1. Immigration Issues for the LSC Household: Limited-English Proficiency Issues, Public Benefits, and Public Housing Presented by Aimee Stowe

2. Limited English Proficiency “LEP”

3. Authority Title VI Of The 1964 Civil Rights Act, 42 U.S.C § 2000d et seq. (Section 601) –No person in the United States 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 (italics added).

4. Lau v. Nichols, 414 U.S. 563 (1974) –Failing to provide appropriate language services is a form of national origin discrimination prohibited by Title VI. Executive Order 13166 (2000) –A directive to federal agencies to: Publish a plan that assures LEP persons meaningful access to all federally administered programs and services Publish guidance for federal-funding recipients that assures LEP persons meaningful access to the programs and services the recipients administer –Required the United States Department of Justice (DOJ) to guide federal agencies in forming LEP plans and meeting their LEP obligations

5. DOJ Guidance The DOJ’s initial guidance, published in 2000, clarified Title VI responsibilities. Alexander v. Sandoval, 532 U.S. 275 (2001), limited private rights of action available under Title VI, holding there is no private right of action to enforce Title VI disparate-impact regulations (but did not affect the private right of action for intentional discrimination under § 601). The DOJ clarified in its final LEP guidance, published in 2003, that Sandoval did not consider the validity of EO 13166, the disparate-impact regulations of Title VI, or the authority for federal agencies to enforce LEP guidance. Administrative enforcement still valid after Sandoval, and is the primary enforcement mechanism.

6. The Guidance United States Department of Health and Human Services (HHS), like other federal agencies, published a final guidance to its funding recipients on meeting Title VI requirements. For access to other agencies’ guidance, visit www.lep.gov. HUD has its own guidance; the USDA (FS) does not yet have written guidance.www.lep.gov Food Stamps The Food Stamp Act, specifically at 7 U.S.C. § 2020(c) 7 C.F.R. § 272.6(a) –“[DFCS] shall not discriminate against any applicant or participant in any aspect of program administration, including, but not limit to, the certification of households, the issuance of coupons, the conduct of fair hearings, or the conduct of any other program service for reasons of age, race, color, sex, handicap, religious creed, national origin, or political beliefs.”

7. The Guidance – Important Points Defines LEP -- Individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English. Explains How an Agency Determines the Extent of Its Obligation To Provide LEP Services -- The Four Factor Test The number or proportion of LEP persons are served or are likely to be served by the grantee; The frequency with which LEP persons come in contact with the grantee or programs it administers; The nature of the program, or in other words, the impact it has on peoples’ lives; The resources available to the grantee – financial and otherwise. Focuses on the Quality of Services – Competency of interpreters and translators –Oral Interpretation is the bare minimum. –Interpreters and translators should be familiar with dialects of the population they serve and should have a technical vocabulary. –Translation can include a full translation of a document such as re-production of the document in a language other than English or summary translation; “babel” notice. Sets out The Five Elements of an Effective LEP Plan 1. Identifying LEP customers or participants, by determining languages spoken in the communities served and the frequency and nature of language service needs; 2. Providing for the process and measures that should be taken in providing language access services; 3. Training grantee staff on the plan, implementation, and compliance; 4. Giving notice to LEP persons that language access services are available; and, 5. Monitoring and updating the LEP plan.

8. In Georgia DHR administers the Medicaid, Food Stamp, and TANF programs. DHR receives grant money from HHS and is subject to its LEP law and guidance. GA has its own LEP (and sensory impaired) policy and procedure, available at http://lepsi.dhr.georgia.gov/portal/site/DHR -LEPSI. http://lepsi.dhr.georgia.gov/portal/site/DHR -LEPSI

9. What this means for your case! What does my county DFCS/DOL career center/PHA have to do? –Check the LEP population in your area. Does the language group make up 5% of the population to be served? Are there 1,000 members of the language group? –Where to get demographic information: http://www.lep.gov/demog_data.html http://dhr.georgia.gov/portal/site/DHR-LEPSI/

10. For any group which reaches this threshold, the agency should be providing oral interpretive services and written translation of vital documents. Even where the language group does not meet this threshold, oral interpretation should be provided. What are vital documents? –From the HHS Guidance: Consent and complaint forms. Intake forms with the potential for important consequences. Written notices of eligibility criteria, rights, denial, loss, or decreases in benefits or services, actions affecting parental custody or child support, and other hearings. Notices advising LEP persons of free language assistance. Applications to participate in a recipient’s program or activity or to receive recipient benefits or services. –My take: Any document mandatory for application for or maintenance of benefits; and, explanations of legal rights and consequences. Examples: the application, requests for verifications, action notices.

11. Arguing LEP -- at the Case Level What’s the argument? –To ensure that LEP persons can apply for and keep benefits, certain points of contact between DFCS and the applicant and certain vital documents must be in the applicant’s language of competency. –Whenever DFCS/DOL/PHA has not provided language services, make a LEP argument, that includes raising due process and notice issues.

12. Case Level Appeal Letter, template language –This letter shall serve as notice of appeal and request for fair hearing on the denial of Medicaid to Ms. Client. According to the termination notice, dated June 1, 2007, Medicaid was terminated for failure to provide information, presumably failure to verify income. Termination of Ms. Client’s Medicaid was en error because Ms. Client was not properly notified of what documents she had to provide to maintain benefits. It appears from the Medicaid file that instructions to Ms. Client were in English. English notice to a limited-English proficient (LEP) customer is inadequate under both federal law and Georgia DHR’s own LEP plan.

13. Case Level Talking LEP to A Caseworker – the most common excuses –“We didn’t know she didn’t speak English.” –“But they speak English!” –“We have no money/staff/time to get this stuff in other languages.” –“We don’t have forms in other languages,” or “we can’t read forms that come in other languages.” –“Nothing says I have to.”

14. “We didn’t know” Under the DHR LEP/SI policy, the caseworker must determine if an applicant/recipient is LEP and each file should contain a “LEP/SI Intake and Tracking Form.” If a LEP applicant/recipient does not want LEP services, s/he must waive them in writing. These documents will not be in the file, so use this to your advantage.

15. “They Speak English” Remind the caseworker of the definition of LEP. Some LEP persons can speak or write some limited English.

16. “We don’t have the resources” Most DHR forms have been translated; see the Forms appendix in ODIS. All DFCS offices have access to telephone interpreters. Share with other agencies. Use federally-developed resources.

17. Case Level OSAH –Request an interpreter as soon as you get the notice of hearing. –ODIS Medicaid Manual Appendix B provides that “a bilingual staff member or interpreter must be provided for any A/R who requests an interpreter.” Argue against a bi-lingual staff member as the interpreter at the hearing. –Bias –Due process

18. Arguing LEP – at the County Level If you have carefully documented examples of LEP violations, set up a meeting with the county director and key team members. Use the meeting to establish best practices for that county.

19. The OCR Complaint The Good –Can be attention- getting, motivating –Clients can remain anonymous –If the agency is not open to improvement at all, OCR can make findings and require improvement The Bad –May last for years –Clients may be reluctant to participate –Time may be better spent working directly with the agency

20. Common Issues

21. Medicaid LEP –Review form sent to family is in English. –SUCCESS not coded properly. Letters are sent to LEP family in English. –Application is in Spanish, but caseworker sends the verification checklist out in English. –Caseworker’s outgoing voicemail is in English.

22. Medicaid Common Issues, Cont’d. Income Verification Issues –Day Laborer Verifications Some counties have a calendar—this is not an approved form and varies by county. Some policy-makers think day laborers are not self- employed; say ODIS 2415 does not apply. Caseworkers are requesting that day laborers have each and every “employer” or customer sign the form, provide receipts of sales, etc. –DHR 809 – Verification of Earned Income Form is confusing but is under redesign now Caseworkers are closing cases if form is “suspicious”

23. Medicaid Common Issues, Cont’d Parents not seeking benefits –Asking parents to provide birth certificates or ID

24. FS Make sure the calculation was done correctly.

25. TANF Cooperation with the Office of Child Support Enforcement –Some local offices of OCSE are not accepting applications from custodial parents of citizen children if the parent does not have a government-issued ID. –GLSP and ALAS working together on this issue. Contact Aimee Stowe at GLSP and Deborah Johnson at ALAS. –Get your client to document refusal to accept application; provide this documentation to caseworker.

26. DOL (UIB) Some notices now contain babel tags, but for the most part, hearing notices and determinations are sent in any language other than English. Workforce development forms that applicants for UIB complete at application are available in Spanish. General booklet on UIB and appeals are available in Spanish but may not be handed out to applicants (they are available online, but you have to navigate the site in English to get to the links for them).

27. PHA No interpreters on staff. Leases and important notices not available in languages other than English.

28. Working with Interpreters

29. Citation to Authority For TPOs under the FVA: –O.C.G.A. § 15-6-77(e)(4) For all other matters: –Georgia Supreme Court Rules on the Use of Interpreters for Non-English Speaking Persons