ’s coordination authority conferred by Executive Order 12250, Attorney General Eric Holder issued a memorandum on February 17, 2011 requesting that each agency recommit to the implementation of EO 13166. See Attorney General Eric Holder's Memorandum to All Federal Agencies Regarding the Federal Government's Renewed Commitment to Language Access Obligations Under Executive Order 13166 (February 17, 2011), http://www.lep.gov/13166/AG_021711_EO_13166_Memo_to_Agencies_with_Supplement.pdf.

2. What federal activities are covered by the Executive Order?

The Executive Order covers all "federally conducted programs and activities." Anything a federal agency does falls within the scope of federally conducted programs or activities. All of the over ninety agencies are responsible for developing and implementing "federally conducted plans" to ensure that persons who are LEP have meaningful access to federal programs and activities.
The definition of federally conducted programs is the same under Executive Order 13166 as the definition used under the regulations for application of Section 504 of the Rehabilitation Act of 1973 to federally conducted programs. 28 C.F.R. Pt. 39, Editorial Note, Section 39.102 Application. That definition states:

Under this section, a federally conducted program or activity is, in simple terms, anything a Federal agency does. Aside from employment, there are two major categories of federally conducted programs or activities covered by the regulation: those involving general public contact as part of ongoing agency operations and those directly administered by the department for program beneficiaries and participants. Activities in the first part include communication with the public (telephone contacts, office walk-ins, or interviews) and the public’s use of the Department’s facilities (cafeteria, library). Activities in the second category include programs that provide Federal services or benefits (immigration activities, operation of the Federal prison system). Id.

Federally conducted activities include the provision of federal benefits or services, the imposition of a burden on a member of the public, and any other activities a federal agency conducts. For example, the investigation of a complaint of discrimination by an office of civil rights or the provision of information by a law enforcement agency that would inform a person of or allow a person to exercise their rights would be a "service." The grant of authority to engage in temporary employment by the Immigration and Naturalization Service or of social security benefits would be a "benefit." The imposition of taxes by the Internal Revenue Service or discipline upon a prisoner in a Bureau of Prisons correctional facility would be a "burden." Another example of federal activities covered by the Executive Order are law enforcement activities such as custodial interrogations, arrests and detentions, searches, investigations, etc., performed by federal law enforcement agencies.

3. What is an agency's "recipient guidance?"

Throughout the questions and answers, when we refer to "recipient guidance" we mean the guidance that agencies must develop to ensure that entities to which they grant federal financial assistance comply with Title VI’s prohibition against national origin discrimination. Approximately 28 federal agencies provide some form of federal financial assistance to private, state, or local entities. Federal financial assistance includes, but is not limited to, grants and loans of federal funds; grants or donations of federal property; training; details of federal personnel; or any agreement, arrangement, or other contract which has as one of its purposes the provision of assistance. For instance, the Department of Justice provides federal financial assistance to several agencies, primarily state and local law enforcement agencies, and departments of corrections.

4. What is the general DOJ Guidance on Limited English Proficiency that was issued along with EO 13166? How can agencies use it? How is it different from the guidance that DOJ and other agencies are working on now?

DOJ has consistently interpreted Title VI and its regulations to require recipients of federal financial assistance to provide meaningful access to LEP individuals, and funding agencies have found recipients in violation of this obligation and prescribed remedial efforts on myriad occasions. The general DOJ LEP Guidance sets forth the standards DOJ has been applying, and it provides a framework for agencies to use in developing specific guidance for their own recipients. EO 13166 requires each agency to prepare guidance that is tailored to the agency’s recipients. For example, DOJ is preparing guidance as to how the general LEP standards apply in law enforcement agencies and departments of corrections. EO 13166 also requires agencies to apply the standards set forth in the DOJ LEP Guidance to their own federally conducted activities. The general DOJ LEP Guidance can be found on the FCS website at www.LEP.gov.

5. If an agency does not provide federal financial assistance, does the Executive Order apply to that agency?

Yes. EO 13166 requires that ALL federal agencies take reasonable steps to provide meaningful access to their own federally conducted activities. Each agency must have developed and begun implementing a plan for doing so by December 11, 2000. That plan must be submitted to the Department of Justice, through the Federal Coordination and Compliance Section, by sending it to:
Deeana Jang, Chief
Federal Coordination and Compliance Section
Civil Rights Division
United States Department of Justice
950 Pennsylvania Avenue NW - NWB
Washington, D.C. 20530
FCS staff is available to discuss these plans with agencies.

6. What is the time frame for action?

By December 11, 2000, each agency was to develop and begin implementation of a plan for providing meaningful access for LEP individuals to the agency’s federally-conducted activities.
Also by December 11, 2000, each agency that provides federal financial assistance must have submitted a draft of its guidance for recipients of that assistance to the Department of Justice, Civil Rights Division, Federal Coordination and Compliance Section (FCS), at the address noted above. FCS reviews each guidance for consistency with other agencies’ guidance and with the Executive Order. Once FCS approves the guidance, it must be published in the Federal Register for review and comment.

7. What standards should agencies apply to recipient guidance and to their plans for federally conducted activities?

Each agency and each recipient of federal financial assistance must take reasonable steps to provide meaningful access to LEP individuals. Among the factors to be considered in determining what constitutes reasonable steps to ensure meaningful access are: (1) the number or proportion of LEP persons in the eligible service population; (2) the frequency with which LEP individuals come into contact with the program; (3) the importance of the service provided by the program; and (4) the resources available to the recipient. These four factors are further explained in the DOJ LEP Guidance found on the FCS website and published in the Federal Register on August 16, 2000.

8. If a recipient is covered by a state or local "English-only" law, must it still comply with the Title VI obligation and agency guidance interpreting that obligation?

Yes. State and local laws may provide additional obligations to serve LEP individuals, but cannot compel recipients of federal financial assistance to violate Title VI. For instance, given our constitutional structure, State or local "English-only" laws do not relieve an entity that receives federal funding from its responsibilities under federal anti-discrimination laws. Entities in States and localities with "English-only" laws are certainly not required to accept federal funding – but if they do, they have to comply with Title VI, including its prohibition against national origin discrimination by recipients of federal assistance. Failing to make federally assisted programs and activities accessible to individuals who are LEP will, in certain circumstances, violate Title VI.

9. When developing plans and guidance regarding translations of documents, how do we determine which documents must be translated?

It is important to ensure that written materials routinely provided in English also are provided in regularly encountered languages other than English. It is particularly important to ensure that vital documents are translated into the non-English language of each regularly encountered LEP group eligible to be served or likely to be affected by the program or activity. A document will be considered vital if it contains information that is critical for obtaining the federal services and/or benefits, or is required by law. Vital documents include, for example: applications; consent and complaint forms; notices of rights and disciplinary action; notices advising LEP persons of the availability of free language assistance; prison rule books; and written tests that do not assess English language competency, but rather competency for a particular license, job, or skill for which English competency is not required; and letters or notices that require a response from the beneficiary or client. For instance, if a complaint form is necessary in order to file a claim with an agency, that complaint form would be vital. Non-vital information includes documents that are not critical to access such benefits and services. Advertisements of federal agency tours and copies of testimony presented to Congress that are available for informational purposes would be considered non-vital information.

Vital documents must be translated when a significant number or percentage of the population eligible to be served, or likely to be directly affected by the program/activity, needs services or information in a language other than English to communicate effectively. For many larger documents, translation of vital information contained within the document will suffice and the documents need not be translated in their entirety.

It may sometimes be difficult to draw a distinction between vital and non-vital documents, particularly when considering outreach or other documents designed to raise awareness of rights or services. Though meaningful access to a program requires an awareness of the program's existence, we recognize that it would be impossible, from a practical and cost-based perspective, to translate every piece of outreach material into every language. Title VI does not require this of recipients of federal financial assistance, and EO 13166 does not require it of federal agencies. Nevertheless, because in some circumstances lack of awareness of the existence of a particular program may effectively deny LEP individuals meaningful access, it is important for federal agencies to continually survey/assess the needs of eligible service populations in order to determine whether certain critical outreach materials should be translated into other languages.

10. Does the Executive Order apply to materials on websites?

Yes. However, the decision to place something on the web will not affect whether the document must be translated. For example, placement on the website should not change the agencies’ or recipients’ original assessment regarding the number or proportion of LEP persons that comprise the intended audience for that document.

The four-factor analysis applies to each individual "document" on the website. Generally, entire websites need not be translated, as only the vital information within the website might need translation. If, in applying the four-factor analysis, the agency or recipient determines that a particular document/piece of information should be translated, that translation should also be posted on the website if the English-language version is on the website. If documents are translated within a website, the existence of the translation should be noted (in the appropriate language) at an initial entry point to the site (usually the homepage).

11. What are the standards for oral interpretation?

The obligation to provide meaningful opportunity to individuals who are LEP is not limited to written translations. Oral communication between recipients and beneficiaries often is a necessary part of the exchange of information. Thus, a recipient that limits its language assistance to the provision of written materials may not be allowing LEP persons "effectively to be informed of or to participate in the program."

There are a number of steps which can assist recipients and federal agencies in providing such oral assistance. They range from hiring bilingual staff or staff interpreters competent in the skill of interpreting, to contracting with qualified outside in-person or telephonic interpreter services, to arranging formally for the services of qualified voluntary community interpreters who are bound by confidentiality agreements. Generally, it is not acceptable for agencies or recipients to rely upon an LEP individual's family members or friends to provide the interpreter services. The agency or recipient should meet its obligations under EO 13166 or Title VI by supplying competent language services free of cost. In rare emergency situations, the agency or recipient may have to rely on an LEP person's family members or other persons whose language skills and competency in interpreting have not been established. Proper agency or recipient planning and implementation is important in order to ensure that those situations rarely occur.

12. Does the Executive Order apply to federally conducted activities overseas or to foreign recipients of federal financial assistance?

No. The Department of Justice has determined that EO 13166 applies only within the United States and its territories and does not apply extraterritorially.

However, agencies that conduct activities overseas must still submit a plan for making their domestic activities accessible to people who are limited English proficient. That plan should indicate that the agency conducts federal activities abroad, but that DOJ has determined that the EO does not apply to those activities.

Similarly, agencies that provide federal financial assistance abroad and domestically must still create guidance for their domestic recipients, and may include a statement in the guidance indicating that the guidance does not apply extraterritorially.

13. Does Executive Order 13166 require that bids be let in languages other than English?

Generally, current practice with regard to announcing federal government contracts and grants would not be altered under the Executive Order. In determining what is required, the focus of the analysis in this situation is on the first factor – the number or proportion of eligible LEP persons. Except, perhaps, in territories, it is reasonable to expect that the number or proportion of eligible contract or grant recipients who are LEP and are themselves attempting to find and respond to announcements of grants and contracts is negligible.

14. If a federal agency contracts with a private or other entity to conduct certain activities of the agency, does the Executive Order apply to the activities of the contractor?

Yes. When a different entity conducts certain activities for the federal agency, then the Executive Order applies to the entity's activities. The agency should ensure that the entity knows the general standards for LEP access and applies the agency's plan to the activities it is conducting on behalf of the agency. An agency cannot avoid its obligations by contracting them out. Mandatory compliance with the agency’s LEP policy should be included in the contract.

15. What does Executive Order 13166 require for federal employment practices?

If English is essential in a job, the Executive Order would not require any services for LEP individuals. For jobs where agencies determine English is not essential, agencies should apply the four factors.

16. Where can I get a copy of the Executive Order and the DOJ General LEP Guidance?

A copy of the Executive Order and DOJ's general LEP Guidance (both translated into Spanish and Chinese) can be found on the Federal Coordination and Compliance Section website at http://www.justice.gov/crt/about/cor. For more information on Executive Order 13166, please contact the Federal Coordination and Compliance Section, 202-307-2222.


Questions and Answers Regarding the August 16, 2010 Title VI Language Access Guidance Letter to State Courts

  1. Question 1: Does the definition of "court" include administrative hearing proceedings? Do the same requirements apply to the executive branch agencies responsible for conducting those hearings?
  2. Question 2: What are DOJ's expectations with regard to using remote interpreters, both telephonic and by video? Is it acceptable to use a close-circuit network and videoconferencing to provide interpreter services when local certified or competent interpreters are not available?
  3. Question 3: The "second check" of a non-certified interpreter's skills discussed in Section IX C. 1 of the Guidance can be time consuming and difficult to accomplish (finding a second person who is bilingual and willing to come to court at all hours for this purpose). This process also presumes that the second person has a competence in both languages. Is this process an example of how this situation could be addressed or is it required?
  4. Question 4: Can DOJ provide additional guidance concerning what is meant by "qualified interpreters" for handling interpretation in a court's clerk's office or other court-related activities outside of the courtroom?
  5. Question 5: If there are not qualified interpreters in less frequently used languages to assist in the provision of court-ordered mandatory services (e.g., mandatory parenting seminars, drug treatment programs, mediation, etc.), is it acceptable for the court to waive the mandatory requirements?
  6. Question 6: Footnote 6 in Section III of the Guidance states that only funds directed to the particular program or activity that is out of compliance would be terminated. Are there any other consequences for noncompliance other than losing Federal funds directed to the program that is out of compliance?
  7. Question 7: Can DOJ reconcile the differing requirements for providing court interpreters in federal courts and in the state courts?

On August 16, 2010, Assistant Attorney General Tom Perez issued a language access guidance letter to state courts (Letter). The following series of questions and answers were developed to address several topics raised by state courts but not addressed directly by the letter.

Question 1: Does the definition of "court" include administrative hearing proceedings? Do the same requirements apply to the executive branch agencies responsible for conducting those hearings?

Answer:

The Letter addresses the application of Title VI of the Civil Rights Act of 1964 (Title VI) requirements to state court systems. The standards set forth in the Letter are applicable to all proceedings conducted by state courts including those considered administrative in nature. Although the Letter does not specifically address administrative adjudicative hearings conducted by state or local executive branch agencies that receive federal financial assistance, the reasoning would generally extend to them. Indeed, The Department of Justice (DOJ) Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition against National Origin Discrimination Affecting Limited English Proficient Persons (Guidance) states that “As used in this appendix, the word ‘court’ or ‘courts’ includes administrative adjudicatory systems or administrative hearings administered or conducted by a recipient." 67 Fed. Reg. 41,455 at 41,459 n.5 (June 18, 2002) (LEP Guidance).

Question 2: What are DOJ’s expectations with regard to using remote interpreters, both telephonic and by video? Is it acceptable to use a close-circuit network and videoconferencing to provide interpreter services when local certified or competent interpreters are not available?

Answer:

Remote interpreting is an appropriate and reasonable alternative in a variety of circumstances. Whether remote interpreting is a reasonable method to provide court language assistance depends on those circumstances, including, for example, whether other participants to the proceeding or program are appearing remotely, the availability of qualified in-person interpreters, the quality of the remote technology, the nature and duration of the proceeding or communication, the relative quality, and cost and delay associated with the in-person and remote interpreters.

Question 3: The "second check" of a non-certified interpreter's skills discussed in Section IX C. 1 of the Guidance can be time consuming and difficult to accomplish (finding a second person who is bilingual and willing to come to court at all hours for this purpose). This process also presumes that the second person has a competence in both languages. Is this process an example of how this situation could be addressed or is it required?

Answer:

The Department of Justice (DOJ) Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition against National Origin Discrimination Affecting Limited English Proficient (LEP) Persons states that “this ‘second check’ solution may be one appropriate way of ensuring meaningful access to the LEP individual.” 67 Fed. Reg. at 41,471. It is not, therefore, a requirement. What is required is that courts have an appropriate system in place to determine the qualifications of an interpreter who is not certified because the needed exams have not been devised in the relevant language. A variety of fora exist for sharing promising practices in this area, including the Consortium for Language Access in the Courts developed by your organization, the National Center for State Courts, the American Bar Association Standing Committee on Legal Aid and Indigent Defendants, and the National Association of Judiciary Interpreters and Translators.

Question 4: Can DOJ provide additional guidance concerning what is meant by "qualified interpreters" for handling interpretation in a court's clerk's office or other court-related activities outside of the courtroom?

Answer:

Determining the appropriate qualifications needed for providing language support outside of the courtroom depends on the nature, purpose, and context of the communication. In some settings, a demonstrably bilingual court employee may provide service directly “in-language” to the LEP party or customer in a second language, without having any training or skills in interpreting. When an interpreter is called for, the needed skills and qualifications will vary according to the particular context. For example, the interpreter may not need to provide simultaneous interpretation in some office settings. And in other settings, such as a file room, the interaction may not require lengthy or complex conversations such that a telephone-based interpreter may suffice. On the other hand, interviews conducted by a monolingual court psychologist should be supported with highly skilled professional interpreters.

Question 5: If there are not qualified interpreters in less frequently used languages to assist in the provision of court-ordered mandatory services (e.g., mandatory parenting seminars, drug treatment programs, mediation, etc.), is it acceptable for the court to waive the mandatory requirements?

Answer:

Courts should diligently seek to provide language access to all LEP persons in such settings utilizing both qualified bilingual staff as well as interpreter assistance, not only as a civil rights matter, but also in the interests of the judicial system and in order to accomplish the goals of the mandatory services. Depending on the circumstances, waiving participation in mandatory court programs for LEP parties may be an acceptable interim measure under Title VI when qualified interpreters are not reasonably available, appropriate alternatives are not reasonable, and affected individuals are not harmed by the waiver.

Question 6: Footnote 6 in Section III of the Guidance states that only funds directed to the particular program or activity that is out of compliance would be terminated. Are there any other consequences for noncompliance other than losing Federal funds directed to the program that is out of compliance?

Answer:

If a court is engaging in national origin discrimination prohibited by Title VI, DOJ or another federal funding entity might first issue formal findings of such civil rights violations. If voluntary compliance cannot then be secured, DOJ could take further action, such as seeking equitable relief in court. The findings might also result in suspension of funding, or affect a recipient’s eligibility to receive new grants, or it could result in a conditional award. Finally, when the subject program is a sub-recipient of federal financial assistance, the finding of non-compliance may suggest a separate Title VI violation by the recipient for failure to ensure the sub-recipient’s proper use of the assistance.

Question 7: Can DOJ reconcile the differing requirements for providing court interpreters in federal courts and in the state courts?

Answer:

While Constitutional due process principles can be used in support of interpreter requirements in both federal and state courts, Title VI and implementing regulations do not apply to the federal courts because they are not recipients of federal financial assistance, being instead a branch of the federal government. Further, Executive Order 13166 also is not applicable since it applies only to the executive branch. The authority to supervise the federal courts with respect to language access resides instead with the Supreme Court and Congress.


Commonly Asked Questions and Answers Regarding the Protection of Limited English Proficient (LEP) Individuals under Title VI of the Civil Rights Act of 1964 and Title VI Regulations

  1. Why are LEP individuals protected from national origin discrimination under Title VI?
  2. Does the failure by a recipient to provide meaningful access to LEP persons constitute national origin discrimination?
  3. Do Department of Justice (DOJ) Title VI implementing regulations prohibit both intentional discrimination and practices that have a discriminatory impact?
  4. Do other federal agencies have Title VI regulations that prohibit both intentional discrimination and practices that have a discriminatory impact?

1. Why are LEP individuals protected from national origin discrimination under Title VI?

The Supreme Court decided over three decades ago that a federal fund recipient’s denial of an education to a group of non-English speakers violated Title VI and its implementing regulations. Lau v. Nichols, 414 U.S. 563, 569 (1974). As the Court explained, “[i]t seems obvious that the Chinese-speaking minority receive fewer benefits than the English-speaking majority from respondents’ school system which denies them a meaningful opportunity to participate in the educational program—all earmarks of the discrimination banned by” Title VI regulations. Id. at 568; see also id. at 570-71 (Stewart, J., concurring in result).

2. Does the failure by a recipient to provide meaningful access to LEP persons constitute national origin discrimination?

Since the Supreme Court’s decision in Lau, other courts have found that the failure by a recipient to provide meaningful access to LEP persons constitutes national origin discrimination. See, e.g., Sandoval v. Hagan, 197 F.3d 484, 510-11 (11th Cir. 1999) (holding that English-only policy for driver’s license applications constituted national origin discrimination under Title VI), rev’d on other grounds, 532 U.S. 275 (2001); Almendares v. Palmer, 284 F. Supp. 2d 799, 808 (N.D. Ohio 2003) (holding that allegations of failure to ensure bilingual services in a food stamp program could constitute a violation of Title VI).

3. Do Department of Justice (DOJ) Title VI implementing regulations prohibit both intentional discrimination and practices that have a discriminatory impact?

Yes. DOJ’s Title VI implementing regulations prohibit not only intentional discrimination but also facially-neutral practices that have a discriminatory impact, see 28 C.F.R. 42.104(b)(2). The “failure to ensure that LEP persons can effectively participate in or benefit from Federally assisted programs and activities” may constitute national origin discrimination. U.S. Dept. of Justice, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455, 41,457 (June 18, 2002).

4. Do other federal agencies have Title VI regulations that prohibit both intentional discrimination and practices that have a discriminatory impact?

Yes.  Federal agencies have implemented Title VI regulations that follow the DOJ regulations and have consistently construed Title VI’s prohibition on both intentional and disparate-impact discrimination to require that recipients of federal financial assistance provide meaningful access for LEP persons. See, e.g., 28 C.F.R. 42.405(d)(1); Department of Health and Human Services (HHS) Notice, 35 Fed. Reg. 11,595 (1970); 45 Fed. Reg. 82,972 (1980); Executive Order 13,166, 65 Fed. Reg. 50,121 (Aug. 11, 2000).


    Common Language Access Questions, Technical Assistance, and Guidance for Federally Conducted and Federally Assisted Programs

    1. Why must my agency designate a primary contact person for services to limited English proficient (LEP) persons in my agency?
    2. Would it be helpful to have agreements with other federal agencies, or sub-agencies to provide language assistance services?
    3. What are my agency's responsibilities with respect to providing Federal Financial Assistance?
    4. Why is it important to have a Language Access Implementation Plan, Policy Directives, and Procedures in place?
    5. Why is it important to modify or update your Language Access Implementation Plan and related Language Access Procedures?
    6. What are resources that might be helpful in creating, modifying, or updating an agency's Language Access Implementation Plan, Policy Directives or Procedures?
    7. Why is it important to monitor the effectiveness of your Language Access Implementation Plan?
    8. Why is it important to publish your Language Access Policy Directives or inform members of the public about the availability of language assistance services?
    9. Why is it important for agencies to consult with or seek input from non-governmental organizations such as faith-based groups, civic groups, civil rights organizations, etc.?
    10. Why is it necessary to develop standard ways to identify non-English speakers or LEP populations for whom you would provide language assistance?
    11. The importance of tracking the number of LEP individuals that your agency has served or who have participated in your program or activity
    12. Understanding the types of language assistance services available
    13. Hiring bilingual staff
    14. How do you assess your current staff's ability to provide language assistance services?
    15. Understanding how to prioritize the languages that you should consistently accommodate using existing internal structures versus languages where you may need to seek external language assistance services to communicate with LEP individuals
    16. Using contracted interpreters or translators when your agency cannot meet the demand for language assistance services
    17. Critical staff training on language access issues
    18. Monitoring language assistance services provided in your agency
    19. Establishing a grievance process for LEP individuals to file a complaint if they are denied services because of their lack of English proficiency
    20. Resource-sharing when translating documents
    21. Identifying and prioritizing documents for translation
    22. Translating disaster-preparedness or emergency information
    23. Understanding when/how to make your website more accessible to LEP persons
    24. Cross-agency federal resources regarding language assistance

    A. Why must my agency designate a primary contact person for services to limited English proficient (LEP) persons in my agency?

    • In his Memorandum for Heads of Federal Agencies regarding the Federal Government's Renewed Commitment to Language Access Obligations Under Executive Order 13166, the Attorney General directed federal agencies to appoint a language access coordinator. This individual is responsible for ensuring that the agency adheres to its language access plan, policy directives, and procedures to provide meaningful access to LEP persons. The language access coordinator should report to a high-ranking official within the agency. The coordinator is responsible for language assistance services and may delegate duties but should retain ultimate responsibility for oversight, performance, and implementation of the language access plan. Federal agencies with multiple offices and divisions may find that each component or field office should designate an individual as a local language access coordinator. The language access plan should set forth the name and contact information of the responsible official(s). The language access coordinator should consider creating a working group of key stakeholders to assist in implementing and creating language access procedures for the agency. See Language Access Assessment and Planning Tool for Federally Conducted and Federally Assisted Programs

    B. What are my agency's responsibilities with respect to providing Federal Financial Assistance?

    • In his Memorandum for Heads of Federal Agencies regarding the Federal Government's Renewed Commitment to Language Access Obligations Under Executive Order 13166, the Attorney General directed federal agencies that provide Federal financial assistance to draft recipient guidance.
    • Federal financial assistance includes, but is not limited to, grants and loans of federal funds; grants or donations of federal property; training; details of federal personnel; or any agreement, arrangement, or other contract which has as one of its purposes the provision of assistance. For instance, the Department of Justice provides federal financial assistance to several agencies, primarily state and local law enforcement agencies, and departments of corrections.
    • Federal agencies providing federal financial assistance should obtain information and maintain records that ensure that they can determine which entities have received such assistance, including a list of subgrantees, and for what purpose the assistance has been provided.
    • Federal agencies that provide Federal financial assistance must ensure that recipients of Federal financial assistance acknowledge and agree that they will comply (and require any subgrantees, contractors, successors, transferees, and assignees to comply) with applicable provisions of Federal laws and policies prohibiting discrimination, including but not limited to Title VI of the Civil Rights Act of 1964, as amended, which prohibits recipients from discriminating on the basis of race, color, or national origin (including language) (42 U.S.C. 2000d et seq.). Model assurance language can be found at http://www.justice.gov/crt/about/cor/draft_assurance_language.pdf.
    • Federal agencies that provide Federal financial assistance must require recipients to obtain these assurances from their subrecipients and must maintain systems that can record and track the recipient's agreement with these assurances (28 CFR 42.105 et seq.).
    • Federal agencies have a variety of mechanisms for securing recipient compliance with Title VI, including, but not limited to, executing assurances of nondiscrimination, conducting periodic compliance reviews, conducting complaint-based investigations, noncomplaint-based investigations, negotiating settlement agreements, and taking judicial action. These mechanisms are in addition to any programmatic compliance specific to the agency providing Federal financial assistance.
    • Agencies must ensure that communications with recipients, including at the conclusion of a term of financial assistance documenting satisfaction with financial assistance deliverables, do not imply that the recipient was or is in compliance with Title VI.

    C. Would it be helpful to have agreements with other federal agencies, subcomponents, field or district offices to provide language assistance services?

    • Agreements with other subcomponents, field or district offices, or federal agencies can be a cost-effective approach to language assistance services. For example, many intelligence community components have arrangements with the National Virtual Translation Center (NVTC) to provide translations.
      • Is your agreement with the other entity in writing?
      • Is it a reciprocal arrangement? How long is the agreement in place?
      • How do you ensure that both parties to the agreement are satisfied? Is there an opportunity to revisit the agreement?
    • Agreements between agencies to provide interpretation or translation must also consider who will serve as interpreters or translators. For example, an agency must still ensure that any interpreter or translator working on behalf of the agency is competent.
    • LEP individuals from immigrant communities may fear communicating or divulging personal information to interpreters from U.S. Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE) because of those agencies' missions. Using such interpreters may undermine efforts towards effective communication.
    • Generally, if your agency continues to seek language assistance services from a specific agency, you may consider drafting a written language assistance services agreement with that agency. A written document can clarify each entity's role and responsibility and can serve to memorialize and document the arrangement. This can be especially useful in the event of changes in staffing.

    D. Why is it important to have a Language Access Implementation Plan, Policy Directives, and Procedures in place?

    • In his Memorandum for Heads of Federal Agencies regarding the Federal Government's Renewed Commitment to Language Access Obligations Under Executive Order 13166, the Attorney General directed each federal agency to develop and implement a system by which LEP persons can meaningfully access the agency's services.
    • A Language Access Implementation Plan helps management and staff understand their roles and responsibilities with respect to overcoming language barriers for LEP individuals. The plan is a management document that outlines how the agency has or will define language assistance tasks, set deadlines and priorities, assign responsibility, and allocate the resources necessary to come into or maintain compliance with language access requirements. It describes how the agency will effectuate the service delivery standards delineated in the policy directives, including the manner by which it will address the language service and resource needs identified in a self-assessment.
    • Language Policy Directives set forth standards, operating principles, and guidelines that govern the delivery of language appropriate services. Policy directives may come in different forms but are designed to require the agency and its staff to ensure meaningful access. Policy directives should be made publicly available.
    • Language Access Procedures are the "how to" for staff. They specify for staff the steps to follow to provide language services, gather data, and deliver services to LEP individuals. Procedures can be set forth in handbooks, intranet sites, desk references, reminders at counters, notations on telephone references, and the like.

    E. Why is it important to modify or update your Language Access Implementation Plan and related Language Access Procedures?

    • In his Memorandum for Heads of Federal Agencies regarding the Federal Government's Renewed Commitment to Language Access Obligations Under Executive Order 13166, the Attorney General asked each federal agency to evaluate and/or update your current response to LEP needs by, among other things, conducting an inventory of languages most frequently encountered, identifying the primary channels of contact with LEP community members (whether telephonic, in person, correspondence, web-based, etc.), and reviewing agency programs and activities for language accessibility.
    • Agencies may need to update program operations, services provided, outreach activities, and other mission-specific activities to reflect current language needs. For example, changes in demographics, types of services provided, or the economy may impact the number and languages spoken by LEP individuals who participate in your agency's program or activities.
    • Agencies should, where appropriate, have a process for determining, on an ongoing basis, whether new documents, programs, services, and activities need to be made accessible for LEP individuals, and they may want to provide notice of any changes in services to the LEP public and to employees.
    • Each agency should establish a schedule to periodically evaluate and update agency LEP services and LEP policies, plans, and protocols. At a minimum, periodic reviews should occur on a biannual basis.

    F. What are resources that might be helpful in creating, modifying, or updating a Federal agency's Language Access Implementation Plan, Policy Directives or Procedures?

    • View federal agency plans, DOJ guidance documents, and other resources at www.lep.gov
    • Consult with the Civil Rights Division, Federal Coordination and Compliance Section, http://www.justice.gov/crt/about/cor/
    • Consult with frontline staff, management, or others in your office to evaluate the language services needed
    • Consult with internal divisions or regional offices to assess how they provide language services
    • Consult with outside experts to assess how they provide language services
    • Consult with the public, non-profit organizations and other community stakeholders
    • Obtain help in constructing multilingual websites at http://www.usa.gov/webcontent/multilingual/index.shtml

    G. Why is it important to monitor the effectiveness of your Language Access Implementation Plan?

    • It is important to monitor the effectiveness of your Language Access Implementation Plan in order to ensure that LEP individuals have meaningful access to agency programs or activities. In his Memorandum for Heads of Federal Agencies regarding the Federal Government's Renewed Commitment to Language Access Obligations Under Executive Order 13166, the Attorney General emphasized the need to evaluate your current response to LEP individuals. As some strategies may prove more effective than others, ongoing monitoring can help an agency fine-tune the provision of language assistance services and can potentially realize cost-savings over time.
    • Some federal agencies may designate a committee or staff person to be the language access coordinator responsible for monitoring and evaluating your agency's Language Access Implementation Plan. Monitoring the effectiveness of your Plan may include:
      • Analyzing current and historical data on language assistance usage, including languages served; o Observing the provision of language assistance services through audits or testing;
      • Surveying staff on how often they use language assistance services, if they believe there should be changes in the way services are provided or the providers that are used, and if they believe that the language assistance services in place are meeting the needs of the LEP communities in your service area;
      • Conducting customer satisfaction surveys of LEP applicants and beneficiaries based on their actual experience of accessing the agency's programs, benefits or services;
      • Soliciting feedback from community-based organizations and other stakeholders about the agency's effectiveness and performance in ensuring meaningful access for LEP individuals;
      • Updating community demographics and needs by engaging school districts, faith communities, refugee resettlement agencies, and other local resources;
      • Considering new resources including funding, collaborations with other agencies, human resources, and other mechanisms for ensuring improved access for LEP individuals; and
      • Monitoring your agency's response rate to complaints or suggestions by LEP individuals, community members and employees regarding language assistance services provided.

    H. Why is it important to publish your Language Access Policy Directives or inform members of the public about the availability of language assistance services?

    • In his Memorandum for Heads of Federal Agencies regarding the Federal Government's Renewed Commitment to Language Access Obligations Under Executive Order 13166, the Attorney General asked each federal agency to notify the public, through mechanisms that will reach the LEP communities it serves, of its LEP policies and LEP access-related developments. Examples of methods for publicizing LEP access information include, but are not limited to, posting on agency websites, issuing print and broadcast notifications, providing relevant information at "town hall" style meetings, and issuing press releases. Agencies should consult with their information technology specialists, civil rights personnel, and public affairs personnel to develop a multi-pronged strategy to achieve maximum and effective notification to LEP communities.
    • Other methods for publicizing language assistance services include: o Posting signs in intake areas and other entry points; o Stating in outreach documents that language services are available from the agency; o Using a telephone voice mail menu to provide information about available language assistance services and how to get them; o Working with community-based organizations and other stakeholders to inform LEP individuals of the agency's services, including the availability of language assistance services; and, o Including notices in local and ethnic media.
    • Agencies should provide notice about its language assistance services in languages LEP persons will understand.

    I. Why is it important for Federal agencies to consult with or seek input from non-governmental organizations such as faith-based groups, civic groups, civil rights organizations, etc.?

    • When language services are not readily available at a given agency or an LEP individual does not know about the availability of language assistance services, LEP individuals will be less likely to participate in or benefit from an agency's programs and services. As a result, many LEP persons may not seek out agency benefits, programs, and services; may not offer vital assistance in investigations or information that would help determine entitlement or eligibility for benefits; may not file complaints; and may not have access to critical information provided by the agency because of limited access to language services.
    • Organizations that have significant contact with LEP persons, such as schools, religious organizations, community groups, and groups working with new immigrants can be very helpful in linking LEP persons to an agency's programs and its language assistance services.
    • Community-based organizations provide important input into the language access planning process and can often assist in identifying populations for whom outreach is needed and who would benefit from the agency's programs and activities were language services provided.
    • Community-based organizations may also be useful in recommending which outreach materials the agency should translate. As documents are translated, community-based organizations may be able to help consider whether the documents are written at an appropriate level for the audience.
    • Community-based organizations may also provide valuable feedback to the agency to help the agency determine whether its language assistance services are effective in overcoming language barriers for LEP persons.

    J. Why is it necessary to develop standard ways to identify non-English speakers or LEP populations for whom you would provide language assistance?

    • In his Memorandum for Heads of Federal Agencies regarding the Federal Government's Renewed Commitment to Language Access Obligations Under Executive Order 13166, the Attorney General requested that each federal agency identify LEP contact situations and take the necessary steps to provide meaningful access. Agency staff should be able to, among other tasks, identify LEP contact situations, determine primary language of LEP individuals, and effectively utilize available options to assist in interpersonal, electronic, print, and other methods of communication between the agency and LEP individuals.
    • Staff at the point of first contact with an individual must determine whether that person is LEP, must determine his/her primary language, and procure the appropriate language assistance services. Standardizing the method for identifying an LEP person and his/her language helps an agency provide consistent and meaningful access to the program or activity sought. An individual's primary language will be identified and documented utilizing one or more of the following methods:

    1) Use of "I Speak" Language Identification Cards; an example of such a card from the U.S. Census Bureau is available at: http://www.lep.gov/resources/ISpeakCards2004.pdf;

    2) Use of a language identification poster displayed in the reception or intake area;

    3) Verification of foreign language proficiency by qualified bilingual staff (in-person, telephonically, or through video interpretation services);

    4) Verification of foreign language proficiency by a qualified interpreter (in-person, telephonically, or through video interpretation services); or,

    5) Self-identification by the LEP individual or identification by a companion.

    K. Why is it important to track the number of LEP individuals that your agency has served or who have participated in your program or activity:

    • Creating a record of language assistance services can help inform agencies with respect to whether there should be changes to the quantity or type of language assistance services. For instance, agencies may decide to hire qualified bilingual staff for positions in which there is a high-incidence language need.
    • Agencies should keep a record of the number of LEP individuals served, the primary language spoken by each LEP person encountered, and the type of language assistance provided (oral or written) during each encounter, if any.
    • Procurement offices should also consider preparing for management an annual estimate of the cost of translation and interpretation services within the agency. This will help management ensure that resources are appropriately allocated to the most critical programs, geographic areas, or languages.

    L. What are the types of language assistance services available?

    • There are two primary types of language assistance services: oral and written.
      • Oral language assistance service may come in the form of "in-language" communication (a demonstrably qualified bilingual staff member communicating directly in an LEP person's language) or interpreting. Interpretation can take place in-person, through a telephonic interpreter, or via internet or video interpreting. An interpreter is a person who renders a message spoken in one language into one or more languages. An interpreter must be competent and have knowledge in both languages of the relevant terms or concepts particular to the program or activity and the dialect and terminology used by the LEP individual. Depending upon the circumstances, language assistance services may call upon interpreters to provide simultaneous interpretation of proceedings so that an LEP person understands what is happening in that proceeding, or to interpret an interview or conversation with an LEP person in a consecutive fashion. Interpreter competency requires more than self-identification as bilingual. "Some bilingual staff and community volunteers, for instance, may be able to communicate effectively in a different language when communicating information directly in that language, but may not be competent to interpret in and out of English." Agencies should avoid using family members, children, friends, and untrained volunteers as interpreters because it is difficult to ensure that they interpret accurately and lack ethical conflicts.
      • Translation is the replacement of written text from one language into another. A translator also must be qualified and trained. Federal agencies may need to identify and translate vital documents to ensure LEP individuals have meaningful access to important written information. Vital written documents include, but are not limited to, consent and complaint forms; intake and application forms with the potential for important consequences; written notices of rights; notices of denials, losses, or decreases in benefits or services; notice of disciplinary action; signs; and notices advising LEP individuals of free language assistance services. Agencies should proactively translate vital written documents into the frequently encountered languages of LEP groups eligible to be served or likely to be affected by the benefit program or service. Agencies should also put in place processes for handling written communication with LEP individuals in less frequently encountered languages

    M. Hiring bilingual staff:

    • In his In his Memorandum for Heads of Federal Agencies regarding the Federal Government's Renewed Commitment to Language Access Obligations Under Executive Order 13166, the Attorney General asked each federal agency to assess, when considering hiring criteria, the extent to which non-English language proficiency would be necessary for particular positions or to fulfill an agency's mission. For example, an agency should determine whether the agency would benefit from including non-English language skills and competence thresholds in certain job vacancy announcements, retention policies, performance appraisals, promotion plans or criteria, and position descriptions.
    • An agency should consider language-sensitive deployment of qualified bilingual staff and interpreters to match skills with language needs. Senior management may also consider establishing appropriate adjustments in assignments and protocols for using bilingual staff who are employed in the agency to ensure that bilingual staff are fully and appropriately utilized.

    N. How do you assess your current staff's ability to provide language assistance services?

    • Quality and accuracy of the language assistance service provided by the agency is critical in order to avoid serious consequences to the LEP person and to the agency.
    • Agencies must ensure that all bilingual or contracted personnel who serve as interpreters:
      • Demonstrate proficiency and ability to communicate information accurately in both English and in the other language and identify and employ the appropriate mode of interpreting (e.g. consecutive, simultaneous, summarization, or sight translation);
      • Have knowledge in both languages of any specialized terms or concepts peculiar to the Agency's program or activity and of any particularized vocabulary and phraseology used by the LEP person;
      • Understand and follow confidentiality, impartiality, and ethical rules to the same extent the Division employee for whom they are interpreting and/or to the extent their position requires;
      • Understand and adhere to their role as interpreters without deviating into a role as counselor, legal advisor, or other roles.
    • Bilingual staff who communicate directly in language with LEP persons must also demonstrate proficiency in the target language and have knowledge in both languages of any specialized terms or concepts peculiar to the Agency's program or activity and of any particularized vocabulary and phraseology used by the LEP person.
    • An agency should also ensure that all bilingual or contracted personnel who serve as translators understand the expected reading level of the audience and, where appropriate, have fundamental knowledge about the target language group's vocabulary and phraseology.
    • An agency should periodically check the quality of translations by having a second, independent translator "check" the work of the primary translator. An agency should also consider community input and the use of audits to maintain and improve its ability to provide timely and accurate language assistance.
    • Agencies may consider developing language assessment protocols to ensure that current and prospective bilingual employees who elect to use their language skills as part of their job are appropriately qualified to serve as interpreters or translators.

    O. Understanding how to prioritize the languages that you should consistently accommodate using existing internal structures versus languages where you may need to seek external language assistance services to communicate with LEP individuals:

    • The languages spoken by the LEP individuals with whom the agency has contact determine the languages accommodated by your agency. A distinction should be made, however, between languages that are frequently encountered by an agency and less commonly-encountered languages. Many agencies serve communities in large cities or across the country. They regularly serve LEP persons who speak dozens and sometimes over 100 different languages. To provide language assistance services, both oral and written, to all of those languages may not be possible using in-house resources. Therefore, it is important to distinguish between establishing a system for communicating with LEP individuals who speak frequently-encountered languages (e.g. hiring bilingual staff members) versus enabling access to a telephonic interpretation service for LEP individuals who speak less commonly-encountered languages.
    • The extent of an agency's obligation to provide language assistance services in multiple languages is determined by the agency on a case-by-case basis, looking at the totality of the circumstances in light of four factors:
      • the number or proportion of LEP persons served or encountered in the eligible service population;
      • the frequency with which LEP individuals come in contact with the program;
      • the nature and importance of the program, activity, or service provided by the program; and,
      • the resources available to the agency and costs

    P. Using contracted interpreters or translators when your agency cannot meet the demand for language assistance services:

    • When an agency cannot meet its language assistance services needs in-house, or when there are case- or management-related reasons to seek non-staff assistance, agencies typically contract with private translation or interpretation firms. An agency must ensure that any contract for language assistance services will specify responsibilities, assign liability, set pay rates, and lay out the ways in which difficulties or disputes are resolved. For example, contracted language assistance service providers must have:
      • qualified and competent translators and interpreters, including mechanisms to ensure confidentiality and avoid conflicts of interest;
      • an ability to meet the agency's demand for interpreters;
      • an ability to meet the agency's demand for translation;
      • reasonable cancellation fees; o on-time service delivery;
      • an acceptable emergency response time; o rational scheduling of qualified interpreters;
      • rapid rates of connection to interpreters via the telephone, electronically, or by video; and,
      • effective complaint resolution when translation or interpretation errors occur.
    • Potential bidders for language assistance services contracts should also be required to commit to an adequate quality control process for all deliverables. This can include a process where multiple linguists review all translations before delivery. Contractors should detail their (and their independent contractors') capabilities with translation memory software. Contractors must also include the discounted prices in their final proposal that would result from using the translation memory software.

    Q. Critical staff training on language access issues:

    • Staff will not be able to provide meaningful access to LEP individuals if they do not receive training on language access policies and procedures, including how to access language assistance services. For policies and procedures to be effective, new and existing staff should periodically receive training on the content of the language access policy, identifying language access needs, and providing language assistance services to LEP individuals. This staff training should be mandatory for staff who have the potential to interact or communicate with LEP individuals, staff whose job it is to arrange for language support services, and managers. Training should include making procedures clear and readily available to ensure seamless provision of language assistance services.
    • Bilingual staff members who communicate "in-language" to LEP individuals, or who serve as interpreters or translators should be assessed and receive regular training on proper interpreting and translation techniques, ethics, specialized terminology, and other topics as needed. Without regular assessment and training, bilingual staff may not be able to provide the language access services necessary to ensure LEP individuals have meaningful access to your agency's program.

    R. Monitoring language assistance services provided in your agency:

    • An agency may also consider evaluating the actual experience of accessing services from the perspective of an LEP individual. This can be accomplished by managers and supervisors through regular observation of interactions between agency staff and LEP individuals. Periodic client satisfaction surveys may also be used to assess whether LEP individuals are satisfied with the level of service provided to them.
    • Agencies may also maintain partnerships with local community-based organizations and rely upon these connections for reports of inadequate language access or other language-related complaints.

    .S. Establishing a process for LEP individuals to provide feedback if they are denied services because of their lack of English proficiency:

    • An agency must also ensure that its process for receiving feedback from LEP individuals is transparent and accessible to LEP persons. Any LEP individual must be able to communicate his or her comments or suggestions regarding the failure to provide language access or any other agency criticism. And, of course, investigations of such complaints must involve appropriate language assistance services for LEP persons or witnesses.
    • Agencies should maintain a record of feedback received and any resolution based on LEP individual's comments or suggestions.

    T. Resource-sharing when translating documents:

    U. Resource-sharing when translating documents:Identifying and prioritizing documents for translation:

    • Agencies should prioritize translating vital documents.  A document will be considered vital if it contains information that is critical for accessing the agency’s program or activities, or is required by law.  Vital documents include, but are not limited to:
      • Documents that must be provided by law;
      • Complaint, consent, release or waiver forms;
      • Claim or application forms;
      • Conditions of settlement or resolution agreements;
      • Letters or notices pertaining to the reduction, denial, or termination of services or programs or that require a response from the LEP person;
      • Time-sensitive notice, including notice of hearing, upcoming grand jury or deposition appearance, or other investigation or litigation-related deadlines;
      • Form or written material related to individual rights;
      • Notice of rights, requirements, or responsibilities; and,
      • Notices regarding the availability of free language assistance services for LEP individuals.

    V. Translating disaster-preparedness or emergency information:

    W. Understanding when/how to make your website more accessible to LEP persons:

    • Providing appropriate access to people with limited English proficiency is one of the requirements for managing your agency's website. An agency may determine how much information it needs to provide in other languages, based on an assessment of its website visitors.
    • Public website content and electronic documents that contain vital information about agency programs and services should be translated into frequently-encountered languages to ensure meaningful access by LEP individuals.
    • The use of machine or automatic translations is strongly discouraged even if a disclaimer is added. If an agency decides to use software-assisted translation, it is important to have the translation reviewed by a qualified language professional before posting it to the website to ensure that the translation correctly communicates the message.
    • In his Memorandum for Heads of Federal Agencies regarding the Federal Government's Renewed Commitment to Language Access Obligations Under Executive Order 13166, the Attorney General asked each federal agency to provide a link to materials posted on your website to the Federal Coordination and Compliance Section so that it can be posted on LEP.gov.
    • More information on building multilingual websites can be found at: http://www.usa.gov/webcontent/multilingual/index.shtml

    X. Cross-agency federal resources regarding language assistance:

 
   
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