Federal Agencies Republish LEP Guidance for Comments; Advocates Submitting Supporting Comments

IMMIGRANTS & PUBLIC BENEFITS

Language Access

Federal agencies republish LEP guidance for comments; advocates submitting supporting comments
Immigrants' Rights Update, Vol. 16, No. 1, February 28, 2002

Nearly four months after the Dept. of Justice reaffirmed former President Bill Clinton's executive order directing federal agencies to publish guidance on serving limited English-proficient (LEP) persons, only a handful of agencies have issued them. Released on Oct. 26, 2001, the DOJ memorandum set out a four-part balancing test for agencies that provide federal funds and their recipients to use in assessing the scope of their obligations to provide language assistance. It also directed agencies to issue (or reissue, if they had already released them) guidance for public comment in light of the balancing test. Agencies were instructed to complete all revisions by late February 2002 (see "Justice Dept. Confirms Validity of Clinton's Order Regarding Access to Services for Limited English-Proficient Persons," Immigrants' Rights Update, Nov. 16, 2001, p. 14). Because opponents of the executive order are expected to express their views forcefully, it is important for supporters of improving LEP persons' access to services to be equally vigorous in submitting comments.

Recipients of federal funding are required to provide LEP individuals reasonable access to their programs and services. Clinton issued Executive Order 13166 (published at 65 Fed. Reg. 50,121-22 (Aug. 16, 2000)) to ensure that LEP persons have meaningful access to programs and activities conducted and funded by the federal government, in accordance with Title VI of the Civil Rights Act of 1964. Title VI prohibits recipients of federal funds from discriminating on the basis of race, color, or national origin. Discrimination on the basis of national origin includes the failure to provide LEP persons with meaningful access to federally funded activities and programs.

With the change in presidential administrations, questions about the continuing validity of the Clinton order arose, prompting the Justice Dept. to release its clarifying memorandum. In addition to requiring agencies to issue or reissue their guidance, the memorandum directed agencies to determine (1) whether their guidance should be classified as rulemaking under the Administrative Procedures Act, triggering certain procedural requirements, and (2) whether their guidance constituted a "significant regulatory action" under Executive Order 12866, requiring review by the Office of Management and Budget. However, the DOJ, which was the first agency to republish its guidance, did not address these issues. Many advocates have criticized this omission, believing that other agencies were waiting to see how the DOJ addressed these issues before publishing their own guidance.

The memorandum also established aggressive timelines, requiring all revisions to be completed by Feb. 26, 2002. However, as of mid-February, only four agencies had published or republished guidance: the DOJ, the Dept. of Health and Human Services, the Corporation for National and Community Service, and the General Services Administration.

In expressing support for the rights of LEP persons, advocate emphasize that access to services for LEP persons is a civil right. The comments also address the benefits of providing access to LEP recipients, the costs of denying access to essential services, and effective models for providing access to services. Questions to answer when evaluating agencies' guidance include:

Does the definition of recipients/beneficiaries make clear that sub-recipients are also bound by the guidance?
Does the guidance make clear that Title VI obligations extend to all of a recipient's activities, whether or not an activity is federally funded?
Does the guidance make clear that the "balancing test" set forth by the DOJ memorandum does not relieve funding recipients of their obligation to provide access? Are examples from the available range of language assistance services provided?
Are interpreter/translator competency standards addressed?
Are recipients required to affirmatively notify beneficiaries of their right to use an interpreter at no cost to them?
Does the guidance warn against the use of friends and family members as interpreters? Are formal arrangements and competency standards required for the use of community organizations and volunteers?
Is telephone contact addressed?
Are literacy issues addressed?
Are funding recipients advised to develop a comprehensive written policy to promote language access and to measure their performance under the policy?
Does the guidance direct funding recipients to assess the LEP population in their service area(s), including the languages most commonly spoken, and to update that assessment regularly?
Does the guidance direct recipients to train their staff on the requirements and strategies for providing language access, including work with interpreters and cultural competency issues?
Does the agency ask about costs? (Advocates emphasize that language assistance is a civil right and that the executive order clarified recipients' preexisting obligations under Title VI rather than imposing new obligations.)

Links to guidance documents, as they were published in the Federal Register, have been posted on the NILC web site, under Language Access. Materials and models comments developed by NILC staff are also posted.