Limited English ProficiencyPolicy…Plan…Practice

Spring Training Conference May 27th, 2011

Presentation by:

David C. Youngblood, Director

U.S. Dept. of Housing and Urban Development

Office of Fair Housing and Equal Opportunity

Greensboro Field Office, Knoxville Field Office (Acting)

North Carolina Community Development Association

Limited English ProficiencyMost individuals living in the U.S. read, write, speak and understand English. There are many, however, for whom English is NOT their primary language.Think about how you would feel if you lived in a place where your ability to obtain housing, financial assistance, assistance from law enforcement or other important life benefits were cut off only because you could not speak, read or understand the language.

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Think about it…هم جدا هذا السبب في توفير الوصول إلى معنى م .و

~Arabic

这就是为什么提供访问意义如此重要。

~Chinese

Es por ello proporcionando acceso de significado es tan importante.

~Spanish

This is why providing “meaningful access” is so important.

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OverviewPOLICY – Applicable Laws

Who, What and How

PLAN – 4 Factor Analysis & Safe Harbor

PRACTICE – Monitoring and Updating

Implications for PIH

Implications for CPD

Affirmatively Furthering Fair Housing (AFFH)

Q & A

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Part 1

POLICY

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Section 601 of Title VI of the Civil Rights Act of 1964 (LEP Statutory Authority)

“No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participationin, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

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Law v. Nichols (1974)The U.S. Supreme Court stated that one type of national origin discrimination is discrimination based on a person’s inability to speak, read, write, or understand English.

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Executive Order 13166 (Issued in the Federal Register 65 FR 50121 on August 16, 2000)

Mandated improved access to federally assisted programs and activities for individuals who, as a result of national origin, are limited in their English proficiency.

Directed Federal agencies to publish guidance on how their recipients can provide access to LEP persons.

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U.S. Department of JusticeSupported implementation of E.O

13166 and issued guidance regarding “Enforcement of Title VI of the Civil rights Act of 1964, National Origin Discrimination Against Persons with Limited English Proficiency.” (August 16,2000)

USDOJ adopts final guidance, Federal Register at 65 FR 41455, June 18, 2002.

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WHO Does LEP Apply To?

All Federal Agencies (including HUD).

Recipients of Federal Financial Assistance (FFA).

FFA is broad and includes grants, training, use of equipment, donations of surplus property and more.

Nearly all State and Local governments.

Public Housing Authorities (PHAs).

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WHO Does LEP Apply To? (cont.)

Assisted Housing providers

Fair Housing Initiative Program (FHIP)

Fair Housing Assistance Program (FHAP)

Other entities receiving funds directly, or indirectly, from HUD (i.e. sub-recipients, state grant recipients, etc.).

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WHAT Does This Mean?

Entities that are recipients of Federal Financial Assistance must develop a plan for persons of different national origins that cannot speak or read English to ensure that they have meaningful access to all portions of their program or activity, not just those portions that receive HUD funds (e.g. non-Federally funded programs).

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Part 2

PLAN

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HOW Do I Become Compliant?

Federally Assisted Recipients…

Are required to make reasonable efforts to provide language assistance to ensure meaningful access for LEP persons to the recipient’s programs and activities.

To do this the recipient should:

(1) Conduct a four-factor analysis;

(2) Develop a written Language Assistance Plan (LAP) (optional); and

(3) Provide appropriate language assistance.

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Four Factor Analysis(Federal Register/Vol. 72, No. 13/January 22, 2007, p. 2748)

Federally Assisted Recipients are to conduct a four (4) factor analysis that will assist in determining the reasonableness of language assistance given based on:

1. Number or proportion of LEP persons in the population to be served.

2. Frequency with which LEP persons come into contact with the program activity or service.

3. Importance of the service, information, program, and/or activity.

4. Resources, financial and human, available to the recipient.

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Developing the Plan…Obtain demographic data about

applicants, tenants, and participants through census information, survey or other methods.

Utilize local advocacy groups and organizations.

Find services that provide interpretation and translation.

Make organizational changes and assign responsibilities.

Seek staff involvement.16

Developing the Plan (Cont.)

Written policy with clear goals.

Establish performance and accountability measures for management and staff.

Provide opportunity for input in the planning and revision stages.

Document EVERYTHING.

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Language Assistance Plan

Written plan is not required, but is strong evidence of compliance.

Identify LEP persons who need assistance (after four factor analysis).

Adopt language assistance measures.

Training of staff, especially those who have frequent contact with the public.

Providing notice to LEP persons.

Monitoring & updating the Language Assistance Plan (LAP).

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Translation Safe HarborWhat should be translated?

Vital and generic widely used writtenmaterials (intake forms, complaint/ hearing forms,

eviction notices, decrease in benefits, leases etc.).

In languages of targeted LEP groups.

If a recipient provides written translations under these circumstances, it shall be considered strong evidence of compliance with its obligations.

Failure to provide written translations DOES NOT necessarily mean there is

noncompliance.19

Safe Harbor (cont.)It shall be strong evidence of

compliance when recipient provides:

Written translations in each language that constitutes 5% or 1000 persons, whichever is less, of the population of eligible persons to be served or likely to be encountered; or

If there are fewer than 50 persons in a language group that reaches the 5% trigger, then recipient provides written notice of their right to receive competent oral interpretationof the written materials, free of cost.

There is NO safe harbor for oral interpretation. Reasonable availability is expected based on the four factor analysis.

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LEP/LAP ConsiderationsCompetence of interpreter or

translation services (certifications, age, relation to LEP person, conflicts).

Training of staff/Bilingual staff.

Posting signs in common areas.

Advertising language services in outreach documents.

Partnering with LEP grassroots, faith-based organizations, and schools.

Using telephone voicemail menu.

Providing notice on Non-English radio and TV stations.

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Part 3

PRACTICE

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Monitoring and UpdatingRecipients should have a process for:

Determining whether new documents, changes in programs, services and activities need to be made accessible to LEP persons;

Determining whether changes in demographics, services or needs require annual reevaluation of LAP; and

Seeking feedback from the community the plan serves.

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HUD’s EvaluationReview will include, but not be

limited to, recipient’s application of the four factor analysis.

Will look at whether recipient took reasonable steps to ensure meaningful access to LEP persons.

The extent to which recipient followed LEP guidance.

Recipient’s demonstrated efforts to serve LEP persons.

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NoncomplianceHUD investigation under Title VI.

HUD issuance of a Letter of Findings.

HUD Attempts informal voluntary compliance discussions.

HUD Technical assistance provided.

Administrative Hearing.

Refer to USDOJ for litigation.

Termination of Federal assistance.25

Community Development Ensure recipients provide LEP

language assistance when:

Translating its Consolidated Plan.

Assessing how LEP needs will be met in their jurisdiction (HOPWA, HOME, etc.).

Soliciting citizen participation and consultation as required by 24 CFR 91.

Offering services or promoting programs.

Disseminating information to individuals and organizations in the LEP community.

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Public HousingProvide LEP language assistance by:

Advertising and affirmatively market availability of units to LEPs.

Communicating important information to the LEP community (ex. opening waiting lists, PSAs on radio and TV).

Conducting resident informational meetings (ex. housing rights, relocation, demolition) with a specific LEP procedures in place.

Translating documents and notices.

Offering interpretation services at no cost.

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Affirmatively Furthering Fair HousingAFFH Certification:

Nearly all HUD grantees certify that they will affirmatively further fair housing.

The Analysis of Impediments to fair housing choice, required by 24 CFR Part 91, should contain useful information about prominent LEP groups in the area, since National Origin is one of the protected classes that should be analyzed.

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Affirmative MarketingRecipients of HUD funds are

required by existing regulations to outreach, educate, and affirmatively market the availability of housing and housing-related services to eligible persons in the geographic area that are least likely to apply for and/or receive benefits of a program without such activities.

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Affirmative Marketing (cont.)In many cases, those least likely

to apply for a benefit are LEP persons.

Public meetings (advertise and accommodate).

Post notices of written materials available in their language.

Offer interpretation and translation services at no cost.

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ReasonablenessHUD expects grantees to extend reasonable

efforts to afford persons with limited English proficiency meaningful access to its programs and services.

HUD has issued guidance, not regulations in this area. This means that there is no list of specific things that must always be done.

Bottom Line: In looking at the totality of the efforts taken in this area, would a reasonable person believe that the grantee is seriously attempting to fulfill its obligations under Title VI.

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Q & A Question: Does a person’s citizenship and

immigration status determine the applicability of the Title VI LEP guidelines?

Answer: NO. United States citizenship does not determine whether a person is LEP. It is possible for a person who is a U.S. citizen to be LEP. It is also possible for a person who is not a U.S. citizen to be fluent in the English Language.

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Q & A Friends or family members of LEP persons

should be at the top of your list as a source for interpretive services?

Answer: NO. Unless an LEP person insists, it is suggested that recipients not rely on friends or family members or other informal interpreters because they may not competent to provide quality and accurate interpretations. Also, confidentiality, privacy or conflict of interest issues may arise.

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Q & ASafe Harbor means that if a

recipient provides oral translation assistance, that such an action would be considered strong evidence of compliance?

Answer: NO. Safe Harbor provisions apply only to translation of written documents only.

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Q & A A person who does not speak English as

their primary language, and has a limited ability to read, write, speak or understand English because of their National Origin, is considered limited English proficient?

Answer: Yes. Because of those limitations, an LEP person is entitled to language assistance with respect to a particular type of service, benefit or encounter.

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HELP For assistance and information regarding LEP

obligations, resources, training materials and more, go to: http://www.hud.gov/offices/fheo/promotingfh/lep.cfm

HUD Greensboro Field Office

Fair Housing and Equal Opportunity

336-547-4000

POLICY…

PLAN…

PRACTICE…36