Similarly, a public entity cannot rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public and no interpreter is available.
Title IV of Civil Rights Act
Individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English might be eligible to receive language assistance with respect to particular services, benefits, or encounters.
Title VI and U.S. Department of Health and Human Services (HHS) regulations require recipients of federal financial assistance from HHS to take reasonable steps to provide meaningful access to limited-English-proficiency (LEP) persons. Recipients of HHS assistance might include hospitals, nursing homes, home health agencies, managed-care organizations, universities and other entities with health or social service research programs, and state, county, and local health agencies. It might also include Medicaid agencies, state, county, and local welfare agencies, programs for families, youth, and children, Head Start programs, public and private contractors, subcontractors, and vendors, and physicians and other providers who receive financial assistance from HHS.
HHS has indicated that the obligation to provide meaningful access is fact-dependent and starts with an individualized assessment that balances four factors:
- Number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee;
- Frequency with which LEP individuals come into contact with the program;
- Nature and importance of the program, activity or service provided by the recipient to its beneficiaries; and
- Resources available to the grantee/recipient and the costs of interpretation/translation services.
HHS notes that there is no “one size fits all” solution for compliance with respect to LEP persons, and what constitutes “reasonable steps” for large providers might not be reasonable where small providers are concerned.
Use of family members or friends. HHS has indicated that some LEP persons feel more comfortable when a trusted family member or friend acts as an interpreter. When an LEP person attempts to access the services of a recipient of federal financial assistance, who upon application of the four factors is required to provide an interpreter, the recipient should make the LEP person aware that he or she has the option of having the recipient provide an interpreter for them without charge, or of using their own interpreter. Recipients also should consider special circumstances that might affect whether a family member or friend should serve as an interpreter, such as whether the situation is an emergency, and whether there are concerns over competency, confidentiality, privacy, or conflict of interest. Recipients cannot require LEP persons to use family members or friends as interpreters.
Vital documents. Recipients can use the four factors to determine if specific documents or portions of documents should be translated into the language of frequently encountered LEP groups eligible to be served or likely to be affected by the recipient’s program. Recipients should assess whether specific documents or portions of documents are “vital” to the program, information, encounter, or service involved, and the consequences to the LEP person if the information in question is not provided accurately or in a timely manner.
Compliance plans. HHS provides recipients with a “safe harbor” that, if undertaken, will be considered strong evidence that the recipient has satisfied its written translation obligations. If a recipient determines that it should provide language assistance services, a recipient might develop an implementation plan to address the identified needs of the LEP populations it serves. Recipients have considerable flexibility in developing this plan, but should: 1) identify LEP individuals who need language assistance; 2) identify language assistance measures (i.e. how staff can obtain services or respond to LEP callers); 3) train staff; 4) provide notice to LEP persons (e.g. posting signs); and 5) monitor and update the LEP plan.