The Four-Factor Analysis

Starting Point For Federal Language Access Compliance

This white paper provides organizations with a formula to help them determine the how, when, where, and to whom of federally required language assistance. The Four-Factor Analysis, developed by the U.S. Department of Justice (USDOJ), is recognized by federal agencies as the fundamental first step in determining how to comply with Title VI’s language assistance mandates and provide LEP people with “meaningful access” to federally funded programs.
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Federal Language Access Compliance

With 80 percent of hospitals encountering LEP individuals frequently, there is an increasing demand for effective language access services.”

U.S. Department of Health and Human Services

Every day, organizations encounter customers, patients, clients, and litigants who are limited English proficient (LEP), who speak and read little or no English. Being able to communicate with LEP people and providing them with effective language assistance are absolutely essential, and are often required by law. Indeed, as the U.S. Department of Health and Human Services has stated, “With 80 percent of hospitals encountering LEP individuals frequently, there is an increasing demand for effective language access services.”1

There are many federal laws with language assistance and translation requirements. The federal law that requires federally funded and assisted health care providers, courts, nonprofits, states, counties, cities, and school districts to provide effective and meaningful language assistance is Title VI of the Civil Rights Act of 1964, 42 United States Code §§ 2000d – 2000d-7.2

Understanding how to provide federally required language assistance, in what languages, and to which communities can be a daunting task. It is axiomatic that the “languages spoken by … LEP individuals with whom the agency has contact determine the languages accommodated by [the] agency,”3 is a good place to begin evaluating language assistance needs. However, each federally funded agency and organization has its own requirements beyond language identification to inform providing the legally mandated “meaningful access” to federally funded “programs, activities, and services.”4

Organizations need a formula or rubric to help them determine the how, when, where, and to whom of federally required language assistance. The Four-Factor Analysis, developed by the U.S. Department of Justice (USDOJ), is recognized by federal agencies as the fundamental first step in determining how to comply with Title VI’s language assistance mandates and provide LEP people with “meaningful access” to federally funded programs. The analysis is also a key box to check by federal regulators when conducting Title VI investigations or evaluations of an organization’s language assistance compliance. For example, as the U.S. Department of Health & Human Services has stated: “[Federal funding] recipients may want to consider documenting their application of the four-factor test to the services they provide.”5 As an essential tool, the Four-Factor Analysis is also mandated by federal agencies in their consent agreements and enforcement actions for organizations to use in assessing the “… language needs of the population to be served.”46

The Four-Factor Analysis is designed to be a “…flexible and fact-dependent standard” and “the starting point” for language assistance compliance.”7

The four factors are:

  1. The number or proportion of LEP persons eligible to be served or likely to be encountered by the 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.1

Under federal law, a federal agency’s interpretation of its own regulation is legally “controlling.” Auer v. Robbins, 519 U.S. 452, 461 (1997). Title VI interpretations, including the Four-Factor Analysis of USDOJ and other federal agencies, must be given special attention by organizations receiving federal funds. See Executive Order No. 12250, 45 Fed. Reg. 72,995 (Nov. 2 1980), Consolidated Rail Corporation v.Darrone, 465 U.S. 624, 634 (1984), and Andrus v. Sierra Club, 442 U.S. 347, 357-58 (1979). To begin, let’s briefly examine each of the four factors and how to approach using them properly.

First Factor

The first factor pinpoints the Title VI language access starting point – “The population eligible to be served by race, color, and national origin.” This factor must be applied to each language group in the federally funded organization’s service community.

To apply the first factor correctly, organizations must determine those LEP people who actually interact with the organization and those LEP people the organizations are “likely” to encounter.8 The “likely to encounter” requirement can be challenging. Answering this question and analyzing the relevant data involves organizations knowing their communities – knowing their “likely” customers and how to provide them access to their federally funded services.

“This analysis includes persons in a geographic service area with whom your agency comes into contact while carrying out agency functions. For the assessment to be accurate it must also include all communities who are eligible for services or are likely directly affected by programs or activities. Agencies may determine the linguistic characteristics of an LEP population in a service area by reviewing available data from federal, state, and local government agencies, community, and faith based organizations.”9

Second Factor

The second factor calls for information about how often LEP people use particular federally subsidized programs and services.

Analysis of this factor will involve data from the entire organization and each individual department and agency within the organization about frequency of use. Determining such frequency can be aided by staff-conducted surveys of customers and patients, for example.

Third Factor

The third factor involves objectively determining how important the federally subsidized program, activity or service is to people in the community.

One way to evaluate this factor is provided by USDOJ: “A recipient needs to determine whether denial or delay of access to services or information could have serious or even lifethreatening implications for the LEP individual.”10

In short, the more important and crucial the service, the higher the level of language services needed to comply with Title VI. For example, public education, public transportation, health care, law enforcement, and access to the courts are considered to be among the most important of federally subsidized services. Consequently, they require the highest level of language access services and resources, such as in-person qualified interpreters.

Fourth Factor

The fourth factor concerns an organization’s resources and the cost of language services.

This factor examines the size of the federally subsidized organization and its overall budget. In essence, the larger the organization, such as a big city 1,000 bed hospital, and its budget, the more it will be expected to do to provide language access compared to smaller entities, such as a rural area’s 20 bed hospital.

“Smaller recipients with more limited budgets are not expected to provide the same level of language services as larger recipients with larger budgets…Larger recipients should ensure that their resource limitations are well substantiated before using this factor as a reason to limit language assistance.”

One big caution – The fact that language services and language assistance cost money and resources is no excuse for not providing them. Once an organization accepts federal financial assistance, the law requires that organization to comply with the law, in this case Title VI’s language assistance mandates.

As USDOJ has explained:

“[F]iscal pressures are not a blanket exemption from civil rights requirements, and our investigation has determined that financial constraints do not preclude [an organization] from taking further reasonable steps to comply with its federal nondiscrimination obligations, for several reasons.

This discussion is intended as just an introduction to the Four-Factor Analysis and overall compliance with Title VI of the Civil Rights Act of 1964. Legal compliance is a marathon, not a sprint. Many factors and moving parts are necessarily involved. Concerning Title VI-required language assistance, there is no better place to begin the marathon than the FourFactor Analysis.

About the Author

Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws, such as Title VI of the Civil Rights Act of 1964, Rehabilitation Act of 1973, Americans with Disabilities Act, Affordable Care Act, and federal voting laws. Mr. Adelson is a former U.S Department of Justice Senior Trial Attorney. During his Justice career, Mr. Adelson had national federal law enforcement and policy responsibility. At DOJ, he shared responsibility for enacting federal language assistance policy. For example, Mr. Adelson approved for Federal Register publication the U.S. Department of Transportation’s Policy Guidance Concerning Recipients’ Responsibilities to Limited English Proficient (LEP) Persons.

Federal Compliance Consulting LLC provides consultation, risk management assessment, and training services across the United States and throughout the world.

References

  1. COMPLIANCE REVIEW INITIATIVE: Advancing Effective Communication In Critical Access Hospitals – US HHS, 2014
  2. For example: “…the failure of a hospital receiving federal funds to take reasonable steps to ensure meaningful access by LEP individuals to the hospital’s programs or services may constitute a violation of Title VI and its implementing regulations.” Id.
    And See: “Longstanding Justice Department regulations also expressly require communication between funding recipients and program beneficiaries in languages other than English to ensure Title VI compliance.” Nat’l Multi Hous. Council v. Jackson, 539 F. Supp. 2d 425, 430 (D.D.C. 2008)
  3. U.S. Department of Justice Language Assessment and Planning, 2011
  4. Title VI of the Civil Rights Act of 1964, 42 United States Code §§ 2000d – 2000d-7 and 28 C.F.R. § 42.101 et seq.
  5. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 2003, 47314 Federal Register, Vol. 68, No. 153
  6. See for example: U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES OFFICE FOR CIVIL RIGHTS and MEE MEMORIAL HOSPITAL Transaction Numbers: 12-143846, 13-151016 & 13-153378, 2014
  7. 7 U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 2003, 47314 Federal Register, Vol. 68, No. 153
  8. Id
  9. US DOJ Language Assessment and Planning, 2011
  10. U.S. Department of Justice Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 2002, 67 Federal Register 41464

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