Overview of Legal Framework for Language Access

Standards of Practice for Legal Services for Victims of

Domestic Violence who are LEP and/or Deaf and/or Hard of

HearingDeeana Jang and Robin Runge

Learning Objectives

• Be able to identify, understand and incorporate the laws and policies regarding language access into your legal services

Sources of Guidance

• Title VI of the Civil Rights Act• Americans with Disabilities Act• State Language Access Laws and State

Disability-Rights Laws• Legal Services Corporation Guidance (Issues

12/04)• ABA Standing Committee on Legal Aid &

Indigent Defendants Standards of Practice for the Provision of Civil Legal Aid (Revised August 2006)

• ABA Model Rules of Ethics

Federal Requirements for Language Access

• Title VI of the Civil Rights Act– National origin discrimination includes

language discrimination– Executive Order of 2000 – Department of Justice LEP Guidance of 2002– Agency specific guidance and policy

• DOJ• HHS• HUD

Title VI of Civil Rights Act of 1964

• Prohibits federal funding recipients from discrimination based upon race, color or national origin

• National origin discrimination includes discrimination based on language

ALL AGENCIES THAT RECEIVE FEDERAL FUNDING ARE RESPONSIBLE FOR COMPLIANCE

Title VI Requirements for LEP Language Access

• Under Title VI of the federal Civil Rights Act and federal agency regulations implementing Title VI, recipients of federal financial assistance have a responsibility to take reasonable steps to provide Limited English proficient (LEP) individuals with meaningful access their programs and activities.

KEYS to TITLE VI Compliance

• Assessment- frequency of languages likely to be encountered– Importance of the service– resources

• Development of Comprehensive Written Policy on Language Access– Oral interpretation and written materials– Notice about free language access

• Training of Staff– LEP policies and working with interpreters

• Vigilant Monitoring/ oversight of language assistance program

Executive Order 13166

• All recipients of federal funding (including contract agencies) must provide language access to persons with Limited English Proficiency (“LEP”)

• Must ensure MEANINGFUL ACCESS to services applicants and beneficiaries.– No difference in services– No unreasonable delay in services

Policy Guidance 65 Fed. Ref. 50123

• The Department of Justice tasked with developing guidance for agencies

“Enforcement of Title VI of the Civil Rights Act of 1964--National Origin Discrimination Against Persons with Limited English Proficiency: Policy Guidance”

– Spells out concrete requirements– Offers tips and guidance to agencies

Policy Guidance

• Must provide access to LEP individuals• Agencies or entities conduct the following

analysis to determine what is compliance:– Number or proportion of LEP individuals served

or encountered in the eligible service population– Frequency of contacts– The nature and importance of the program,

activity or services– Resources available

What is the Number or Proportion of LEP Individuals in Your Service

Area?• Must include language minority populations that are eligible

for programs or activities but may be underserved because of existing  language barriers.

• How determine number of LEP individuals? – Census data, data from school systems and from community 

organizations, and data from state and local governments.– Community  agencies, school systems, religious organizations, legal

aid entities,  and others can often assist in identifying populations for whom  outreach is needed and who would benefit from the recipients' programs  and activities were language services provided.

What is the Frequency of Contact with LEP Persons within your Agency?

• LEP persons contacting agency on a daily basis means higher responsibilities

• But even recipients  that serve LEP persons on an unpredictable or infrequent basis should have a plan to provide access

• EX: being prepared to use telephonic interpretation services to obtain  immediate interpreter services.

Recipients should consider whether appropriate outreach to LEP  persons could increase the frequency of contact with LEP language  groups.

What is the Nature and Importance of the Program,

Activity, or Service Provided by your Program?

Will the denial or delay of  access to services or information have serious or even life- threatening implications for the LEP individual?

ADA & Section 504

• Under the ADA and the associated regulations, public accommodations and state entities are required to provide ASL interpreters, and other auxiliary aids, to ensure effective communication with deaf and hard of hearing individuals. Deference must be given to the deaf or hard of hearing individual’s choice of what auxiliary aid she or he needs. – 28 C.F.R. S28 C.F.R. S35.160 (b)(2) (NAD

Law Center, 2002).

Federal Law Requires Accessibility to Services for Persons with

Disabilities• Under the Americans with Disabilities Act legal

aid and other service providers must be accessible to people with disabilities.

• These laws prohibit discrimination on the basis of mental or physical disability in places of public accommodation

• Failure to provide accessible facilities and services to disabled battered women may constitute a form of discrimination on the basis of disability because they do not have access to the same services and benefits.

Legal Services Corporation Guidance

• Provide equal services to all clients regardless of language ability

• Develop capacity to provide services in other languages

• Establish new minimum standards for serving LEP clients

• Devise language service protocols• Train staff• Provide notice of policy• Monitor compliance

ABA/SCLAID Standards for the Provision of Civil Legal Aid

Standard 4.6:• Communication in the primary languages of

persons served• Burden is on the provider, not the client to

provide language access• Ties in ethical requirements of attorneys to

ensure effective client communication• Echoes themes of LSC Guidance of

comprehensive plan, capacity and protocols, and training and evaluation.

ABA/SCLAID Standards for the Provision of Civil Legal Aid

Standard 4.3: Use of Interpreters

• Protecting client confidences is essential when working with an interpreter

• Legal services provider should assure that interpreters are aware of the responsibility to protect client communication

ABA Model Rules of Ethics

Rule 1.4 – Client Communication• Attorney must inform, consult, and advise the

client• Must obtain facts from client accurately• Must dispense advise effectively• Attorney has the burden to ensure

communication • Attorney has the obligation to understand what

their client is saying and to ensure that their client understand what the attorney is saying

ABA Model Rules of Ethics

Rule 5.3: Non-Lawyer Assistants

• Lawyer has a duty to ensure that non-attorneys comply with rules

• Interpreters are included in confidentiality if he/she is staff or contractor of attorney

• Consider need for policy or written pledge by interpreter promising not to render legal advice

ABA Model Rules of Ethics

Rule 5.3: Non-Lawyer Assistants

Interpreter as agent of attorney

• Privilege can be protected with interpreter present

• Need to limit interpreter to agent and confident role

Danger Zone: Informal Interpreters – what if the interpreter is a volunteer?

ABA Model Rules of EthicsConfidentiality and Interpreters

Rule 1.6: Confidentiality

• Interpreter ought to be bound by– Agreement or contract– By interpreter ethical standards

Informal interpreters raise issues because they are not under the attorneys control

Resources

• http://www.usdoj.gov/crt/ada/publicat.htm for information about Title III of the Americans with Disabilities Act

• http://www.usdoj.gov/crt/cor/ for information about Title VI and implementation by federally funded organizations.

• www.lep.gov for information about obligations to provide services to LEP individuals.

Federal Interagency LEP Work Group

• Know Your Rights brochure: www.LEP.gov/LEP_beneficiary_brochure.pdf (English, Spanish, Korean, Russian, Vietnamese, Russian, Cambodian, Arabic, Haitian-Creole, and Hmong)

• LEP Video: “Breaking Down the Language Barrier: Translating LEP Policy into Practice” (English, Spanish and Vietnamese; Chinese and Korean subtitles)

HHS Resources

• OCR/HHS: www.hhs.gov/ocr

• Trafficking Fact Sheets (Spanish, Polish, Russian and Chinese), http://www.acf.hhs.gov/trafficking/about/factsheets.html

• www.healthfinder.gov (links to health information in English, Spanish, and Asian and Pacific Islander languages)

• Providing Oral Linguistic Services: A Guide for Managed Care Plans, Centers for Medicare and Medicaid Services, http://www.cms.hhs.gov/healthplans/quality/project03.asp?

DOJ Resources• U.S. Department of Justice, Civil Rights Division,

http://www.usdoj.gov/crt/cor/13166.htm

• “LEP Resource Document: Tips and Tools from the Field,” http://www.lep.gov/lepconf_linkspage.htm

• Letter to State court administrators, http://www.lep.gov/courtsletter_generic.htm

• Language Assistance Self-Assessment and Planning Tool, http://www.lep.gov/selfassesstool.htm