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Language Assistance and Public Benefits. Title VI and Food Stamp Act Obligations. Michael Mulé, Empire Justice Center Aimee Stowe, Georgia Legal Services Program Michelle Lerner, Legal Services of Northwest Jersey Doreena Wong, The National Health Law Program

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language assistance and public benefits
Language Assistance and Public Benefits

Title VI and Food Stamp Act Obligations

Michael Mulé, Empire Justice Center

Aimee Stowe, Georgia Legal Services Program

Michelle Lerner, Legal Services of Northwest Jersey

Doreena Wong, The National Health Law Program

Kate Meiss, Neighborhood Legal Services of LA County

NLADA 2007 Annual Conference

lep 101
LEP 101

Authority

  • Title VI Of The 1964 Civil Rights Act, 42 U.S.C § 2000d et seq.
    • 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.
  • Lau v. Nichols, 414 U.S. 563 (1974)
    • Failing to provide appropriate language services is a form of national origin discrimination prohibited by Title VI.
slide3

Executive Order 13166 (2000)

  • A directive to federal agencies to:
      • Publish a plan that assures LEP persons meaningful access to all federally administered programs and services
      • Publish guidance for federal-funding recipients that assures LEP persons meaningful access to the programs and services the recipients administer
  • Required the United States Department of Justice (DOJ) to guide federal agencies in forming LEP plans and meeting their LEP obligations
slide4

DOJ Guidance

  • The DOJ’s initial guidance, published in 2000, clarified Title VI responsibilities.
  • Alexander v. Sandoval, 532 U.S. 275 (2001), limited private rights of action available under Title VI, holding there is no private right of action to enforce Title VI disparate-impact regulations (but did not affect the private right of action for intentional discrimination under § 601).
  • The DOJ clarified in its final LEP guidance, published in 2003, that Sandoval did not consider the validity of EO 13166, the disparate-impact regulations of Title VI, or the authority for federal agencies to enforce LEP guidance.
  • Administrative enforcement still valid after Sandoval, and is the primary enforcement mechanism.
the hhs guidance
The HHS Guidance
  • United States Department of Health and Human Services (HHS), like other federal agencies, published a final guidance to its funding recipients on meeting Title VI requirements. For access to other agencies’ guidance, visit www.lep.gov.
  • HHS Final Guidance (2003):
    • Sets forth how a HHS grantee, like a state Medicaid agency, determines the extent of its obligations to provide LEP services – a four factor test:
      • The number or proportion of LEP persons are served or are likely to be served by the grantee;
      • The frequency with which LEP persons come in contact with the grantee or programs it administers;
      • The nature of the program, or in other words, the impact it has on peoples’ lives;
      • The resources available to the grantee – financial and otherwise.
hhs guidance cont
HHS Guidance (cont.)
  • Delineates the five elements of an effective LEP plan:
    • Identifying LEP customers or participants, by determining languages spoken in the communities served and the frequency and nature of language service needs;
    • Providing for the process and measures that should be taken in providing language access services;
    • Training grantee staff on the plan, implementation, and compliance;
    • Giving notice to LEP persons that language access services are available; and,
    • Monitoring and updating the LEP plan.
  • Best Practice:
    • OH Plan (Includes county template)
    • MN Plan
common features across programs
Common Features Across Programs
  • State public benefits agencies must provide meaningful access to LEP individuals based on the HHS Guidance
  • These state agencies provide:
    • medical assistance, (Medicaid / SCHIP)
    • economic assistance, (Food Stamps)
    • child and family services, (TANF)
    • and employment services (TANF)
  • State programs subject to the HHS LEP Guidance have developed common LEP policies and models of best practices

Copyright © 2007 Empire Justice Center

common features of lep plans
Common Features of LEP Plans
  • Providing, Tracking, and Notice of Language Services for LEP Individuals
  • Translation of documents, Oral Interpreters, and Fair Hearings
  • Staff Training, Title VI Compliance and Coordination
assessing providing services
Assessing / Providing Services
  • A method to determine the language needs of LEP individuals, I Speak Cards
  • Noting the language need on the case file of the LEP applicant / recipient
  • Assessing the language needs of LEP individuals at every interaction (in person, on the phone or by mail)
tracking language needs
Tracking Language Needs
  • Tracking language needs of LEP applicants / recipients for written and spoken communication with the office
  • Using Census language / income data and school data to identify changes in LEP communities and language needs
  • Working with community service organizations for LEP communities
notice of language services
Notice of Language Services
  • Informing LEP communities about services through non-English media
  • Language services posters in waiting rooms, intake areas, and other spaces where they are likely to be seen
  • Telephone systems with messages in multiple languages or access to an interpreter
translation of documents
Translation of documents
  • Written translations for more common languages
  • Language block/ “babel notice” with sight translation for less common languages
written translations
Written translations
  • HHS guidance safe harbor provision:
    • Vital documents
    • Into languages spoken by 5% or 1,000 households of eligible population in service area (not of current recipients)
written translations14
Written translations
  • What are vital documents under HHS guidance?
    • importance of the program, information, encounter, or service involved
    • the consequence to the LEP person if the information in question is not provided accurately or in a timely manner.
slide15

Written translations

  • Some vital documents in all 4 programs:
    • Applications
    • Adverse action notices
    • Letters with date and times of meetings
    • Brochures explaining program rules and requirements
    • Notice of penalties
    • Assignments and repayment agreements
    • Verification checklists
    • Appeal forms
    • Notices of hearings
    • Notice of free language services
    • Outreach materials
written translations16
Written translations
  • Logistics of written translation
    • Competency of translators
    • Contracting with translation companies
    • Automating translated notices with language codes
written translations17
Written translations
  • Best practice (WA and MA):
    • Treating notice sent in wrong language (under state or local translation policy) as inadequate notice, requiring restoration of benefits and renoticing
sight translation
Sight Translation
  • For less common languages
    • Sight translation
    • Language blocks
    • “Babel” notices
    • Make sure that number people call is staffed with someone who can actually translate or can access interpreter/ Language line
oral interpretation
Oral Interpretation
  • Must provide oral interpretation to all LEP persons
  • Can not rely on family or friends unless LEP individual insists after being informed of rights
    • Competence/accuracy
    • Confidentiality
    • Bias/ conflict of interest
  • Do not use minors
oral interpretation20
Oral Interpretation
  • Agency can choose type of interpreter based on prevalence of particular language and situation
    • Bilingual intake and case workers
    • Staff interpreters/ pooled interpreters
    • Contract interpreters
    • Telephonic interpretation/ phone banks
oral interpretation21
Oral Interpretation
  • Emergencies and walk-ins
    • If no one on staff, using telephonic interpreters
  • Phone system
    • answering machines
    • off-hours
    • voice mail system
  • Phone calls
    • on-site staff or interpreters
    • Language line or phone bank
oral interpretation22
Oral Interpretation
  • Competency
    • Do not need to be certified but helpful
    • Must be assessed for competency
      • Fluency in both languages
      • Mastery of relevant technical terms
      • Understanding of regionalisms
      • For interpreters: Understanding of methods of interpretation (consecutive, simultaneous)
      • For interpreters: Understanding role of interpreter, confidentiality, impartiality
    • Agency should have testing process (WA)
hearings
Hearings
  • Must provide interpreter
  • Guidance strongly encourages certified interpreters because accuracy so important
  • Impartiality/ conflict of interest and due process
  • Notification of right to interpreter for hearing (Babel notice format)
  • Method of requesting interpreter that does not require an interpreter
training staff
Training Staff
  • An essential element of providing meaningful access to LEP individuals
    • All staff should be aware of the LEP plan and how to access it or get more information on it.
    • Employees in contact with the public – front desk staff, receptionists, and case handlers – should have in-depth training on LEP policies and procedures and be able to follow them.
    • All management should know and understand LEP policies and procedures to that they can reinforce its importance and ensure compliance.
coordination and compliance
Coordination and Compliance
  • Self-monitoring and Agency Coordination of Services
    • Grantees have a duty to monitor implementation and compliance of LEP plans
    • Some states’ public benefits programs have created a Language Access Coordinator (LAC) or LAC office
    • Civil Rights Compliance Office
coordination and compliance26
Coordination and Compliance
  • Wisconsin Model
    • Monitors vendors and contractors for compliance with LEP plan pursuant to 28 C.F.R. § 42.410.
    • Contractors and recipients of State funds must provide Letters of Compliance
    • Coordinates LEP resources
    • Provides training to vendors, contractor, and staff
  • Best Practice: seek customer or recipient feedback about the quality and appropriateness of services provided
    • Ex. GA’s Interpreter Evaluation Form, available in Spanish
enforcement
Enforcement
  • Federal law requires state federal-funding recipients to publicize Title VI requirements and complaint procedures. 28 C.F.R. § 42.405.
  • Benefits recipients and non-attorney advocates may also file complaints
  • A federally funded state agency may receive complaints but the federal compliance office, the HHS Office of Civil Rights (OCR), must review all parts of the state investigation of the complaint, from procedure to disposition.
  • HHS provides a Fact Sheet on how to file a discrimination complaint, as well as a Discrimination Complaint Form, available in Spanish and English
hhs office of civil rights intervention
HHS Office of Civil Rights Intervention
  • Investigates complaints
  • Provides technical assistance / consultation
  • Reviews state compliance offices
  • Makes findings of discrimination
  • Can enter into resolution agreements, also called “remedial plans”, with offending entities
  • Follow-up on compliance with resolution agreements
medicaid requirements
Medicaid Requirements
  • Comply with Title VI
  • Requires effective communication, including provision of qualified interpreters free of charge
  • Provide clear notices and explanations, and translated materials
medicaid requirements30
Medicaid Requirements
  • Early and Periodic Screening, Diagnosis and Treatment (EPSDT)
    • Inform individuals using “methods of communication that recipients can clearly and easily understand”
    • Use accepted methods for informing LEP persons
medicaid managed care
Medicaid Managed Care
  • State must provide enrollment notices & information, instructional materials, & notices affecting rights in easily understandable language
  • State must establish methodology for determining prevalent non-English languages & make written information available
medicaid managed care32
Medicaid Managed Care
  • State & health plans must make oral interpretation services available & free of charge
  • State & health plan must notify enrollees of free interpreter services & translated materials and how to access
  • Health plan must inform enrollees about current providers & languages spoken
medicaid managed care33
Medicaid Managed Care
  • Health plan must provide notices in appropriate languages if services denied, reduced, suspended or terminated
  • Health plans must provide accurate cultural and linguistic appropriate outreach and marketing materials
  • State managed care contracts may have additional requirements
state children s health insurance program schip
State Children’s Health Insurance Program (SCHIP)
  • States must collect primary language information in annual reports, including head of household
  • Make accurate, easily understood, linguistically appropriate information and provide assistance to make informed decisions
omh clas standards
OMH CLAS STANDARDS
  • www.omhrc.gov/clas (12/22/00):
    • First national standards for culturally and linguistically appropriate services (CLAS) in health care
    • All patients should receive fair and effective CLAS and treatment
    • 14 standards: Mandates (Language), Guidelines, & Recommendations

-Themes: Culturally competent care, Language Access Services, and Organizational Supports for Cultural Competence

selected state requirements
Selected State Requirements
  • States have own LEP laws
    • Every state has laws re: language in health care settings
  • California examples
    • State anti-discrimination code

(Calif. Gov’t code §§11135 et seq. & 22 C.C.R. §§ 982100 et seq.)

    • SB 853

(Health & Safety Code §§1367.04 & 1367.07 & Ins. Code §§10133.8 & 10133.9)

    • CA – Kopp Act

(CA Health & Safety Code §1259)

selected state requirements37
Selected State Requirements
  • Equal Access Statutes
    • California - Dymally-Alatorre Bilingual Services Act (CA Govt. Code §7290)
    • District of Columbia – Language Access Act
    • Maryland – Reasonable Steps
selected state requirements38
Selected State Requirements
  • Hospitals
    • MA – Emergency Room Interpreter Law

(Mass. Ann. Laws, Ch.111, §25J(b) & Ch.123, §23A(b)

    • RI – hospital licensure law

(R.I. Gen. Laws §23-17-54)

    • NY – new hospital regulations

(N.Y. C.R.R., Title 10 §§405.7 and 751.9)

how to address cost issues
How to Address Cost Issues
  • Statewide Medicaid/SCHIP Reimbursement
  • HCFA (CMS) “Dear State Medicaid Letter” (8/31/00)
  • Recipients must comply with OCR LEP Guidance
  • Federal matching funding available for reimbursement for Medicaid and SCHIP recipients
state reimbursement models
State Reimbursement Models
  • Only thirteen states and DC seek federal reimbursement:

CT, DC, HI, ID, KS, ME, MN, MT, NH, UT, VA, VT, WA, WY

  • Other states exploring reimbursement
    • TX to start pilot program
    • NC developing credentialing prior to reimbursement
    • CA has Task Force exploring reimbursement options
    • NY had legislation to set up mechanism and funding in March/April 2007 but not yet passed
state reimbursement models41
State Reimbursement Models
  • Four models
    • contract with language service brokers/agencies
      • DC, HI, UT, VA, WA
    • reimburse providers for hiring interpreters
      • ID, ME, MN, VT, CT
    • directly reimburse interpreters
      • MT, NH, WY
    • telephonic language line
      • KS
current state reimbursements 2007
Current State Reimbursements (2007)

This information is current as of 3/07/07

what can we do to ensure access for lep in medicaid
What Can We Do to Ensure Access for LEP in Medicaid?
  • Education – providers, clients/patients
  • Advocacy – increased language assistance services & funding
  • Increase pool of trained and available interpreters – coalition building w/ local CBOs, training/education
  • Enforcement – file complaints with OCR, investigate state law possibilities
food stamps and lep individuals
Food Stamps and LEP Individuals
  • Food Stamp Act of 1977 (FSA)

(Food Stamp Memo, Food Stamp LEP Checklist)

  • FSA Bilingual Regulations

(Food Stamp Memo, Food Stamp LEP Checklist)

  • Food and Nutrition Service (FNS) Title VI Requirements, FNS 113-1

(Extracted Pages, Food Stamp LEP Checklist)

Copyright © 2007 Empire Justice Center

fsa lep provisions
FSA LEP Provisions
  • Each state must use appropriate bilingual personnel and printed material
  • Must have procedures that best serve areas with low-income LEP households
  • Timely, accurate, and fair service to applicant and participant LEP households
bilingual regulations
Bilingual Regulations
  • The State agency and local office must assess the number of LEP households and provide
    • Bilingual program information
    • Bilingual Certification materials
    • Bilingual staff or interpreters
  • Must develop estimates of the number of low-income LEP households, both participating and not participating in the program
  • This assessment should use various sources of information (Census, school data, etc.)
6 month assessment
6- Month Assessment
  • If reliable data is unavailable, the local office must record the number of LEP households that contact the office for a 6-month period
  • Offices contacted by over 100 LEP households in 6 months must provide bilingual staff or interpreters
state agency requirements
State Agency Requirements
  • Must provide bilingual staff or interpreters and translated materials in areas with:
    • Less than 2,000 low-income households if more than 100 are of a single language minority
    • More than 2,000 households if more than 5% are of a single language minority
    • Less than 100 low income households, if a majority are a single-language minority
  • The State agency must combine the figures collected in each certification office to determine the need for bilingual outreach materials in each project area
fair hearings
Fair Hearings
  • When an LEP individual requests a fair hearing, the State office must provide appropriate bilingual staff or interpreters
  • LEP households must be advised of any legal services available that can assist them with representation at the hearing
  • At the hearing, procedures must be verbally explained in the appropriate language of the LEP individual
fns 113 1
FNS 113-1
  • Civil rights obligations of State agencies administering the Food Stamp program are based on:
    • Title VI of the Civil Rights Act of 1964
    • Executive Order 13166 EO
    • DOJ LEP Guidance, and
    • FSA bilingual requirements
  • Whether a State agency is providing meaningful access to LEP applicants and recipients is determined using the DOJ “four factor test.”
title vi compliance
Title VI Compliance
  • Each state agency must:
    • publicize procedures for filing a complaint,
    • insure all offices display the nondiscrimination poster provided by FNS, and
    • insure LEP households have access to information regarding nondiscrimination statutes and policies, complaint procedures, and the rights of participants, within 10 days of the date of a request
  • FNS Sample complaint form, Title VI Complaint Process, FNS 113-1 Appendix E
  • Food Stamp Program LEP Checklist
tanf specific considerations
TANF-specific considerations
  • HHS guidance applies
  • TANF and MOE funds can be used to provide language services in TANF program (see ACF Q & A on use of funds)
tanf specific translation issues
TANF- specific translation issues
  • Examples of documents that should be translated into common languages:
    • Child support assignment agreement
    • Service plans, individual responsibility plans, employability plans
    • Screening and assessment forms
    • Letters with information about appointments and work activity referrals
    • Disability exemption/deferral forms
    • FVO waiver forms
    • Monthly reporting forms for income
    • Tests for employment placement
tanf specific oral interpretation issues
TANF- specific oral interpretation issues
  • Employment and training agencies
  • One Stop Career Centers administering TANF recipient work activities
  • Work activity vendors
  • Shelter providers (Emergency Assistance)
  • Case management providers
  • Support service providers: child care, counseling, etc.
  • Can refer to specific vendors based on LEP, but must offer the same kind and level of services
tanf other issues
TANF: Other issues
  • Screening and assessment:
    • Should assess proficiency with speaking, understanding, reading and writing English
    • Should consider whether LEP is barrier to employment
    • Work activity assessment should consider ESL as a training activity (as ABE or GED would be considered for non-LEP)
  • Flagging language proficiency and interpreter needs in referrals
    • to employment and training
    • to case management
    • to vendors
tanf vendor contracts
TANF: Vendor contracts
  • Agency is responsible for ensuring LEP access to services delegated to vendors
  • Agency contracts with work activity and support service vendors should contain specific provisions on language access services
  • Agency contracts should provide sufficient funds for vendors to comply
  • Agency must monitor vendor compliance
tanf work activity issues
TANF: work activity issues
  • Appropriate work activities (like ESL) must be available
  • Mainstream programs also must be accessible to LEP (bilingual or with interpreters)
  • Job search computers and resources must be available in needed languages
  • Vendors and work activity agencies must use interpreters, have bilingual orientations
tanf work activity issues58
TANF: work activity issues
  • Must make effort to collect employment resources for jobs that non-English speakers can do
  • Federal work participation rate numbers are not a valid excuse to limit access to activities like ESL— the state must provide meaningful training opportunities even if not countable (as with accommodating disabilities)
tanf sanctions
TANF: Sanctions
  • Challenge sanctions resulting from language barriers:
    • Inability to understand instructions
    • Inability to read notice or letter
    • Inaccessible/inappropriate services
    • Lack of interpretation by agency or vendor
    • Lack of appropriate screening
contact information
Contact Information

Michael Mulé, Staff Attorney

Empire Justice Center

Rochester Office

(585) 295-5724

mmule@empirejustice.org

Doreena Wong, Staff Attorney

The National Health Law Program

(310) 204-6010

wong@healthlaw.org

Aimee E. Stowe, Staff Attorney

Georgia Legal Services Program

Gainesville Regional Office

(770) 535-5717

astowe@glsp.org

Michelle Lerner, Staff Attorney

Legal Services of

Northwest Jersey

(973) 285-6911 x5424

mlerner@lsnj.org

Kate Meiss, Supervising Attorney

Neighborhood Legal Services

of Los Angeles County

(818) 291-1778

kmeiss@nls-la.org