Language Assessments And Federal Law

To ensure compliance with the legal requirement for “meaningful access” to federally subsidized services, such as health care, courts, education, and transportation, organizations must take steps to evaluate and assess the language skills of employees, contractors, and other staff who provide spoken language assistance.
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Language-Assessments and federal law white paper

Title VI of the Civil Rights Act of 1964

Title VI of the Civil Rights Act of 1964 requires federally funded organizations to provide language services to limited English proficient (LEP) customers and patients. 1 Failure to do so effectively may well be national origin discrimination prohibited by federal law. 1

To ensure compliance with the legal requirement for “meaningful access” to federally subsidized services, such as health care, courts, education, and transportation, organizations must take steps to evaluate and assess the language skills of employees, contractors, and other staff who provide spoken language assistance. Indeed, federal agencies expect, pursuant to applicable federal law, that bilingual staff members are assessed before communicating with limited English proficient people to assure staff members have the necessary skills to provide accurate, effective language assistance. Such assurance, according to the United States Department of Justice, is required by federal law: “When providing oral assistance, recipients should ensure competency of the language service provider…” 1

Pronouncements by the U.S. Department of Justice (USDOJ) concerning Title VI must be taken very seriously. USDOJ has coordination and enforcement authority for Title VI while also providing authoritative guidance about Title VI requirements for the entire federal government and for the United States. 1

In addition, it is well-settled law that an agency’s interpretation of its own regulation is “controlling” unless plainly erroneous or inconsistent with the regulation. Auer v. Robbins, 519 U.S. 452, 461 (1997). USDOJ’s Title VI interpretations must be given special deference. 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).

USDOJ has been unequivocal that language skills assessments are required before personnel can provide federally required language services.

USDOJ has been unequivocal that language skills assessments are required before personnel can provide federally required language services.

For example, as USDOJ stated in 2011:

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 periodic assessment and training, bilingual staff may not be able to provide the language assistance services necessary to ensure LEP individuals have meaningful access to your agency’s programs. 2

USDOJ provided additional insight in 2014 about the necessary qualifications for those personnel providing legally required language services in a settlement with the State of Rhode Island to resolve Title VI discrimination allegations concerning Rhode Island’s state courts. In the State’s new Language Access Plan, Rhode Island describes the qualifications that personnel must demonstrate before providing “language assistance in court operations:”

In order to provide language assistance in court operations, a bilingual staff member must have:

  • A minimum of five (5) years’ experience interpreting in legal setting or
  • Successfully completed an assessment of oral proficiency by the {State of Rhode Island courts]or an accredited program in the fields of translation and/or interpretation; and
  • Completes a training session conducted by the OCI; and
  • Knows and adheres to the Code of Ethics and Professional Responsibility for Court Interpreters.3

Similar deference is also well-settled law for other federal agencies’ Title VI interpretations and pronouncements. The U.S. Department of Health and Human Services (USHHS) has provided guidance and materials consistent with USDOJ concerning assessments of language assistance providers.

One such example is contained in USHHS’s 2013 Language Assistance Plan guidance.

According to USHHS, language assistance plans must:

  • Devise criteria for assessing bilingual staff to determine ability to provide services in languages other than English and to provide competent interpreter services.
  • Maintain a list of qualified bilingual and multi-lingual staff capable of providing competent interpreter services in languages other than English. (Emphasis Added)

USHHS has provided additional guidance concerning the required assessment of staff language abilities in myriad documents and materials. The following is an excerpt from an enforcement agreement negotiated between USHHS and a hospital, in which the author participated as compliance consultant to the hospital:

Bilingual/Multilingual Staff means a Staff Member who has demonstrated proficiency in English and at least one other language, and who can interpret accurately, impartially, and effectively to and from such language(s) and English, using any specialized terminology necessary for effective communication and meeting the competency standards outlined in Part E of this section, but whose main job responsibilities are other than interpretation. A Staff Member who only has a rudimentary familiarity with a language other than English shall not be considered “Bilingual/Multilingual Staff” under this Agreement.

Part E. Foreign Language Interpreter means a person who has demonstrated proficiency in both spoken English and at least one other language; and who can interpret accurately, impartially, and effectively to and from such language(s) and English using any specialized terminology necessary for effective communication; and who understands interpreter ethics and client confidentiality needs. A person who has rudimentary familiarity with a language other than English shall not be considered a “foreign language interpreter” under this Agreement. To meet the definition of a foreign language interpreter under this Agreement, an individual must meet the following competency standards: 1. Communicate in both English and the LEP individual’s primary language accurately and effectively; 2. Interpret to and from English and the LEP individual’s primary language accurately and impartially; 3. Possess appropriate knowledge of specialized terms and concepts used frequently in the provision of [hospital’s] services and programs; 4. Understand and follow the obligation to maintain confidentiality; and 5. Understand the roles of interpreters and ethics associated with being an interpreter. Competency does not require formal certification. The underlined portions above reveal federal agencies’ concerns and expectations that there must be “demonstrated proficiency” in English and the relevant non-English language by bilingual staff members. To satisfy agencies’ regulatory requirements and overall federal law, such proficiency must be demonstrated through the development and implementation of an effective, reasonable assessment and training program. This language assessment and training program must be implemented through compliant policies and procedures, with effective education for all staff. The required language assessment and training program puts the federally subsidized organization in the best possible position to satisfy USDOJ, other federal agencies, and federal law. Indeed, such a language assessment and training program, once fully implemented, will demonstrate that the federally subsidized health care provider, county agency, state agency, city agency, state court, or other federally subsidized organization is complying with the legal requirement to “:…ensure competency of the language service provider…” 4 and thus comply with Title VI’s mandate for “meaningful access” to federally subsidized health care, justice, education, transportation and other services.

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 Attorney. During his Justice career, Mr. Adelson had national enforcement responsibility for many federal laws. At DOJ, I also shared responsibility for enacting federal language assistance policy. For example, I 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.

References

  1. Department of Justice Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons: Federal Register /Vol. 67, No. 117 /Tuesday, June 18, 2002 at 41461
  2. USDOJ May 2011, Language Access and Planning
  3. Rhode Island Judiciary, Administrative Office of the Courts, April 2014
  4. Department of Justice Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons: Federal Register /Vol. 67, No. 117 /Tuesday, June 18, 2002 at 414

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