Consequences and Methods of LEP Enforcement

1. Consequences and Methods of LEP Enforcement Prepared for the Ohio Statewide Civil Rights Conference June 7-8, 2006

2. Outline Sources of Guidance What are LEP requirements and where can I find them? Enforcement Mechanisms Who can enforce LEP requirements and how can they do it? Remedies What can happen if I violate LEP requirements? Case Studies Federal agency enforcement actions Almendares v. Palmer Recent enforcement actions by the State of Ohio

3. Sources of Guidance • Federal law • 42 U.S.C. §2000d et seq. and45 C.F.R. Part 80 • State law • Ohio Admin. Code §§5101:9-2-01; 5101:9-2-05 • Case law • Department of Justice Legal Manual and policies • Executive Order 13,166 • Non-regulatory guidance • Often agency-specific. See, e.g., 68 Fed. Reg. 47311 • Web-based agency updates • FAQs, letters, multi-language pamphlets, etc.

4. Enforcement Mechanisms • Lawsuits by individuals • Class actions and private actions • Complaints by individuals • Complaints to ODJFS or federal OCR • ACLU’s Rhode Island complaint letter to DOJ • Federal agency action • Lawsuits, informal action, other • Action by the State of Ohio • Investigation, funding termination, corrective action plans

5. Scope of Remedies

6. Federal Remedies • Informal action (e.g., 45 C.F.R. §80.8) • Preferred mechanism in many cases (45 C.F.R. §80.8(c)) • Federal corrective action plan • Federal funding termination • Federal government can terminate funding for actual or threatened non-compliance (e.g., 45 C.F.R. §80.8(a)) • Hearing rights

7. Complaint OCR Performs Own Review Yes Valid? Yes Problem? OCR Does Not Review No OCR Issues Letter of Findings OCR Sends Letter To Entity OCR Requests Data OCR and Entity Sign Negotiated Agreement No More Info? OCR Monitors CAP Implementation Yes OCR Site Visit, Info Req. No CAP Implemented? Case Closed Source: 2001 GAO Report

8. Federal OCR Problems Reported Source: 2001 GAO Report

9. Praise For OCR Source: 2001 GAO Report

10. State Remedies • Informal compliance • State corrective action plan • Financial penalties for “responsible entities” • Impose liability for FFP disallowance • “Pass through” federal fines • Impose “administrative sanctions” issued by ODJFS • Take over, or contract for someone else to take over, responsible entity’s operations • Withhold funding • Ask Attorney General to bring mandamus action

11. Legal Remedies • Court can impose wide array of remedies • Court identifies wrongdoing • Damages • Injunction • Attorney fees • Court-appointed monitor • Parties can settle lawsuit • Usually involves attorney fees • Usually involves corrective action • Often involves participation of plaintiffs

12. Case Studies Federal agency enforcement Ohio enforcement actions Almendares v. Palmer

13. DOJ Enforcement • In 2005, Russian voters in Boston complained to DOJ about elections • DOJ observed 2005 special elections in Boston and interviewed voters and community leaders from Latino and Asian communities • Observers were also sent to Maple Heights, Ohio, in 2002 • Outcome of observations unknown

14. DOJ Enforcement • In July 2005, DOJ sued City of Boston for violating voting-rights of LEP populations • Part of nationwide voting rights investigation • Allegations: • No foreign language voting materials or assistance for LEP persons at polls • LEP persons treated “disrespectfully,” not allowed assistance by person of their choice, improperly influenced • Allegations centered around Asian and Spanish-speaking persons

15. DOJ Enforcement • Legal bases • 42 U.S.C. §1973b(f)(2)No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote because he is a member of a language minority group.

16. DOJ Enforcement • Legal bases • 42 U.S.C. §1973aa-1a • Before August 6, 2007, no covered State or political subdivision shall provide voting materials only in the English language. • States must provide voting materials in the “language of the applicable minority group” as well as in the English language.

17. DOJ Enforcement • Remedies requested: • Declare Boston violated federal Voting Rights Act • Require Boston to provide assistance to Asian and Spanish-speaking persons during all phases of voting process • Require corrective action plan • Appoint federal monitors to oversee elections in Boston for next two years

18. DOJ Enforcement • Settlement: • Provide voting and election information in Spanish, Vietnamese, and Chinese • Seek passage of legislation authorizing the use of multi-lingual ballots • Provide free Spanish, Vietnamese, and Chinese translators (over telephone and at polls) • Recruit Spanish, Vietnamese, and Chinese poll volunteers, election officers, • Create “City Elections Language Coordinator” and several other bilingual employees

19. DOJ Enforcement • Settlement: • Create Mayor’s Advisory Task Force to “address concerns” of language-minority groups • Re-assess multi-language programs after each election • Maintain all records and allow DOJ access • Give DOJ advance notice of all polling locations • Provide and disseminate all foreign-language materials to the same extent as English-language materials

20. DHHS Enforcement • In 1999, DHHS’ Civil Rights Division received complaints from advocacy groups in New York City • Allegations • Medicaid beneficiaries told to bring own interpreters • Medicaid beneficiaries not provided interpreters • Allegations involved deaf persons as well as LEP persons

21. DHHS Enforcement • Legal bases • Alleged violations of 45 C.F.R. §80.3 • 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 otherwise subjected to discrimination under any program to which this part applies.

22. DHHS Enforcement • Legal bases • 45 C.F.R. §84.4 • No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives federal financial assistance.

23. DHHS Enforcement • Legal bases • 45 C.F.R. §84.52 • In providing health, welfare, or other social services or benefits, a recipient may not, on the basis of handicap: • Deny a qualified handicapped person these benefits or services; • Afford a qualified handicapped person an opportunity to receive benefits or services that is not equal to that offered non-handicapped persons; or • Provide a qualified handicapped person with benefits or services that are not as effective (as defined in §84.4(b)) as the benefits or services provided to others.

24. DHHS Enforcement • Legal bases • 28 C.F.R. §35.160(b)(1) • A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.

25. DHHS Enforcement • DHHS performed undercover investigation in response to complaints • Sent DHHS agents, posing as Medicaid applicants, speaking Spanish, Chinese, and American Sign Language • How well would your organization deal with such an investigation?

26. DHHS Enforcement • Agents told to leave and come back with interpreters • Agents found low availability of interpreters and bilingual staff • Agents found lack of LEP training • Printed materials in English only

27. DHHS Enforcement • “OCR stands ready to provide immediate, substantial assistance in securing voluntary compliance.” • If voluntary compliance cannot be obtained, “it may be effected by the suspension or termination of, or refusal to grant or continue [FFF] or any other means authorized by law.” • Lawsuits • Consent agreements

28. DHHS Enforcement • DHHS’ New York investigation resolved with corrective action plan • No court-monitored settlement

29. DHHS Enforcement • DHHS directed New York agencies to: • Assess LEP needs • Review census and utilization data to determine LEP groups • Sounds easy (more difficult in practice) • Boston example – used list of Hispanic names

30. DHHS Enforcement • Serve LEP population • Hire bilingual staff • Hire interpreters • Contract with volunteers for interpreter services • Provide telephone interpreter services • Develop policies • Conduct training • Monitor offices and staff for LEP compliance • Appoint statewide LEP coordinator

31. Filed August 24, 2000 Settled October 4, 2005 Almendares v. Palmer

32. Almendares v. Palmer • Complaint alleged: • Intentional discrimination • Discriminatory impact • Food Stamp information primarily in English • No Spanish-speaking caseworkers • No bilingual hearing notices • No interpreters at counties

33. Almendares v. Palmer • Legal Bases – Claim against County only • Ohio Admin. Code 5101:4-1-05(B)(1) • The county agency shall provide bilingual program information and certification materials, and staff or interpreters.

34. Almendares v. Palmer • Legal Bases • U.S. Department of Agriculture regulations • 7 C.F.R. §272.4 • Based on the estimated total number of low-income households in a project area which speak the same non-English language . . . the State agency shall provide bilingual program information and certification materials, and staff or interpreters as specified [above].

35. Almendares v. Palmer • Legal bases: • U.S. Department of Agriculture regulations • 7 C.F.R. §272.6(a) • State agencies shall not discriminate against any applicant or participant in any aspect of program administration, including, but not limited 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.

36. Almendares v. Palmer • Legal bases: • U.S. Department of Agriculture Regulations • 7 C.F.R. §15.3 • 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 otherwise subjected to discrimination under any program or activity of the applicant or recipient to which these regulations apply.

37. Almendares v. Palmer • Requested relief • Appoint plaintiffs’ lawyers as “monitors” for two years • Provide Spanish-language materials for Food Stamp program • Provide translators • Attorney fees • Quarterly compliance reports

38. Almendares v. Palmer • County settlement obligations • LEP oversight committee • LEP population • Case-assignment policies • Staff training • Translation of forms • Response to future complaint • Attorney fees • Class action notices

39. Almendares v. Palmer • State settlement obligations • Policies and procedures • Population assessments • “Babel” cards • Indicate PLI during data entry • Translate forms, brochures, and hearing decisions • Study translating all CRIS-E and HATS notices into Spanish • Seek funding for “language line” • Work to assign LEP cases to bilingual caseworkers • Provide written reports to plaintiffs’ lawyers and others • Create LEP task force • Conduct staff training • Attorney fees • Class action notices

40. Almendares v. Palmer • Duration of county and State settlement obligations • Immediate • Notices, payment of attorney fees • Two years • Study councils, Plaintiffs’ lawyers’ participation • Further • Translations, studies • Settlement agreement contains timeline

41. State LEP Enforcement • Hamilton County case • Alleged that County failed to provide interpreter • Alleged that County voicemail had no Spanish option • Alleged that lack of interpreter equaled lack of caseworker • Franklin County case • Alleged that County failed to provide interpreter

42. State LEP Enforcement • Both cases settled • Hamilton County entered into corrective action plan • Hamilton County given flexibility in creating its own corrective action plan • Franklin County reversed benefits determination in exchange for dismissal of LEP suit

43. Points To Remember • Many sources for LEP obligations • Many enforcement authorities • Develop relationships with enforcement authorities • Many remedies available • Remedies vary depending on who’s enforcing law • When possible, choose your remedy! • Be proactive and remedy problems before enforcement becomes necessary

44. This presentation is for educational and general informational purposes only. Nothing in this presentation constitutes legal advice. Neither attending this presentation nor reading these materials creates an attorney-client relationship. Please consult an attorney to answer specific questions regarding LEP issues.