Comments to Department of Justice Regarding
Guidance on Limited English
Proficiency
Asian & Pacific Islander American Health Forum
February 19, 2002
Merrily Friedlander
Chief, Coordination and Review Section
Civil Rights Division
Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530
Via fax: 202-307-0595
Via email:
Christine.Stoneman@usdoj.gov,
cc: Sebastian.Aloot@usdoj.gov
Subject: Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons
Dear Ms. Friedlander:
In response to your call for comments, we respectfully submit our comments on the Department of Justice’s (DOJ) Policy Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons.
The Asian and Pacific Islander American Health Forum (APIAHF) is a national advocacy organization dedicated to promoting policy, programs, and research efforts to improve the health and well being of Asian American and Pacific Islander communities. The Asian & Pacific Islander Institute on Domestic Violence is a part of APIAHF. The Institute’s Resource Center and technical assistance services emphasize models of prevention, intervention, research and policy advocacy in Asian American and Pacific Islander (AAPI) communities.
APIAHF does not see the provision of interpretation and translation as a burden or added cost, but as an integral part of ensuring equal access for all communities. We look forward to working with you in the implementation of this guidance especially as it relates to providing critical services and meaningful access to victims of domestic violence.
We wish to thank DOJ for its leadership in this matter. We believe that the DOJ’s guidance will be a useful tool to educate court, law enforcement and corrections officials and service providers on their obligation to provide meaningful access to people with limited English proficiency. We strongly support your commitment to their civil rights.
Sincerely,
Tessie Guillermo
Executive Director
Comments from APIAHF and the Asian & Pacific Islander Institute on Domestic Violence
When victims of domestic violence with limited English proficiency (LEP) come into contact and interact with law enforcement, the Criminal Justice System, and domestic violence service providers, their LEP status can severely compromise their safety. Interventions and services denied, delayed, or provided under adverse circumstances can even have life-threatening consequences for victims of domestic violence. There are all too many examples of the increased endangerment LEP battered women face. While the provision of language services will not solve the underlying causes of domestic violence, it eases the burden and trauma of the situation, prevents further injuries and fatalities, and reduces the likelihood of re-victimization.
The following case vignettes demonstrate the above points.
A South Asian LEP battered woman, abused by her husband and four members of his family (all residing in the same home) obtains restraining orders against all five of them. Her 4-year old daughter is constantly sick in the shelter where they are staying. Instead of proper medical attention, the staff suggests that the child stay with the father and his family until the mother leaves the shelter. The father seizes the opportunity to seek sole custody of the child, court translation is provided by a member of his family, and full custody is granted to the father. So, the little girl loses her mother and goes to live in a home with five abusers. The shelter director asserts that she received adequate services because "luckily the cook spoke Indian".
During a domestic violence incident, a Cambodian (LEP) victim tried to defend herself. Her batterer (who spoke English) had scratches on his face, so he claimed to be the victim when the police showed up and she was arrested. Her court-appointed interpreter was not adequately trained, and the victim was convicted of spousal battery. She is not a U.S. citizen and is now vulnerable to deportation because of that conviction.
In the early hours of May 9, 2000, John beat his wife, Mary (not their real names), in the family apartment in Chinatown. John dragged Mary from their bed, threw her down and banged her head against the floor, causing bruises and contusions on her arm and head. A photograph (taken at some point after the incident) of the injuries to her arm showed a large bruise spanning her upper arm, contusions on her elbow and bruising in the wrist area. The couple’s 18-month-old son watched his father beat his mother. Although Mary managed to dial 911, the officers who arrived at the scene were only able to speak with John who is fluent in English. He was not arrested or removed from the home nor were Mary and her baby offered assistance in going to a domestic violence shelter because, despite the fact that the police precinct responded to calls in Chinatown, no one on duty spoke Cantonese (Mary's native language) or Mandarin (which Mary also spoke). Luckily, Mary did manage to go to the precinct the following day, at which point an interpreter was found, and she and her baby were able to escape to a domestic violence shelter. Although John was subsequently arrested, the case was mishandled in a number of ways and eventually dropped. This mishandling is a long and complicated story, but can be traced to the failure of the police officers to speak to the victim and arrest the batterer at the time of the incident.
GENERAL
We applaud the DOJ’s policy guidance for wisely:
I. Introduction
We support the DOJ’s citation of statutes, regulations and case law to assert the obligations that recipients of federal financial assistance have to provide meaningful access to those with Limited English Proficiency. Civil rights for the LEP population exist independently of any guidance or Executive Order. But thanks to the guidance, recipients of federal funds (hereafter referred to as recipients) become aware of their obligations and learn how they can comply with Title VI. We applaud DOJ for encouraging recipients to go beyond mere compliance to create model programs and the Department’s intention to provide technical assistance.
With regards to the obligations of recipients, the guidance states: "In certain circumstances, failing to ensure that LEP persons can effectively participate in or benefit from federally assisted programs and activities or imposing additional burdens on LEP persons is national origin discrimination." To provide a clearer understanding of the obligations of recipients, we suggest replacing this sentence with text from the LEP guidance published by the Department of Health and Human Services, (65 FR 52762, August 30, 2000):
"A recipient/covered entity whose policies, practices or procedures exclude, limit, or have the effect of excluding or limiting, the participation of any LEP person in a federally-assisted program on the basis of national origin may be engaged in discrimination in violation of Title VI."
II. How Recipients Should Decide What Language Services They Should Provide
A. The Four-Factor Analysis
The guidance proposes the following four considerations to help recipients decide what language services they should be ready to provide.
(1) The number or proportion of LEP persons served or encountered in the eligible service population.
(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.
(4) The resources available to the recipient.
These four factors are reasonable and flexible enough to apply to a variety of situations.
We urge DOJ to clarify that the Four Factor Analysis is intended to determine the level of services recipients are obligated to provide to each LEP individual, not whether language services should be provided at all. Recipients are to use these factors in determining which of the various language services would be most appropriate. However, the denial of services to even one individual due to his or her LEP status is a violation of Title VI.
It should be further stated that the balance of these four factors will be different for each recipient and even for each service they provide. For example, in the case of domestic violence, we would suggest that the third factor be weighted more than the others. This is especially warranted when the nature of the service/intervention is to prevent bodily harm or death. The number of LEP in the area may be low, contact may be infrequent and unpredictable, and resources scarce; nevertheless, the safety of battered women and their children is paramount.
With regard to frequency of contact, it is also important to consider time of contact. For example, if it is determined that "meaningful access" means that services are provided at midnight, the recipient must plan for competent oral interpretation services to be available then.
B. Selecting Language Assistance Services
(1) Oral Language Services
The guidance explains several ways to provide oral language services and outlines what it means to be a competent interpreter.
Hiring Bilingual Staff
We support the emphasis the guidance places on having interpreters trained and competent in the skill of interpreting. We also support the recognition that hiring bilingual staff facilitates participation by LEP persons. We suggest drawing a clearer distinction between having bilingual staff and having or arranging to have interpreters. Being bilingual is not to be equated with being an interpreter. These separate skills are associated with separate roles. In domestic violence cases, a bilingual staff person acts as an advocate for a battered woman. Expecting her/him to provide oral interpretation in court, for example, is not appropriate because it presumes legal interpretation skills. Furthermore, the expectation of verbatim interpretation can conflict with the role of advocate to provide assistance on behalf of the victim. In the case of bilingual staff expected to provide interpretation, employers should explicitly provide them with training to be interpreters.
Using Telephone Interpreter Lines
The inadequacy of this method should be more strongly stated. "Recipient/covered entities should be aware that such interpreters are not specifically trained for legal, medical or social service interpretation and therefore may not demonstrate competence as interpreters in these situations."
Competence of Interpreters
The guidance states that it is the recipient’s job to "ensure competency of the language service provider, no matter which of the above options they use." This is important to state here since many recipients assume that simply speaking the language of the consumer is enough. The guidance also states "competency requires more than self-identification as bilingual." This reaffirms that assessing competence is the recipient’s responsibility.
The preference for use of certified interpreters should be made more explicit. The guidance currently states, "Competency to interpret does not always mean formal certification as an interpreter. However, certification is helpful." We suggest that the DOJ clearly direct recipients to use certified interpreters in contexts where technical knowledge and vocabulary are critical, such as in court proceedings, or giving informed consent in medical settings, and situations where individual rights depend on precise, complete and accurate translations.
Incompetent interpretation results often in the re-victimization of the victim. For example, a mother lost custody of her child, because the interpreter, unfamiliar with child custody issues, did not draw the distinction between legal and physical custody, and she unwittingly, relinquished both. Untrained interpreters do not consistently provide strict oral translation: they may interject their own values; offer their own explanation when an LEP individual asks for a clarification; proffer a solution to "help" reach a decision; and in egregious instances, withhold or distort information.
Inappropriate Use of Family Members, Friends, Other Inmates, or Detainees
The guidance currently states: "As a general rule, when language services are required, recipients should provide competent interpreter services free of cost to the LEP person. LEP persons should be advised that they may choose either to secure the assistance of an interpreter of their own choosing, at their own expense, or a competent interpreter provided by the recipient."
LEP individuals should not be encouraged or expected to use family or friends as interpreters. The use of family members, friends, other inmates or detainees is problematic for several reasons. Interpretation by untrained persons can severely compromise the accuracy, confidentiality, safety and rights of the LEP person. It can also compromise the interpreter’s safety because they may receive threats for exposing an abuser or because they now have information that embarrasses the abuser. Family members may be protecting themselves and/or an abuser within the family. For example, a depressed battered woman’s husband interpreted for her psychiatrist giving no information about the abuse. She was therefore misdiagnosed and prescribed anti-psychotic medication. She now has Tardive Dyskinesia. The reliance on friends and family members to interpret can lead to additional barriers in communication. Victims of domestic violence or sexual assault may be reluctant to disclose information to a friend or family member. The use of minors to interpret should be strongly discouraged and accepted only under the most extreme circumstances. For example, a minor who called 911 and then interpreted for his LEP mother; was later physically abused by his father and blamed for ‘causing’ his arrest.
Using informal interpreters, such as "the shelter cook who speaks Indian" also allows the agency administration to think they are meeting their obligation to provide interpretation for LEP persons. To say nothing of the standard of care the cook may provide, or that staff ignorance about "Indian" as a language remains unchallenged.
To increase consistency among federal programs and agencies, and to clarify further the dangers of using friends and family to serve as interpreters, we suggest replacing this section of the guidance with text from the LEP guidance published by the Department of Health and Human Services, (65 FR 52762):
A recipient/covered entity may expose itself to liability under Title VI if it requires, suggests, or encourages an LEP person to use friends, minor children, or family members as interpreters, as this could compromise the effectiveness of the service. Use of such persons could result in a breach of confidentiality or reluctance on the part of individuals to reveal personal information critical to their situations. In addition, family and friends usually are not competent to act as interpreters, since they are often insufficiently proficient in both languages, unskilled in interpretation, and unfamiliar with specialized terminology.
If after a recipient/covered entity informs an LEP person of the right to free interpreter services, the person declines such services and requests the use of a family member or friend, the recipient/ covered entity may use the family member or friend, if the use of such a person would not compromise the effectiveness of services or violate the LEP person's confidentiality. The recipient/covered entity should document the offer and declination in the LEP person's file. Even if an LEP person elects to use a family member or friend, the recipient/ covered entity should suggest that a trained interpreter sit in on the encounter to ensure accurate interpretation.
The guidance does recognize that "there may be situations where a recipient’s own interests justify the provision of an interpreter regardless of whether the LEP individual also provides his or her own interpreter."
(2) Translation of Written Materials
This section affirms the responsibility to provide written translations of important information and provides guidance on what are considered vital documents. The guidance also describes safe harbors, which are actions that recipients can take in response to specific conditions in order to be in compliance with Title VI. The guidance emphasizes that safe harbors only apply to translation of written documents. It should further explain, "The denial of oral interpretation services to even one person due to his or her LEP status can be a violation of Title VI."
We commend DOJ for stating that "well-substantiated claims of lack of resources to translate all vital documents into dozens of languages do not necessarily relieve the recipient of the obligation to translate those languages, and to set benchmarks for continued translations over time." We understand that DOJ reviews the "totality of the circumstances" to determine the recipient’s level of obligation.
Recipients providing translated materials should not presume literacy or functional literacy in LEP individuals; and should offer oral interpretation when translated written materials cannot be read or utilized by the LEP individual. As with oral interpretation, care should be taken that informal translators are not used to describe the contents of translated materials. For example, an LEP senior citizen could not respond to notices to appear in court as a witness, and her batterer was repeatedly released. When she was finally provided with an interpreter her abuser was convicted of felony assault.
C. Elements of Effective Written Policy on Language Assistance for LEP Persons (LEP Policy)
We agree that "the key to providing meaningful access is accurate and effective communication between the DOJ recipient and the LEP individual." Toward that end, we also concur that policies and procedures for providing meaningful access to LEP individuals should be written according to the five elements listed in this section. The development of comprehensive written policies encourages providers to be proactive and systematic, and discourages them from adopting ad hoc positions when addressing language access.
Training of staff is indeed a vital element in ensuring awareness and compliance with language access policies. However, the guidance should state that all employees need this training, not just those who have direct contact with interpreters and/or LEP individuals.
Monitoring and updating the LEP policy is a critical element of the policy. We commend DOJ for stating that recipients should seek feedback from the community when reviewing their LEP policies. Given how quickly shifts can occur in services provided, demographics, and staff turnover, we feel that evaluating the language policy every three years, as currently suggested in the guidance, is insufficient. We recommend this be changed to: "recipients should evaluate their entire language policy at least annually."
Thank you for accepting these comments and for your continued leadership on this issue.
