Overview: The Department of Health and Human Services has published a revised Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient (LEP) Persons. The Revised HHS LEP Guidance, issued pursuant to Executive Order 13166, replaces HHS' August 30, 2000, LEP Guidance.
In October 2001, The Department of Justice (DOJ) directed all Federal agencies that provided Federal financial assistance to republish their recipient LEP Guidance for additional public comment. HHS received nearly 200 public comments when it did so, mostly expressing support for the principles behind the Guidance, but also concern about coverage, compliance costs, and use of family members and friends as interpreters. Subsequently, in June 2002, DOJ issued LEP revised Guidance and, to reconcile different approaches in guidance offered by various federal agencies, directed other agencies to follow suit, using DOJ's Guidance as a model. This revised HHS LEP Guidance, adapted to the context of HHS recipients and beneficiaries, reflects the approach taken in the DOJ Guidance, and consideration of the public comments received.
The clarity that this Guidance provides and its uniformity with the DOJ Guidance means better services and greater consistency in language access for LEP persons.
Among other things, the revised Guidance:
Reaffirms our commitment to Title VI and its application to national origin discrimination.
- The Department and OCR continue to be committed to ensuring access by LEP persons to HHS funded programs and closing the health care gap among American communities.
Brings the HHS Guidance into conformity with the DOJ Guidance, as appropriate to HHS funded-programs.
For instance, rather than the seven factors identified in the prior HHS Guidance, the revised Guidance joins other federal agencies in adopting and applying the four language access assessment factors identified in the DOJ Guidance.
- the number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee;
- 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 to people's lives; and
- the resources available to the grantee/recipient and costs.
Better applies the factors in the context of LEP persons who seek services from recipients of Federal financial assistance from HHS.
The revised Guidance does not change the law of Title VI, as applied to LEP persons, but it enhances the quality of the technical assistance provided, by clarifying the nature and extent of recipient obligations and the rights of LEP persons. Among other things, the revised Guidance:
- discusses how the four factors should be applied in determining the extent to which language access services should be provided to LEP persons;
- clarifies that where an obligation exists, recipients must provide competent and timely language assistance services at no cost to their LEP clients;
- cautions recipients against using a client’s friends or family members, especially children, as interpreters, unless the recipient has informed their client of the availability of free, competent and confidential language assistance services and the client still chooses to use a family member or friend as an interpreter;
- advises recipients that, where concerns about competence, confidentiality, appropriateness or conflict of interest are present, interpretation services may still have to be provided in lieu of using friends or family members.
Highlights the Department's focus on Technical Assistance, and its Efforts to Promote Voluntary Compliance.
The revised Guidance:
- stresses that HHS is committed to assist covered entities through technical assistance;
- provides examples for providing language assistance;
- provides helpful information concerning competency of interpreters and translators and when it is necessary to translate materials, identifies safe harbor standards to help ensure compliance with Title VI.