Access to Legal Services for Limited English Proficiency (LEP) Individuals

December 1, 2006

Author(s): Michael Mulé

New York has one of the largest populations of Limited English Proficient (LEP) individuals in the United States,1 and in response some legal services offices have begun developing language access polices and procedures to assure LEP clients are provided equal access to legal assistance.  There also has been a growing understanding of language access as a civil rights issue requiring legal services programs to reexamine how they provide services to LEP individuals and develop effective policies and procedures.

Currently, many offices have inadequate procedures or lack written policies to address the needs of LEP individuals.2  Indicators of basic language access deficiencies include: encouraging and relying on relatives or friends to interpret for clients, intake databases that lack a mandatory data field for the client’s primary language, lack of formal arrangements in place to obtain professional interpreters, having neither bilingual nor monolingual staff that have been trained on interpreting techniques, lack of an articulated policy on delivering services to LEP clients, and having case handlers that send untranslated letters (or no letters at all) to clients who don’t read English (or Spanish).3  Many of these deficiencies can be overcome with proper planning and design of LEP procedures.

Before discussing the components of an effective language access policy, it is important to define who is considered LEP and why language access has been considered a civil right.  The United States Department of Health and Human Services, defines LEP persons as “individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English,” the same definition is used in the Department of Justice (DOJ) LEP Guidance.4

Executive Order 13166 (Order), “Improving Access to Services by Persons with Limited English Proficiency,” described how denying individuals access to federally funded programs or services due to their spoken language is national origin discrimination in violation of Title VI of the Civil Rights Act of 1964 and required each federal agency to develop an LEP Guidance.5  The Order described the obligation of all federal agencies and programs that are recipients of federal funding to provide meaningful access to LEP individuals in their services or programs.6  Each federal agency was to “prepare a plan to improve access to its federally conducted programs and activities by eligible LEP persons.”7 The Department of Justice (DOJ) was directed to provide federal agencies guidance on this obligation.8

Based on these federal obligations, Legal Services Corporation (LSC), in 2004, issued the “Guidance to LSC Programs for Serving Client Eligible Individuals with Limited English Proficiency.”9  The LSC Guidance (Guidance) describes how “LSC programs have an obligation to provide services to clients with limited English proficiency (LEP) that are equal to the services they provide to clients who speak English without difficulty.”10  The LSC Guidance describes a process to assist legal services offices in developing effective LEP procedures.

Programs are to assess the need for LEP procedures in each service area and examine LEP concerns in three contexts: 1) Assessing eligible individual needs and program resources in their service area; 2) Creating programs or policies that reflect these needs and resources and provide for training of program staff and the implementation of the program’s policy; and 3) Approaching LEP strategy and implementation in the context of a statewide effort.11

The LSC Guidance recommends offices consider several factors when determining the need for LEP services, policies, and procedures in each program area:

The number or proportion of LEP persons eligible to be served or likely to be encountered by the program, (using U.S. Census and other reliable data sources about the LEP community);
The frequency with which LEP individuals come in contact with the program (which languages have been most frequently encountered by the program in the past);
The nature and importance of the program’s services to people’s lives (realizing that legal representation by LSC programs is important to all they serve) ; and
The resources available to the program and the cost of obtaining them (taking account of the size of the LEP population and the resources necessary to effectively serve them).12

Once a legal services program has assessed the LEP needs using these four factors, it should create a written Language Access Policy (LAP) that describes the obligations of the program to provide services to LEP individuals.  Programs should assure that “administration, litigation and advocacy, support staff and intake, and pro bono activities, as well as community leaders, potential beneficiaries and the program board of directors have all contributed to its development.”13

An effective LAP will have several key features. It must describe a process staff can use when interacting with an LEP individual that includes 1) a method for identifying the language spoken by the individual, and 2) a list of staff with sufficient competency in particular languages alongside a list of outside language service providers for languages staff cannot accommodate which includes the contact information and availability of each.

The policy must also include how current and new staff will receive training on LEP procedures.  Such a policy should describe the responsibilities and use of available bilingual staff to provide language assistance.  Language standards must be included to assess the competency of interpreter, spoken language assistance, and translator, written assistance, services for LEP individuals.  There should also be an outreach component, so LEP individuals will be aware of language services available. Lastly, the policy should include a method to update LEP procedures periodically to address changes in the LEP population.14

The LSC Guidance was developed to assist programs in developing effective LEP policy and procedures.  Once such procedures are in place, they will assure legal services are provided to all individuals, regardless of their spoken language.

Included below are links to legal service programs with LEP procedures and polices and other resources to assist legal services programs.  Note: These resources and many others will be included in the Legal Services section of Language Access Resource Center (LARC) found in Advocate Resources section of the new Empire Justice Center website that will launched later this month.  If you have resources that you would like to add, contact Michael Mule’ at mmule@empirejustice.org.

LEP Procedures and Polices of New York legal services programs:

• Legal Aid Society of Northeastern New York, http://www.lasnny.org/
• Legal Aid Society of Mid-New York, http://www.lasmny.org/ Other Resources
• Legal Services Corporation (LSC), Resources for Serving Clients with Limited English Proficiency (LEP)
• Paul M. Uyehara, Making Legal Services Accessible to LEP Clients, Language Access Project, Community Legal Services, Inc, 2003

We at Empire Justice Center will be assessing our own LEP policies in the coming months. 

Footnotes

1. 2005 U.S. Census American Community Survey, People 5 Years and Over Who Speak a Language Other Than English at Home: 2005.
2.  See Paul M. Uyehara, Making Legal Services Accessible to LEP Clients, Language Access Project, Community Legal Services, Inc, 2003.
3.  Id.
4.  See The Department of Health and Human Services Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 68 Fed. Reg. 47,311, 47,313 (Aug. 8, 2003).  See also, Department of Justice Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, [hereinafter DOJ Guidance] 7 Fed. Reg. 41,455, 41, 458.
5.  Executive Order 13166, 65 Fed. Reg. 159 (August 16, 2000).

6.  Id.
7.  Executive Order 13166, 65 Fed. Reg. 159 (August 16, 2000).
8.  See DOJ Guidance, 67 Fed. Reg. 41,455.
9.  See Legal Services Corporation LEP Guidance.
10.  Pg.1, Legal Services Corporation LEP Guidance.
11.  See Pg.3, Legal Services Corporation LEP Guidance.
12.  See Pg.4, Legal Services Corporation LEP Guidance.
13.  See Pg.6 , Legal Services Corporation LEP Guidance.
14.  See Pg.6-13, Legal Services Corporation LEP Guidance.