Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 21755-21768 [2011-9336]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 76, Number 74 (Monday, April 18, 2011)]
[Notices]
[Pages 21755-21768]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9336]


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DEPARTMENT OF HOMELAND SECURITY

[DHS Docket No. DHS-2009-0032]


Guidance to Federal Financial Assistance Recipients Regarding 
Title VI Prohibition Against National Origin Discrimination Affecting 
Limited English Proficient Persons

AGENCY: Office for Civil Rights and Civil Liberties, DHS.

ACTION: Notice; final policy guidance.

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SUMMARY: The Department of Homeland Security is finalizing guidance to 
recipients of Federal financial assistance regarding Title VI's 
prohibition against national origin discrimination affecting persons 
with limited English proficient persons. This guidance is issued 
pursuant to Executive Order 13166 and is consistent with government-
wide guidance previously issued by the Department of Justice.

DATES: This guidance is effective May 18, 2011.

FOR FURTHER INFORMATION CONTACT: Rebekah Tosado, Senior Advisor to the 
Officer for Civil Rights and Civil Liberties, Office for Civil Rights 
and Civil Liberties, Department of Homeland Security, 245 Murray Lane, 
SW., Building 410, Washington, DC 20528, Mail Stop 0190. Toll free: 1-
866-644-8360 or TTY 1-866-644-8361. Local: 202-401-1474 or TTY: 202-
401-0470.

SUPPLEMENTARY INFORMATION: Executive Order 13166 directs each Federal 
agency that extends assistance subject to the requirements of Title VI 
of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq., to publish 
guidance for its respective recipients clarifying that obligation. 
Executive Order 13166, Improving Access to Services for Persons with 
Limited English Proficiency, 65 FR 50121 (August 11, 2000). Executive 
Order 13166 further directs that all such guidance documents be 
consistent with the compliance standards and framework detailed by the 
Department of Justice (DOJ). See Enforcement of Title VI of the Civil 
Rights Act of 1964--National Origin Discrimination Against Persons with 
Limited English Proficiency, 65 FR 50123 (August 16, 2000) (DOJ Agency 
LEP Guidance).
    The Department of Homeland Security (DHS) adopts guidance that 
adheres to the Government-wide compliance standards and framework 
detailed in the DOJ Agency LEP Guidance and in the DOJ's own guidance 
to its financial assistance recipients. Guidance to Federal Financial 
Assistance Recipients

[[Page 21756]]

Regarding Title VI Prohibition Against National Origin Discrimination 
Affecting Limited English Proficient Persons, 67 FR 41455 (June 18, 
2002) (DOJ Recipient LEP Guidance). The Departments of Commerce, 
Education, Energy, Health and Human Services, Housing and Urban 
Development, Interior, Justice, Labor, State, Transportation, Treasury, 
and Veterans Affairs, the Environmental Protection Agency, and several 
other independent and Executive Branch agencies have issued similar 
guidance. DHS solicited comments on the nature, scope, and 
appropriateness of the DHS-specific examples set out in this guidance 
explaining and/or highlighting how those Federal-wide guidelines are 
applicable to recipients of DHS financial assistance.
    This guidance does not constitute a regulation subject to the 
rulemaking requirements of the Administrative Procedure Act. 5 U.S.C. 
553. This guidance was published for public comment in the Federal 
Register pursuant to the instructions in Executive Order 13166.

A. Response to Comments

    The DHS draft guidance on DHS recipients' obligations to take 
reasonable steps to ensure access by LEP persons was published on June 
17, 2010. See 75 FR 34465. The comment period was clarified to extend 
to July 17, 2010. See 75 FR 38821 (July 6, 2010). DHS received 9 
comments representing at least 24 organizations in response to its 
publication of draft guidance on DHS recipients' obligations to take 
reasonable steps to ensure access to programs and activities by LEP 
persons. The comments reflected the views of individuals, organizations 
serving LEP populations, national civil rights organizations, a public 
policy and law institute, and several legal service providers.
    The comments were generally supportive of DHS's effort to issue 
this guidance, and all provided constructive comments for amplifying 
specific examples, strengthening certain language, and better ensuring 
the effectiveness of the guidelines. No comments generally unfavorable 
to the guidance were received, and seven comments endorsed or applauded 
the guidance as a general matter. Nearly all comments noted that 
failure to communicate with or understand an LEP person can pose a risk 
to life, limb, and property in cases of emergency, disaster, or law 
enforcement activity. DHS agrees; the final guidance informs recipients 
that if they provide benefits and services or operate in the context of 
emergency preparedness, response and recovery, health and safety, or 
law enforcement they should be prepared to provide language services to 
LEP persons in the jurisdictions in which they operate. DHS looks 
forward to continued progress, in partnership with recipients and 
beneficiaries, on ensuring meaningful access to LEP persons.
    One comment urged DHS's Office for Civil Rights and Civil Liberties 
to provide technical assistance to recipients on meeting their 
responsibilities under Title VI as outlined in the guidance and to 
serve as a centralized resource center on model plans and promising 
practices for recipients to better serve LEP persons. As noted in the 
guidance, CRCL will be available to provide such technical assistance 
and will continue to work with the U.S. Department of Justice and other 
agencies to make resources available through LEP.gov (https://www.lep.gov), the Web site of the Federal Interagency Working Group, 
with information for recipients, Federal agencies, and the communities 
being served. Two comments urged that DHS proceed to issuance of LEP 
guidance for Federally conducted activities as well, as required by 
Executive Order 13166. A plan for DHS is forthcoming; in the meantime, 
this guidance recognizes, in footnote 4, that Departmental activities 
are subject to the same four-factor framework for providing LEP access 
as are recipients. One comment proposed revising draft LEP guidance 
prepared by the Federal Emergency Management Agency (FEMA) in 2002, 
prior to its transfer into DHS, and consider issuing LEP guidance by 
other DHS components. DHS disagrees, and believes uniform department-
wide LEP guidance will provide a clearer framework for recipients of 
assistance than potentially conflicting guidance from different 
components. This guidance to recipients will apply to all DHS 
components.
    The comments received on more specific subjects are summarized and 
addressed below.

1. Motor Vehicle Departments and Mass Transit Providers

    Three comments recommended express mention of motor vehicle 
departments, and two recommended inclusion of mass transit providers, 
as recipients with high rates of contact with, and potential obstacles 
to meaningful participation by, LEP persons. Mass transit authorities 
were already included in the draft guidance. The guidance now includes 
motor vehicle departments as well.

2. Detention

    Five comments urged revisions to the guidance to discuss alien 
detention programs operated by U.S. Immigrations and Customs 
Enforcement (ICE). Federally conducted activity, including ICE's 
immigration detention, is not regulated by Title VI and is not within 
the scope of this guidance. We note again, however, that Executive 
Order 13166 governs DHS's own Federally conducted activity. DHS and ICE 
take very seriously the need to strengthen the provision of language 
access for all ICE detainees who are LEP. ICE detention standards, 
including detention standards related to health care, grievances, 
searches, sexual abuse prevention, and staff-detainee communication, 
require that detainees be provided information in a language they can 
understand. Among other steps, ICE has increased the number of 
translated forms available and commercial interpreter lines are used to 
facilitate communication with detainees. ICE has provided training to 
detention managers on Executive Order 13166, and on how to provide 
meaningful access to LEP persons who are detained and will continue to 
make training and resources available to personnel that interact with 
LEP detainees. In addition, LEP persons in ICE detention will be 
covered by the forthcoming LEP plan for DHS activities. Similarly, 
ICE's immigration enforcement activities and its alternatives to 
detention programs, which were addressed by several comments, are 
Federally conducted activities that fall outside the scope of this 
guidance but will be covered by the LEP plan. Several other comments 
referred to ``detention'' generally, with one comment suggesting 
greater incorporation of language included in the DOJ Recipient LEP 
Guidance with respect to conditions of confinement and provision of 
health services. As explained below, where DOJ is the primary provider 
of Federal assistance to recipients--as it is with recipients that 
operate non-immigration detention--recipients will generally be well 
served by referring directly to that guidance, which these guidelines 
incorporate by reference. Because State and local jails and prisons are 
primarily assisted by DOJ, additional references to the unique issues 
presented by detention would not clarify the guidance for recipients of 
Departmental assistance.

[[Page 21757]]

3. State and Local Law Enforcement and Other Specific Recipients

    At least four comments suggested more expansive discussion of local 
law enforcement agencies, with particular attention to programs through 
which State and local law enforcement entities partner with ICE through 
a joint memorandum of agreement (MOA) to perform certain functions of 
an immigration officer in the enforcement of Federal immigration law 
within their jurisdiction. Immigration and Nationality Act, as amended 
(INA), section 287(g), 8 U.S.C. 1357(g). The MOA between ICE and 
participating agencies states that Title VI, including the necessity of 
providing access for LEP persons, applies to all participating State 
and local law enforcement personnel. The agreements already make clear 
that law enforcement agencies have obligations to provide language 
services to LEP persons encountered in exercising the authority under 
the INA and the guidance already lists State and local police 
departments as examples of DHS recipients to which the guidance 
applies. Nevertheless, the guidance has been revised in several places 
to emphasize aspects pertinent to State and local law enforcement 
agencies receiving assistance from DHS.
    Four comments suggested that the guidance should expressly refer 
recipients to guidance by other agencies, including DOJ and HHS, that 
conclude that LEP assistance must be provided in certain critical 
environments. Recipients should look chiefly to the guidance 
promulgated by the agency that is the primary source of Federal 
assistance to an entity--as, for example, DOJ is for State and local 
law enforcement. Thus, the guidance refers to DOJ's and other agencies' 
guidance. In addition, the guidance notes that it is (and is intended 
to be) consistent with other agencies' LEP guidance. For that reason, 
DHS has concluded that specific reference to particular DHS programs, 
such as those related to INA section 287(g), would not provide any 
additional clarity to entities covered by this guidance. The guidance 
has been revised to direct recipients to other agency guidance where 
appropriate.
    In addition to revisions to the guidance, two comments proposed 
substantive revisions to all memoranda of agreement implementing INA 
section 287(g) agreements pertaining to issues that may involve LEP 
persons including domestic abuse and human trafficking. While these 
agreements fall outside the scope of this publication, DHS is committed 
to strengthening its technical assistance to and oversight of these law 
enforcement partners in meeting their obligations toward LEP persons 
under Title VI. For example, in reminding State and local partners 
about their obligations with LEP persons, ICE has shared a host of 
resources, including the following materials developed by DOJ and 
available online at LEP.gov: Planning Tool for Creating a Language 
Assistance Policy and Plan for a Law Enforcement Agency, and Lost in 
Translation: Limited English Proficient Populations and the Police by 
Bharathi A. Venkatraman, Attorney, Civil Rights Division, U.S. 
Department of Justice. ICE has also made language interpretation 
resources available to its INA section 287(g) partners.
    Two comments urged that State, county, and municipal courts be 
expressly included among entities subject to the guidance. As DHS is 
not the principal source of Federal assistance to such entities, and 
rarely a significant source of assistance, any such recipients will 
comply with their LEP obligations by adhering to the guidance 
promulgated by the primary source of such assistance. DOJ recently 
addressed LEP issues in State and municipal courts in a letter from 
Assistant Attorney General Thomas E. Perez to State chief justices and 
court administrators, available at https://www.LEP.gov.

4. Application of the Four Factors

    Several comments recommended additional language guiding 
application of the four factors used in determining the extent of a 
recipient's LEP obligations with regard to particular recipients or 
activities. With the exception of areas already discussed as 
implicating only DHS conducted activity, such as ICE detention, these 
helpful comments have generally been incorporated into the guidance. 
For example, part V.3. of the guidance now discusses the importance of 
being prepared to provide language access for recipients that provide 
services and benefits or operate in the context of emergency 
preparedness; response and recovery; health and safety; and law 
enforcement. encountering LEP persons.

5. Interpretation and Translation

    Three comments provided suggestions regarding forms, methods, and 
practices in interpretation and translation. The final guidance better 
reflects the relevance of accreditation and certification of 
interpreters and translators, and to make clear that summarization is 
not an acceptable form of interpretation. The guidance suggests that 
certification of interpreters may be required (when possible) when 
legal rights are at stake. The guidance also reflects one comment's 
suggestions that legal advocates, civil rights groups, and similar 
associations can play a valuable role in determining how best to 
provide language assistance services when important rights are at 
stake. Other suggestions, though well taken, are already reflected in 
the guidance, such as one comment's observation that bilingual staff 
may not necessarily have appropriate skills to translate documents.
    One comment suggested DHS recognize ``back-translation'' as a safe 
harbor practice; two others suggested cooperation with legal and other 
community organizations as a safe harbor. While back-translation is an 
excellent technique for verifying a translation, DHS declines to depart 
from other agencies' guidance by creating new safe harbors. The 
guidance is sufficiently flexible to ensure that recipients can readily 
incorporate community organizations and other best practices to create 
an appropriate LEP policy. DHS incorporated one comment's suggestion 
that recipients be urged to develop a systemic process for determining 
which documents to translate.
    DHS disagrees with one comment's suggestion that the guidance 
demand high-quality interpretation in all circumstances. A rigid 
requirement that denies recipients the ability to intelligently 
allocate LEP resources would be counter-productive. Similarly, DHS 
disagrees with a comment's argument that in-person oral interpretation 
is always preferable to telephonic interpretation. Recipients should 
consider which interpretative techniques are best-suited to a given 
program or situation; one size does not fit all. Likewise, DHS does not 
agree with a comment urging it to mandate that all language services 
for LEP persons be provided in the same manner and timeframe as they 
are for English speakers. Nevertheless, the guidance explains that it 
is more likely that a recipient is providing meaningful access in 
certain cases when there is immediate access to competent bilingual 
staff or on-site or telephonic interpretation. DHS agrees with, and has 
adopted, one comment's recommendation that recipients ensure staff are 
suitably trained in, and have appropriate equipment to utilize, 
telephonic interpretation services.
    The guidance has been revised in light of multiple comments 
concerning use of informal interpretation or interpretation by family 
members, or friends. The use of such informal interpreters is strongly 
discouraged in

[[Page 21758]]

certain situations, such as in most medical encounters where recipients 
should make regular use of competent interpreters. DHS disagrees with a 
comment suggesting that documentation necessarily be kept whenever an 
LEP person wishes to provide his or her own interpreter, but the 
guidance now suggests that any such choice be fully informed and 
voluntary. In addition, the guidance makes clear that recipients need 
not agree to using an LEP person's interpreter as the sole means of 
interpretation. In response to several comments, the guidance now 
rejects using minor children as interpreters except in temporary, 
emergency situations when other options are not readily available, and 
it makes clear that when interpreters are provided by recipients, they 
must be free of charge.

6. Language Assistance Plans

    Five comments concerned written Language Assistance Plans. The DHS 
guidance now suggests that all appropriate staff receive a copy of the 
LEP plan; includes DHS's processes for receiving complaints; encourages 
involvement with civil rights groups and similar associations in 
developing and revising a plan; and encourages the tracking of 
encounters with LEP persons by, among other things, languages spoken. 
While many, or even most, recipients would be well advised to develop a 
written plan, DHS disagrees with comments advocating that such plans be 
mandatory; however, the guidance suggests that recipients that are 
likely to encounter LEP persons have a policy for providing language 
access and that recipients communicate the policy with staff and LEP 
persons. One comment suggested the guidance encourage recipients to 
partner with groups in the community to help determine whether a 
language access plan is necessary and in the creation of language 
access plans. DHS recognizes the value of this and has added language 
to this guidance to encourage such partnerships.
    Finally, this guidance suggests that recipients have a policy as 
well as an implementation plan to address the identified language needs 
of the LEP populations they serve. Having such a policy, however 
simple, can serve to guide the recipient in its services to LEP persons 
and be a starting point from which to plan the delivery of services and 
benefits in a manner designed to ensure equal access to LEP individuals 
in the service area who are entitled to receive them.

7. Enforcement and Monitoring

    DHS takes seriously its obligation under 6 CFR part 21 and 44 CFR 
7.5(b) to enforce the non-discriminatory requirements of Title VI. The 
DHS Office for Civil Rights and Civil Liberties, along with FEMA's 
Office of Equal Rights and other component offices, will enforce and 
monitor efforts. As noted in the Guidance, the DHS Office for Civil 
Rights and Civil Liberties and FEMA's Office of Equal Rights accept 
complaints or inquires related to a recipient's provision of meaningful 
access to LEP persons and is prepared to take enforcement action in any 
case in which a violation has been established.

Guidance to Federal Financial Assistance Recipients Regarding Title VI 
Prohibition Against National Origin Discrimination Affecting Limited 
English Proficient Persons

I. Introduction

    Most individuals living in the United States read, write, speak, 
and understand English. Many individuals, however, do not read, write, 
speak, or understand English as their primary language. Based on the 
2000 census, over 28 million individuals speak Spanish and almost 7 
million individuals speak an Asian or Pacific Island language at home. 
If these individuals have a limited ability to read, write, speak, or 
understand English, they are limited English proficient, or LEP. The 
2000 census indicates that 28.1 percent of all Spanish-speakers, 28.2 
percent of all Chinese-speakers, and 32.3 percent of all Vietnamese-
speakers reported that they spoke English ``not well'' or ``not at 
all.'' More recent data from the 2008 American Community Survey 
estimates that 24.4 million individuals in America, or 8.6 percent of 
the population 5 years and older, speak English less than ``very 
well.''
    For LEP individuals, language can be a barrier to accessing 
important benefits or services, understanding and exercising important 
rights, providing timely and critical information to first responders 
in times of emergency, complying with applicable responsibilities, or 
understanding other information provided by Federally funded programs 
and activities. DHS, like other Federal agencies and the Federal 
Government as a whole, is committed to improving the accessibility of 
these programs and activities to eligible LEP persons, a goal that 
reinforces its equally important commitment to promoting programs and 
activities designed to help individuals learn English. Recipients 
should not overlook the long-term positive impacts of incorporating or 
offering English as a Second Language (ESL) programs in parallel with 
language assistance services. ESL courses can serve as an important 
adjunct to a proper LEP plan. However, the fact that ESL classes are 
made available does not obviate the statutory and regulatory 
requirement to provide meaningful access for those who are not yet 
English proficient. Recipients of Federal financial assistance have an 
obligation to reduce language barriers that can preclude meaningful 
access by LEP persons to important government services.\1\
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    \1\ DHS recognizes that many recipients had language assistance 
programs in place prior to the issuance of Executive Order 13166. 
This policy guidance provides a uniform framework for DHS recipients 
to integrate, formalize, and assess the continued vitality of these 
existing and possibly additional reasonable efforts based on the 
nature of its program or activity, the current needs of the LEP 
population it encounters, and its prior experience in providing 
language services in the community it serves.
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    In certain circumstances, failure to ensure that LEP persons can 
effectively participate in or benefit from Federally assisted programs 
and activities may violate the prohibition under Title VI of the Civil 
Rights Act of 1964, 42 U.S.C. 2000d, and DHS Title VI regulations 
against national origin discrimination, 6 CFR part 21. The purpose of 
this policy guidance is to assist DHS recipients in fulfilling their 
responsibilities to provide meaningful access to LEP persons under 
existing law. This policy guidance clarifies existing legal 
requirements for LEP persons by providing a description of the factors 
DHS recipients should consider in fulfilling their responsibilities to 
LEP persons.\2\ These are the same criteria DHS uses in evaluating 
whether recipients are in compliance with Title VI and its regulations.
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    \2\ The policy guidance is not a regulation but rather a guide. 
Title VI and its implementing regulations require that recipients 
take responsible steps to ensure meaningful access by LEP persons. 
This guidance provides an analytical framework that recipients may 
use to determine how best to comply with statutory and regulatory 
obligations to provide meaningful access to the benefits, services, 
information, and other important portions of their programs and 
activities for individuals who are limited English proficient.
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    Consistency among agencies of the Federal Government is 
particularly important. Inconsistency or contradictory guidance could 
confuse recipients of Federal funds and needlessly increase costs 
without rendering the meaningful access for LEP persons that this 
guidance is designed to address. This guidance is consistent with both 
the 2000 DOJ Agency LEP Guidance and the 2002 DOJ Recipient

[[Page 21759]]

LEP Guidance. This guidance, moreover, includes additional information, 
resources, and guidance that have been developed by the Federal 
Government in the years that have followed the publication of Executive 
Order 13166 and the DOJ guidance.
    As with most government initiatives, providing meaningful access 
for LEP persons requires balancing several principles. While this 
guidance discusses that balance in some detail, it is important to note 
the basic principles. First, we must ensure that Federally assisted 
programs aimed at the American public do not leave some behind simply 
because they face challenges communicating in English. This is of 
particular importance because, in many cases, LEP individuals form a 
substantial portion of those individuals encountered in Federally 
assisted programs. Second, we must achieve this goal while finding 
constructive methods to reduce the costs of LEP requirements on small 
businesses, small local governments, or small non-profits that receive 
Federal financial assistance.
    There are many productive steps that the Federal Government, either 
collectively or as individual grant agencies, can take to help 
recipients reduce the costs of language services without sacrificing 
meaningful access for LEP persons. Without these steps, certain smaller 
grantees may well choose not to participate in Federally assisted 
programs, threatening the critical functions that the programs strive 
to provide. DHS is committed to working with its recipients to provide 
information on language assistance measures, resources, and activities 
that can effectively be shared or otherwise made available to 
recipients. In addition, the Federal Interagency Working Group on LEP 
has developed a Web site, https://www.lep.gov, which assists in 
disseminating this information to recipients, Federal agencies, and the 
communities being served.

II. Legal Authority

    Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
2000d, provides that no person shall ``on the ground of race, color, or 
national origin, be excluded from participation in, be denied the 
benefits of, or be subjected to discrimination under any program or 
activity receiving Federal financial assistance.'' Section 602 
authorizes and directs Federal agencies that are empowered to extend 
Federal financial assistance to any program or activity ``to effectuate 
the provisions of [section 601] * * * by issuing rules, regulations, or 
orders of general applicability.'' 42 U.S.C. 2000d-1.
    DHS regulations promulgated pursuant to section 602 forbid 
recipients from ``utiliz[ing] criteria or methods of administration 
which have the effect of subjecting persons to discrimination because 
of their race, color, or national origin, or have the effect of 
defeating or substantially impairing accomplishment of the objectives 
of the program with respect to individuals of a particular race, color, 
or national origin.'' 6 CFR 21.5(b)(2).
    The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974), 
interpreted a regulation promulgated by the former Department of 
Health, Education, and Welfare, 45 CFR 80.3(b)(2), which is similar to 
the DHS Title VI interim regulation, 6 CFR part 21, to hold that Title 
VI prohibits conduct that has a disproportionate effect on LEP persons 
because such conduct constitutes national-origin discrimination. In 
Lau, a San Francisco school district that had a significant number of 
non-English speaking students of Chinese origin was required to take 
reasonable steps to provide them with a meaningful opportunity to 
participate in Federally funded educational programs.
    On August 11, 2000, the President signed Executive Order 13166, 
Improving Access to Services for Persons with Limited English 
Proficiency, 65 FR 50121 (August 11, 2000). Under that order, every 
Federal agency that provides financial assistance to non-Federal 
entities must publish guidance on how their recipients can provide 
meaningful access to LEP persons and thus comply with Title VI 
regulations forbidding funding recipients from ``restrict[ing] an 
individual in any way in the enjoyment of any advantage or privilege 
enjoyed by others receiving any service, financial aid, or other 
benefit under the program'' or from ``utiliz[ing] criteria or methods 
of administration which have the effect of subjecting individuals to 
discrimination because of their race, color, or national origin, or 
have the effect of defeating or substantially impairing accomplishment 
of the objectives of the program as respects individuals of a 
particular race, color, or national origin.''
    At the same time, DOJ provided further guidance to Executive Agency 
civil rights officers, setting forth general principles for agencies to 
apply in developing guidance documents for recipients pursuant to the 
Executive Order. Enforcement of Title VI of the Civil Rights Act of 
1964 National Origin Discrimination Against Persons With Limited 
English Proficiency, 65 FR 50123 (August 16, 2000) (DOJ Agency LEP 
Guidance).
    Subsequently, the Supreme Court decided that Title VI does not 
create a private right of action to enforce regulations promulgated 
under Section 602. Alexander v. Sandoval, 532 U.S. 275, 293 (2001). 
Federal agencies raised questions regarding the requirements of the 
Executive Order, in light of the Supreme Court's decision in Alexander 
v. Sandoval. On October 26, 2001, DOJ's Assistant Attorney General for 
the Civil Rights Division advised agency General Counsels and civil 
rights directors, clarifying and reaffirming the DOJ Agency LEP 
Guidance in light of Sandoval.\3\ The Assistant Attorney General stated 
that because Sandoval did not invalidate any Title VI regulations that 
proscribe conduct that has a disparate impact on covered groups--the 
types of regulations that form the legal basis for the part of 
Executive Order 13166 that applies to Federally assisted programs and 
activities--the Executive Order remains in force. Mindful of the 
limitations on bringing a private action to enforce Title VI 
regulations addressing disparate impact, DHS is committed to vigorously 
enforcing the requirements of Title VI and its implementing regulations 
on behalf of LEP beneficiaries and other LEP persons encountered by DHS 
assisted agencies and entities.
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    \3\ The memorandum noted that some commenters have interpreted 
Sandoval as impliedly striking down the disparate-impact regulations 
promulgated under Title VI that form the basis for the part of 
Executive Order 13166 that applies to Federally assisted programs 
and activities. See, e.g., Sandoval, 532 U.S. at 286, 286 n.6 
(``[W]e assume for purposes of this decision that Sec.  602 confers 
the authority to promulgate disparate-impact regulations; . * * * We 
cannot help observing, however, how strange it is to say that 
disparate-impact regulations are `inspired by, at the service or, 
and inseparably intertwined with' Sec.  601 * * * when Sec.  601 
permits the very behavior that the regulations forbid.''). The 
memorandum, however, made clear that DOJ disagreed with the 
commenters' interpretation. Sandoval holds principally that there is 
no private right of action to enforce Title VI disparate-impact 
regulations. The court explicitly stated in Sandoval that it did not 
address the validity of those regulations or Executive Order 13166 
or otherwise limit the authority and responsibility of Federal grant 
agencies to enforce their own implementing regulations. 532 U.S. at 
279.
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    DOJ developed further guidance for recipients of financial 
assistance from that agency. Guidance to Federal Financial Assistance 
Recipients Regarding Title VI Prohibition Against National Origin 
Discrimination Affecting Limited English Proficient Persons, 67 FR 
41455 (June 18, 2002) (DOJ Recipient LEP Guidance).
    This guidance document is published pursuant to Executive Order 
13166 and reflects the Assistant Attorney General's

[[Page 21760]]

October 26, 2001, clarifying memorandum.

III. Covered Recipients

    DHS regulations, 6 CFR 21.5(b)(2) and 44 CFR 7.5(b), require all 
recipients of Federal financial assistance from DHS to provide 
meaningful access to LEP persons.\4\ Federal financial assistance 
includes grants, training, use of equipment, donations of surplus 
property, and other assistance. Examples of recipients of DHS 
assistance include, but are not limited to:
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    \4\ Pursuant to Executive Order 13166, the meaningful access 
requirement of the Title VI regulations and the four-factor analysis 
set forth in the DOJ Agency LEP Guidance are to additionally apply 
to the programs and activities of Federal agencies, including DHS.
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    a. State and local fire departments;
    b. State and local police departments;
    c. State and local emergency management agencies;
    d. State and local governments, together with certain qualified 
private non-profit organizations, when they receive assistance pursuant 
to a Presidential declaration of disaster or emergency;
    e. Certain non-profit agencies that receive funding under the 
Emergency Food and Shelter Program;
    f. Mass transit authorities;
    g. Community Emergency Response Teams (CERT), which conduct 
training and other activities to enhance individual, community, family, 
and workplace preparedness;
    h. State and local departments that operate jails and prisons;
    i. Coast Guard assisted boating safety programs;
    j. Entities that receive specialized training through the Federal 
Law Enforcement Training Center (FLETC);
    k. Intercity bus programs; and
    l. State motor vehicle departments.
    The Catalogue of Federal Domestic Assistance (CFDA) contains 
current information on DHS Federal financial assistance and can be 
found at https://www.cfda.gov/. Sub-recipients likewise are covered when 
Federal funds are passed through from one recipient to a sub-recipient.
    Coverage extends to a recipient's entire program or activity, i.e. 
to all parts of a recipient's operations. This is true even if only one 
part of the recipient receives the Federal assistance.\5\ For example, 
if DHS provides assistance to a particular division of a State 
emergency management agency to improve planning capabilities in that 
division, all of the operations of the entire State emergency 
management agency--not just the particular division--are covered.
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    \5\ If, however, a Federal agency were to decide to terminate 
Federal funds based on noncompliance with Title VI or its 
regulations, this result would affect only funds directed to the 
particular non-compliant program or activity.
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    Finally, some recipients operate in jurisdictions in which English 
has been declared the official language. Nonetheless, DHS recipients 
continue to be subject to Federal non-discrimination requirements 
including those applicable to access to and provision of Federally 
assisted programs and activities to persons with limited English 
proficiency.

IV. Limited English Proficient Individual

    Individuals who do not speak English as their primary language and 
those who have a limited ability to read, write, speak, or understand 
English can be limited English proficient, or ``LEP,'' and entitled to 
language assistance with respect to a particular type of service, 
benefit, or encounter.
    Examples of populations likely to include LEP persons who are 
encountered and/or served by DHS recipients and should be considered 
when planning language services include but are not limited to:
    a. Persons who require the aid of a local or State police or fire 
department, or other emergency services;
    b. Persons who seek assistance at airports that receive TSA funds;
    c. Persons who are applying for assistance under a FEMA or State 
disaster relief program;
    d. Persons who seek to enroll in a safe boating course that is 
offered by a State receiving funds;
    e. Persons who use mass transit services such as buses or subways 
that receive DHS financial assistance;
    f. Persons subject to or serviced by law enforcement activities, 
including for example, suspects, violators, witnesses, victims, those 
subject to immigration-related investigations by recipient law 
enforcement agencies, agencies, and community members seeking to 
participate in crime prevention and awareness activities; or
    g. Parents and family members of LEP individuals.

V. Recipient Determination of the Extent of Its Obligation To Provide 
LEP Services

    Recipients are required to take reasonable steps to ensure 
meaningful access to their programs and activities by LEP persons. 
While designed to be a flexible and fact-dependent standard, the 
starting point is an individualized assessment that balances the 
following four factors:
    1. The number or proportion of LEP persons eligible to be served or 
likely to be encountered by the program or grantee;
    2. The frequency with which LEP individuals come in contact with 
the program;
    3. The nature and importance of the program, activity, or service 
provided by the program to people's lives; and
    4. The resources available to the grantee/recipient and costs.
    As indicated above, the intent of this guidance is to suggest a 
balance that ensures meaningful access by LEP persons to critical 
services while not imposing undue burdens on small business, small 
local governments, or small non-profits.
    After applying the above four-factor analysis, a recipient may 
conclude that different language assistance measures are sufficient for 
the different types of programs or activities in which it engages. For 
instance, some of a recipient's activities will be more important than 
others and/or have greater impact on or contact with LEP persons, and 
thus may require more in the way of language assistance. The 
flexibility that recipients have in addressing the needs of the LEP 
populations they serve does not diminish, and should not be used to 
minimize, the obligation that those needs be addressed. DHS recipients 
should apply the four factors to the various kinds of contacts that 
they have with the public to assess language needs and decide what 
reasonable steps they should take to ensure meaningful access for LEP 
persons.

1. The Number or Proportion of LEP Persons Served or Encountered in the 
Eligible Service Population

    One factor in determining what language services recipients should 
provide is the number or proportion of LEP persons from a particular 
language group served or encountered in the eligible service 
population. The greater the number or proportion of these LEP persons, 
the more likely language services are needed. Ordinarily, persons 
``eligible to be served, or likely to be directly affected, by'' a 
recipient's program or activity are those who are served or encountered 
in the eligible service population. This population will be program-
specific, and includes persons who are in the geographic area that has 
been approved by a Federal grant agency as the recipient's service 
area. However, where, for instance, a fire station serves a large LEP 
population, the appropriate service area

[[Page 21761]]

is most likely the area served by that station, and not the entire 
population served by the agency. Where no service area has previously 
been approved, the relevant service area may be that which is approved 
by State or local authorities or designated by the recipient itself, 
provided that these designations do not themselves discriminatorily 
exclude certain populations. When considering the number or proportion 
of LEP individuals in a service area, recipients should consider LEP 
parent(s) when their English-proficient or LEP minor children and 
dependents access or encounter the recipients' services.
    Recipients should first examine their prior experiences with LEP 
encounters and determine the breadth and scope of language services 
that were needed. In conducting this analysis, it is important to 
include language minority populations that are eligible for their 
programs or activities but may be underserved because of existing 
language barriers. Other data should be consulted to refine or validate 
a recipient's prior experience, including the latest census data for 
the area served, and data from school systems, community organizations, 
and State and local governments.\6\ 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 if language 
services were provided.
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    \6\ The focus of the analysis is on lack of English proficiency, 
not the ability to speak more than one language. Note that 
demographic data may indicate the most frequently spoken languages 
other than English and the percentage of people who speak that 
language who speak or understand English less than well. Some of the 
most commonly spoken languages other than English may be spoken by 
people who are also overwhelmingly proficient in English. Thus, they 
may not be the languages spoken most frequently by limited English 
proficient individuals. When using demographic data, it is important 
to focus in on the languages spoken by those who are not proficient 
in English.
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2. The Frequency With Which LEP Individuals Come in Contact With the 
Program

    Recipients should assess, as accurately as possible, the frequency 
with which they have or should have contact with an LEP individual from 
different language groups seeking assistance. The more frequent the 
contact with a particular language group, the more likely that enhanced 
language services in that language are needed. The steps that are 
reasonable for a recipient that serves an LEP person on a one-time 
basis will be very different than those expected from a recipient that 
serves LEP persons daily. Many police departments and mass transit 
authorities, for example, may expect high rates of contact with LEP 
individuals. It is also advisable to consider the frequency of 
different types of language contacts. Frequent contacts with Spanish-
speaking people who are LEP, for example, may require certain 
assistance in Spanish. Less frequent contact with different language 
groups may suggest a different and less intensified solution. If an LEP 
individual accesses a program or service on a daily basis, a recipient 
has greater duties than if the same individual's program or activity 
contact is unpredictable or infrequent. But even recipients that serve 
LEP persons on an unpredictable or infrequent basis should use this 
balancing analysis to determine what to do if an LEP individual seeks 
services under the program in question. This plan need not be 
intricate. It may be as simple as being prepared to use a commercially 
available telephonic interpretation service to obtain immediate 
interpreter services. In applying this standard, recipients should take 
care to consider whether appropriate outreach to LEP persons could 
increase the frequency of contact with LEP language groups.

3. The Nature and Importance of the Program, Activity, or Service 
Provided by the Program

    The more important the activity, information, service, or program, 
or the greater the possible consequences of the contact to the LEP 
individuals, the more likely language services are needed. The 
obligations to communicate with individual disaster applicants or to 
provide fire safety information to residents of a predominantly LEP 
neighborhood differ, for example, from those to provide recreational 
programming on the part of a municipal parks department receiving 
disaster aid. A recipient needs to determine whether denial or delay of 
access to services or information could have serious or even life-
threatening implications for the LEP individual. In particular, 
recipients that provide services and benefits or operate in the context 
of emergency preparedness; response and recovery; health and safety; 
and law enforcement should be prepared to provide language services 
whenever serving or encountering LEP persons. In addition, decisions by 
a Federal, State, or local entity to make an activity compulsory, such 
as the requirement to complete an application to receive certain State 
disaster assistance benefits, can serve as strong evidence of the 
program's importance.

4. The Resources Available to the Recipient and Costs

    A recipient's level of resources and the costs that would be 
imposed on it may have an impact on the nature of the steps it should 
take. Smaller recipients with more limited budgets are not expected to 
provide the same level of language services as larger recipients with 
larger budgets. In addition, ``reasonable steps'' may cease to be 
reasonable where the costs imposed substantially exceed the benefits.
    Resource and cost issues, however, can often be reduced by 
technological advances; the sharing of language assistance materials 
and services among and between recipients, advocacy groups, and Federal 
grant agencies; and reasonable business practices. Where appropriate, 
training bilingual staff to act as interpreters and translators, 
information sharing through industry groups, telephonic and video 
conferencing interpretation services, pooling resources and 
standardizing documents to reduce translation needs, using qualified 
translators and interpreters to ensure that documents need not be 
``fixed'' later and that inaccurate interpretations do not cause delay 
or other costs, centralizing interpreter and translator services to 
achieve economies of scale, or the formalized use of qualified 
community volunteers may, for example, help reduce costs.\7\ Recipients 
should carefully explore the most cost-effective means of delivering 
competent and accurate language services before limiting services due 
to resource concerns. Large entities and those entities serving a 
significant number or proportion of LEP persons should ensure that 
their resource limitations are well-substantiated before using this 
factor as a reason to limit language assistance. Such recipients may 
find it useful to be able to articulate, through documentation or in 
some other reasonable manner, their process for determining that 
language services would be limited based on resources or costs.
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    \7\ Small recipients with limited resources may find that 
entering into a bulk telephonic interpretation service contract will 
prove cost effective.
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    This four-factor analysis necessarily implicates the ``mix'' of LEP 
services required. Recipients have two main ways to provide language 
services: oral and written.
    Oral interpretation either in person or via telephone 
interpretation service (hereinafter ``interpretation''): Oral 
interpretation can range from on-site interpreters for critical 
services

[[Page 21762]]

provided to a high volume of LEP persons to access through commercially 
available telephonic interpretation services.
    Written translation (hereinafter ``translation''): Written 
translation, likewise, can range from translation of an entire document 
to translation of a short description of the document.
    In some cases, language services should be made available on an 
expedited basis while in others the LEP individual may be referred to 
another office of the recipient for language assistance.
    The correct mix should be based on what is both necessary and 
reasonable in light of the four-factor analysis. For instance, a fire 
department in a largely Hispanic community may need oral interpreters 
immediately available and should give serious consideration to hiring 
some bilingual staff. (Of course, many fire departments have already 
made such arrangements). In contrast, there may be circumstances where 
the importance and nature of the activity and number or proportion and 
frequency of contact with LEP persons may be low and the costs and 
resources needed to provide language services may be high, such as in 
the case of a voluntary general public tour of a firehouse, in which 
pre-arranged language services for the particular service may not be 
necessary. Regardless of the type of language service provided, quality 
and accuracy of those services can be critical in order to avoid 
serious consequences to the LEP person and to the recipient. Recipients 
have substantial flexibility in determining the appropriate mix, so 
long as the fundamental obligation of providing meaningful access to 
LEP persons is met.

VI. Selecting Language Assistance Services

    Recipients have two main ways to provide language services, namely, 
oral and written language services. Quality and accuracy of the 
language service is critical in order to avoid serious consequences to 
the LEP person and to the recipient.

A. Oral Language Services (Interpretation)

    Interpretation is the act of listening to something in one language 
(source language) and orally translating it into another language 
(target language). Where interpretation is needed and is reasonable, 
recipients should consider some or all of the following options for 
providing competent interpreters in a timely manner.
    Competence of Interpreters. When providing oral assistance, 
recipients should ensure competency of the language service provider, 
no matter which of the strategies outlined below are used. Competency 
requires more than self-identification as bilingual. Some bilingual 
staff and community volunteers, for instance, may be able to 
communicate effectively in a different language when communicating 
information directly in that language, but not be competent to 
interpret in and out of English. Likewise, they may not be able to do 
written translations.
    Competency to interpret, however, does not necessarily mean formal 
certification as an interpreter, although certification is helpful. 
When using interpreters, recipients should ensure that they:
     Demonstrate proficiency in, and ability to communicate 
information accurately in, both English and in the other language, and 
identify and employ the appropriate mode of interpreting (e.g., 
consecutive, simultaneous, or sight translation);
     Have knowledge in both languages of any specialized terms 
or concepts peculiar to the entity's program or activity and of any 
particularized vocabulary and phraseology used by the LEP person;\8\ 
and understand and follow appropriate confidentiality and impartiality 
rules; and
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    \8\ Many languages have ``regionalisms,'' or differences in 
usage. For instance, a word that may be understood to mean something 
in Spanish for someone from Cuba may not be so understood by someone 
from Mexico. In addition, because there may be languages which do 
not have an appropriate direct interpretation of some disaster-
specific, nautical or legal terms, for example, the interpreter 
should be so aware and be able to provide the most appropriate 
interpretation. The interpreter should likely make the recipient 
aware of the issue and the interpreter and recipient can then work 
to develop a consistent and appropriate set of descriptions of these 
terms in that language that can be used again, when appropriate.
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     Understand and adhere to their role as interpreters 
without deviating into a role as a counselor, legal advisor, or other 
roles (particularly during the assistance application process, in 
administrative hearings, or public safety contexts).
    Some recipients, such as certain private nonprofit organizations or 
administrative courts, may have additional self-imposed requirements 
for interpreters. Where individual rights depend on precise, complete, 
and accurate interpretation or translations, such as in the context of 
law enforcement encounters, application for disaster or food and 
shelter assistance, or administrative hearings, the use of certified 
interpreters is strongly encouraged.\9\ Where the process is lengthy, 
the interpreter will likely need breaks and team interpreting may be 
appropriate to ensure accuracy and to prevent errors caused by mental 
fatigue of interpreters.
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    \9\ For those languages or interpretation settings for which no 
formal accreditation or certification currently exists, recipients 
should consider a formal process for establishing the credentials of 
the interpreter.
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    While the quality and accuracy of language services is critical, 
the quality and accuracy of language services is nonetheless part of 
the appropriate mix of LEP services required. The quality and accuracy 
of language services at a State-operated emergency assistance center, 
for example, must be extraordinarily high, while the quality and 
accuracy of language services in recreational programs sponsored by a 
DHS recipient need not meet the same exacting standards.
    Finally, when interpretation is needed and is reasonable, it should 
be provided in a timely manner. To be meaningfully effective, language 
assistance should be timely. While there is no single definition for 
``timely'' applicable to all types of interactions at all times by all 
types of recipients, one clear guide is that the language assistance 
should be provided at a time and place that avoids the effective denial 
of the service, benefit, or right at issue or the imposition of an 
undue burden on or delay in important rights, benefits, or services to 
the LEP person. For example, when the timeliness of services is 
important, such as with certain activities of DHS recipients providing 
evacuation coordination, food and shelter, medical care, fire and 
rescue services, and when important legal rights are at issue, a 
recipient would more likely be providing meaningful access if it has 
immediate access to competent bilingual staff or on-site or telephonic 
interpreters, since these services can prevent delays for LEP persons 
that would be significantly greater than those for English proficient 
persons. Conversely, where access to or exercise of a service, benefit, 
or right is not effectively precluded by a reasonable delay, language 
assistance can likely be delayed for a reasonable period.
     Hiring Bilingual Staff. When particular languages are 
encountered often, hiring bilingual staff offers one of the best, and 
often most economical, options. Recipients can, for example, fill 
public contact and other positions involving potential contact with LEP 
individuals, such as 911 operators, law enforcement officers, fire 
safety educators, or application takers, with

[[Page 21763]]

staff who are bilingual and competent to communicate directly with LEP 
persons in their language. If bilingual staff are also used to 
interpret between English speakers and LEP persons, or to orally 
interpret written documents from English into another language, they 
should be competent in the skill of interpreting. Being bilingual does 
not necessarily mean that a person has the ability to interpret. In 
addition, there may be times when the role of the bilingual employee 
may conflict with the role of an interpreter. Effective management 
strategies, including any appropriate adjustments in assignments and 
protocols for using bilingual staff, can ensure that bilingual staff 
are fully and appropriately utilized. When bilingual staff cannot meet 
all of the language service obligations of the recipient, the recipient 
should turn to other options.
     Hiring Staff Interpreters. Hiring interpreters may be most 
helpful where there is a frequent need for interpreting services in one 
or more languages. Depending on the facts, sometimes it may be 
necessary and reasonable to provide such on-site interpreters in order 
to assure accurate and meaningful communication with an LEP person.
     Contracting for Interpreters. Contract interpreters may be 
a cost-effective option when there is no regular need for interpreters 
in a particular language. In addition to commercial and other private 
providers, many community-based organizations and mutual assistance 
associations provide interpretation services for particular languages. 
Contracting with and providing training regarding the recipient's 
programs and processes to these organizations can be a cost-effective 
option for providing language services to LEP persons from those 
language groups.
     Using Telephone Interpreter Lines. Telephone interpreter 
service lines often offer speedy interpreting assistance in many 
different languages. They may be particularly appropriate where the 
mode of communicating with an English proficient person would also be 
over the phone. Although telephonic interpretation services are useful 
in many situations, it is important to ensure that, when using such 
services, the interpreters used are competent to interpret any 
technical or legal terms specific to a particular program that may be 
important parts of the conversation. Nuances in language and non-verbal 
communication can often assist an interpreter and cannot be recognized 
over the phone. Video teleconferencing may sometimes help to resolve 
this issue where necessary. In addition, where documents are being 
discussed, it is important to give telephonic interpreters adequate 
opportunity to review the document prior to the discussion and any 
logistical problems should be addressed. It is also important to ensure 
that the equipment used is adequate and works appropriately and that 
staff have training or knowledge in the use of such services.
     Using Community Volunteers. In addition to consideration 
of bilingual staff, staff interpreters, or contract interpreters 
(either in person or by telephone) as options to ensure meaningful 
access by LEP persons, use of recipient-coordinated community 
volunteers, working with, for instance, community-based organizations, 
may provide a cost-effective supplemental language assistance strategy 
under appropriate circumstances. They may be particularly useful in 
providing language access for a recipient's less crucial programs and 
activities. To the extent the recipient relies on community volunteers, 
it is often best to use volunteers who are trained in the information 
or services of the program and can communicate directly with LEP 
persons in their language. Just as with all interpreters, community 
volunteers used to interpret between English speakers and LEP persons, 
or to orally translate documents, should be competent in the skill of 
interpreting and knowledgeable about applicable confidentiality and 
impartiality rules. Recipients should consider formal arrangements with 
community-based organizations that provide volunteers to address these 
concerns and to help ensure that services are available more regularly.
     Use of Family Members, Friends, or Other Applicants as 
Interpreters. Although recipients should not plan to rely on an LEP 
person's family members, friends, or other informal interpreters to 
provide meaningful access to important programs and activities, in some 
situations LEP persons, if they so desire, should be permitted to use, 
at their own expense, an interpreter of their own choosing (whether a 
professional interpreter, family member, friend, acquaintance, or other 
applicant), in place of or as a supplement to the free language 
services expressly offered by the recipient. LEP persons may feel more 
comfortable when a trusted family member, friend, fellow inmate, or 
other applicant acts as an interpreter. In addition, in exigent 
circumstances that are not reasonably foreseeable, temporary use of 
interpreters not provided by the recipient may be necessary. However, 
with proper planning and implementation, recipients should be able to 
avoid most such situations.
    Recipients, however, should take special care to ensure that 
family, legal guardians, caretakers, and other informal interpreters 
are appropriate in light of the circumstances and subject matter of the 
program, service or activity, including protection of the recipient's 
own administrative or mission-related interests in accurate 
interpretation. In many circumstances, family members, friends, or 
other applicants are not competent to provide quality and accurate 
interpretations. Issues of confidentiality, privacy, or conflict of 
interest may also arise. LEP individuals may feel uncomfortable 
revealing or describing sensitive, confidential, or potentially 
embarrassing medical, law enforcement, family or financial information 
to a family member, friend, acquaintance, or member of the local 
community.\10\ In addition, such informal interpreters may have a 
personal connection to the LEP person or an undisclosed conflict of 
interest, such as the desire to obtain greater assistance than the LEP 
person from a locally administered mitigation program. For these 
reasons, when oral language services are necessary, recipients should 
offer competent interpreter services free of cost to the LEP person. 
For some DHS recipients, such as those carrying out law enforcement and 
public safety operations and those performing disaster assistance 
functions, this is particularly true. The same is true in processing 
applications; conducting administrative hearings; managing situations 
in which health, safety, or access to important benefits and services 
are at stake; or when credibility and accuracy are important to protect 
an individual's rights and access to important services. An example of 
such a case is when fire service officers investigate an alleged case 
of arson. In such a case, use of family members or neighbors to 
interpret for the alleged victim, perpetrator, or witnesses may raise 
serious issues of competency, confidentiality, and conflict of interest 
and is thus inappropriate. Similarly,

[[Page 21764]]

where an emergency medical technician responds to the scene of reported 
domestic violence, care must be taken to avoid using a family member 
for interpretation who is the alleged perpetrator.
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    \10\ For example, special circumstances of confinement may raise 
additional serious concerns regarding the voluntary nature, 
conflicts of interest, and privacy issues surrounding the use of 
inmates as interpreters, particularly where an important right, 
benefit, service, disciplinary concern, or access to persona