Service to Persons with Limited English Proficiency
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  • I recently saw a woman at the cash register, turn to her young daughter to tell her what the clerk had said. That may have been a problem for family dynamics, but probably was not a critical problem. I also recently heard someone describe a trip to the emergency room, where she overheard a doctor having a child of about 10 interpret as the doctor described the mother’s sexually transmitted disease. Aside from the inappropriateness of this situation, do you think there is a strong likelihood that the child would be a competent interpreter? So, even without any laws requiring interpretation, other considerations, such as malpractice, should prompt professionals to ensure language access. The legal system, in particular, needs to ensure adequate language access, or serious inequities may result.
  • For people who do not speak English very well, it is hard to access programs and services that they otherwise would be able to benefit from. Because lack of proficiency in English usually is connected to national origin, language access to programs and services is considered part of civil rights laws in the United States. The major civil rights law that deals with the obligation to provide language access is Title VI of the Civil Rights Act of 1964. Title VI has been the law since, well, 1964. However, it has been getting a lot more attention recently. [Read text] Before 2000, there were some Title VI regulations, and some cases, but the importance of this law expanded significantly when President Clinton signed an Executive Order in 2000, and with the stroke of a pen changed things dramatically for immigrants. Executive Orders can be rescinded, but President Bush did NOT rescind Executive Order 13166. The term “LEP (limited English proficiency)” is used in the regulations for Title VI. Some people prefer the term “language access” to describe this area. However, because of the use of “LEP” in the regulations, it is sometimes necessary to use this term. Iowa also has a statute dealing with interpretation and translation, chapter 622A, but it applies only to courts and administrative agency hearings, whereas Title VI applies much more broadly.
  • The website is intended to be a “one-stop shopping” site for LEP matters. --It has the text of Title VI, the Executive Order, and links to the regulations for all federal agencies that give funds to recipients. --It has resources for recipients, such as links to census data (for information about languages spoken in each state), and “I Speak” sheets, which help identify what language someone speaks. --Each agency can post material that pertains to its recipients. For example, the HHS resources includes a link to a 246 page document designed to help health care organizations and practitioners meet LEP requirements. (“A Patient-Centered Guide to Implementing Language Access Services in Health Care Organizations.”) --For language access issues concerning the courts, Deputy State Court Administrator John Goerdt has handled most of the work, and is a tremendous resource. He has authored a “Bench Card” for judges to use when working with interpreters in the courtroom.
  • These are examples of covered entities. Each agency lists “who is covered” in the guidance to recipients. Again, the LEP obligation follows the money. If a recipient subcontracts for services, the subcontractor must follow LEP requirements as well. The HHS guidance illustrates this clearly. Sometimes the guidance for recipients will exclude certain entities. For example, HHS guidance excludes physicians whose only involvement is receipt of Medicare Part B payments. HUD guidance excludes landlords whose only involvement is receipt of voucher choice payments from a Housing Authority.
  • Basically, if someone says he or she wants an interpreter, he or she should have one, even if the person speaks some English. The HUD regulations said it well, I thought.
  • In some cases, the application of the 4 factors will require that the recipient hire staff who are bi-lingual. In other cases, the recipient may only need to have identified community resources they will use when needed. The least any recipient should be able to do is subscribe to one of the telephone interpretation services, which cost nothing unless you use them. One is the AT&T language line. (ILA uses Pacific Interpreters.)
  • DOJ guidance: “… [W]hen oral language services are necessary, recipients should generally offer competent interpreter services free of cost to the LEP person….[T]his is particularly true in a courtroom, administrative hearing [and] pre- and post-trial proceedings….” Recently, the US Attorney General’s office sent a strongly worded letter on this topic to the courts of each state. The letter is included in your materials. This letter will likely change how things are done in Iowa. Under a state statute, courts have sometimes billed one of the parties for the interpreter. Iowa Legal Aid staff have been alert to the potential challenge to this practice, but have not had an appropriate case where our client was billed.
  • Payment, and provision of services beyond the court room: Under the recent letter from the US Attorney, not only is the interpreter cost not to be borne by a party, but other court services are also to be made accessible AND provided for free. Please look at page 3, items 3 and 4. [Go over these items.] Has anyone ever seen these services provided? So, this letter may change things significantly. Mediator competence and availability: The Iowa Judicial branch has a roster of court interpreters. Until recently, there was no way to look at the list and know if the interpreter had passed a competency test. The federal courts have had a competency test for some time now, but there were only a few people in Iowa who had passed it. The test has a very, very low pass rate. Another test, with a higher pass rate, is used by a consortium of states. Iowa joined this group, which deals with language access issues. Iowa is now encouraging roster interpreters to take the competency test. The roster of Iowa mediators on the judicial website now designates which ones have passed the competency test. There are not very many who have.
  • The complaint process is certainly not meaningless, but yet it is not the same as being able to file a lawsuit in court. Note: Can file in court if the discrimination was intentional. There is a private right of action in that case. The agency (Dept of Justice) can certainly enforce the regulations, and has indicated in the letter (in your materials) that it may do just that.

Transcript

  • 1. Presentation to the Iowa Legal Aid Board of Directors October 16, 2010
  • 2.
    • If the sales clerk at the check-out asked you a question, and you had to have your 10-year-old child interpret?
    • How about having your 10-year-old interpret as the doctor describes your illness?
    • What if you could not understand the lawyer’s explanation of your rights?
    • Or the questions being asked by the police? By the prosecutor?
  • 3.
    • 2000 census data: By far, the most common language spoken at home is Spanish.
    • 2010 census data not available
    • Office of Latino Affairs: 96,793 people age 5 or older in 2008 who speak Spanish at home. Of those, more than half say they speak English “very well.”
  • 4.
    • Total intakes in a language other than English-782:
      • Spanish-556;
      • Bosnian-43;
      • Arabic-38;
      • Vietnamese-26;
      • French-22;
      • Somali-19;
      • Sign language-11
    • Other languages in single digits.
  • 5.
    • Mexican 74.4%
    • Guatemalan 5.0%
    • Puerto Rican 4.5%
    • Salvadoran 4.0%
    • Cuban 1.3%
    • All other 10.8%
    • About 36% of Iowa Latinos are foreign-born
    • “ Latinos in Iowa: 2010”
    • Iowa Office of Latino Affairs
  • 6.
    • As of July 2009: 134,402—4.5 %
      • 63% increase from 2000
      • Iowa’s largest race or ethnic minority
    • Projected population as of July 2040: 384,320—11%
  • 7.
    • “ Limited English Proficiency” is the term used in federal laws. It means:
      • Individuals who do not speak English as their primary language and
      • who have a limited ability to read, write, speak, or understand English.
    • Many people prefer to speak of a “Language Access Plan,” rather than an “LEP Plan.”
  • 8.
    • Federal law requires it for recipients of federal funds.
    • The Supreme Court has held that failure to take reasonable steps to ensure meaningful access for LEP persons is a form of national origin discrimination prohibited by Title VI of the Civil Rights Act of 1964. Lau v. Nichols
  • 9.
    • No person in the United States shall, on the ground of race, color, or national origin ,
    • be excluded from participation in, be denied the benefits of, or be subjected to discrimination
    • under any program or activity receiving Federal financial assistance.
  • 10.
    • Purpose of the August 2000 order:
    • “ to improve access to federally conducted and federally assisted programs and activities
    • for persons who, as a result of national origin, are limited in…English proficiency (LEP)….”
  • 11.
    • Department of Justice (DOJ) issued regulations in conjunction with the Executive Order, which apply to recipients of DOJ funding.
    • DOJ regulations serve as a template for other federal agencies in developing their own regulations for recipients.
  • 12.
    • http://www.lep.gov
  • 13.
    • If a recipient gets federal funding or assistance for some but not all programs, Title VI applies to ALL, not just those receiving federal funds.
    • Example: If HHS provides assistance to a state department of health to immunize children, the entire state department of health is covered by Title VI.
  • 14.
    • Iowa Legal Aid itself has an LEP obligation as a recipient of federal funds.
      • Iowa Legal Aid has its own LEP policy and staff assigned to monitor language access.
    • Iowa Legal Aid represents LEP clients to enforce rights under Title VI and other laws:
      • Agency and court proceedings
      • Informal advocacy to enforce LEP provisions.
  • 15.
    • Language Access (no cost to clients):
      • Staff, AmeriCorps members with proficiency in other languages are tested for competency (presently, mostly for Spanish)
      • Contract with Pacific Interpreters for telephone interpretation
      • Contract with International Language Services for translation services (written)
    • Iowa Legal Aid has an LEP Plan, approved by the Board of Directors
  • 16.
    • Iowa Legal Aid received a one-year grant to focus on interpretation and translation for LEP clients and prospective clients.
    • Collaboration with Des Moines Area Community College, Interpretation/Translation Certification Program
    • Up to 4.2 full-time equivalent positions (2 full-time, 3 reduced half-time, and 4 quarter-time)
    • Received notice of the grant in September; hope to have first hires by late October.
  • 17.
    • DOJ: law enforcement, courts, sub-recipients
    • HHS: hospitals; nursing homes; home health agencies; state, county and local health agencies and welfare agencies; public and private contractors, subcontractors and vendors
    • HUD: Housing Authorities, project-based subsidized housing
  • 18.
    • The individual does. For example:
    • “ HUD and its recipients do not determine who is LEP. The beneficiaries of the services and activities identify themselves as LEP.”
    • 72 Fed. Reg. No. 13 January 22, 2007 (p. 2737)
  • 19.
    • (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 into 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 and costs.
  • 20.
    • If the application of the four factors indicates the service must be provided, it is free to the LEP person.
  • 21.
    • Interpreter Issues:
      • Who will receive an interpreter?
      • How to determine interpreter competence
      • Payment for interpreters
    • What about other required court programs: Children in the Middle? Mediation?
    • “ Court-managed offices, operations, and programs” or language access in encounters with professionals
  • 22.
    • Iowa Legal Aid has used the LEP regulations to advocate for clients who were not provided with interpretation or translated documents:
      • Housing Authorities
      • Department of Human Services
      • Workforce Development
      • Social Security Administration
  • 23.
    • Enforcement is mostly by the agency that gave the funds to the recipient. Will try to get “voluntary compliance” by recipient.
    • No private right of action for a disparate impact claim under Title VI. Alexander v. Sandoval , 532 U.S. 275 (2001)
    • No enforcement of Title VI regulations under Section 1983. Save Our Valley v. Sound Transit , 335 F.3d 932 (9 th Cir. 2002)