I recently saw a woman at the cash register, turn to her young daughter to tell her what the clerk had said. That may have been a problem for family dynamics, but probably was not a critical problem. I also recently heard someone describe a trip to the emergency room, where she overheard a doctor having a child of about 10 interpret as the doctor described the mother’s sexually transmitted disease. Aside from the inappropriateness of this situation, do you think there is a strong likelihood that the child would be a competent interpreter? So, even without any laws requiring interpretation, other considerations, such as malpractice, should prompt professionals to ensure language access. The legal system, in particular, needs to ensure adequate language access, or serious inequities may result.
For people who do not speak English very well, it is hard to access programs and services that they otherwise would be able to benefit from. Because lack of proficiency in English usually is connected to national origin, language access to programs and services is considered part of civil rights laws in the United States. The major civil rights law that deals with the obligation to provide language access is Title VI of the Civil Rights Act of 1964. Title VI has been the law since, well, 1964. However, it has been getting a lot more attention recently. [Read text] Before 2000, there were some Title VI regulations, and some cases, but the importance of this law expanded significantly when President Clinton signed an Executive Order in 2000, and with the stroke of a pen changed things dramatically for immigrants. Executive Orders can be rescinded, but President Bush did NOT rescind Executive Order 13166. The term “LEP (limited English proficiency)” is used in the regulations for Title VI. Some people prefer the term “language access” to describe this area. However, because of the use of “LEP” in the regulations, it is sometimes necessary to use this term. Iowa also has a statute dealing with interpretation and translation, chapter 622A, but it applies only to courts and administrative agency hearings, whereas Title VI applies much more broadly.
The website is intended to be a “one-stop shopping” site for LEP matters. --It has the text of Title VI, the Executive Order, and links to the regulations for all federal agencies that give funds to recipients. --It has resources for recipients, such as links to census data (for information about languages spoken in each state), and “I Speak” sheets, which help identify what language someone speaks. --Each agency can post material that pertains to its recipients. For example, the HHS resources includes a link to a 246 page document designed to help health care organizations and practitioners meet LEP requirements. (“A Patient-Centered Guide to Implementing Language Access Services in Health Care Organizations.”) --For language access issues concerning the courts, Deputy State Court Administrator John Goerdt has handled most of the work, and is a tremendous resource. He has authored a “Bench Card” for judges to use when working with interpreters in the courtroom.
These are examples of covered entities. Each agency lists “who is covered” in the guidance to recipients. Again, the LEP obligation follows the money. If a recipient subcontracts for services, the subcontractor must follow LEP requirements as well. The HHS guidance illustrates this clearly. Sometimes the guidance for recipients will exclude certain entities. For example, HHS guidance excludes physicians whose only involvement is receipt of Medicare Part B payments. HUD guidance excludes landlords whose only involvement is receipt of voucher choice payments from a Housing Authority.
Basically, if someone says he or she wants an interpreter, he or she should have one, even if the person speaks some English. The HUD regulations said it well, I thought.
In some cases, the application of the 4 factors will require that the recipient hire staff who are bi-lingual. In other cases, the recipient may only need to have identified community resources they will use when needed. The least any recipient should be able to do is subscribe to one of the telephone interpretation services, which cost nothing unless you use them. One is the AT&T language line. (ILA uses Pacific Interpreters.)
DOJ guidance: “… [W]hen oral language services are necessary, recipients should generally offer competent interpreter services free of cost to the LEP person….[T]his is particularly true in a courtroom, administrative hearing [and] pre- and post-trial proceedings….” Recently, the US Attorney General’s office sent a strongly worded letter on this topic to the courts of each state. The letter is included in your materials. This letter will likely change how things are done in Iowa. Under a state statute, courts have sometimes billed one of the parties for the interpreter. Iowa Legal Aid staff have been alert to the potential challenge to this practice, but have not had an appropriate case where our client was billed.
Payment, and provision of services beyond the court room: Under the recent letter from the US Attorney, not only is the interpreter cost not to be borne by a party, but other court services are also to be made accessible AND provided for free. Please look at page 3, items 3 and 4. [Go over these items.] Has anyone ever seen these services provided? So, this letter may change things significantly. Mediator competence and availability: The Iowa Judicial branch has a roster of court interpreters. Until recently, there was no way to look at the list and know if the interpreter had passed a competency test. The federal courts have had a competency test for some time now, but there were only a few people in Iowa who had passed it. The test has a very, very low pass rate. Another test, with a higher pass rate, is used by a consortium of states. Iowa joined this group, which deals with language access issues. Iowa is now encouraging roster interpreters to take the competency test. The roster of Iowa mediators on the judicial website now designates which ones have passed the competency test. There are not very many who have.
The complaint process is certainly not meaningless, but yet it is not the same as being able to file a lawsuit in court. Note: Can file in court if the discrimination was intentional. There is a private right of action in that case. The agency (Dept of Justice) can certainly enforce the regulations, and has indicated in the letter (in your materials) that it may do just that.
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