How to Implement Limited English Proficiency Rules
HUD’s Office of Fair Housing and Equal Opportunity (FHEO) issued its final guidance on limited English proficiency (LEP) in 2007. The final guidance was based on an Executive Order signed by President Clinton in August 2000, later reaffirmed by President Bush with Executive Order 13166, and most recently affirmed by U.S. Attorney General Eric Holder in a February 2011 memorandum to federal agencies reaffirming the mandates of the previous executive orders.
The orders mandate that recipients of federal financial assistance take reasonable steps to ensure that people with limited English proficiency have meaningful access to all federally funded programs. For HUD, such programs and activities would include proactive outreach to non-English-speaking people who are eligible applicants for, and residents of, government-subsidized housing. Among the many programs affected by LEP are HUD Section 8, Section 202, Section 811, and Section 236. Site owners may need to provide interpretation services or translation of vital documents used in federally assisted housing.
What LEP Guidance Says
Before you can create a Language Assistance Plan (LAP) that meets your site’s needs, you need to understand your LEP population. According to HUD, all providers of federal funds, including recipients of housing subsidies, must take reasonable steps to ensure meaningful access to core 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:
- The number or proportion of LEP persons eligible to be served or likely to be encountered by the site;
- The frequency with which LEP individuals come in contact with the program;
- The nature and importance of the program, activity, or service provided by the program to people’s lives; and
- The resources available to the grantee/recipient and costs. HUD’s intent is for each site to find an individual balance that ensures meaningful access by LEP persons to housing while not imposing undue burdens, financial or otherwise.
Identify ‘Vital’ Documents
A vital document is any document that’s critical for ensuring meaningful access to the recipients’ major activities and programs by beneficiaries generally and LEP persons specifically. Whether or not a document (or the information it solicits) is “vital” may depend upon the information, encounter, or service involved, and the consequence to the LEP person if the information in question isn’t provided accurately or in a timely manner.
For instance, applications for auxiliary activities, such as certain recreational programs in public housing, wouldn’t generally be considered a vital document, whereas applications for housing would be considered vital. Where appropriate, owners are encouraged to create a plan for consistently determining, over time and across its various activities, what documents are “vital” to the meaningful access of the LEP populations they serve.
To ensure that there are no compliance issues with regard to LEP obligations, HUD has put forth “safe harbors” with respect to the needed translation of vital written materials. If an owner or manager conducts the four-factor analysis, determines that translated documents are needed by LEP applicants, adopts an LAP that specifies the translation of vital materials, and makes the necessary translations, then the owner has provided strong evidence that it has made reasonable efforts to provide written language assistance.
A lease would be considered a vital document. It’s the primary agreement between an owner and a resident—that is, the sole “contract” between the parties—and is the primary mechanism for enforcing the tenancy. The second most important document is arguably the rental application. It’s the mandatory first step for establishing a relationship between owners and residents. And it’s the first step in determining the eligibility of applicants for subsidized housing. And depending on your site and the conclusions you may have reached in your four-part analysis, you may find that other documents would be considered to be vital as well, such as forms, fact sheets, and brochures.
You can visit HUD’s website at www.hud.gov/offices/fheo/lep.xml for documents in various languages created by HUD program offices. HUD has translated four versions of the model lease into nine languages: Arabic, Armenian, Cambodian, Chinese, Portuguese, Amharic, Korean, Farsi, and French. The translated model leases are to be used for informational purposes only. The English-language lease is the only controlling document and the only one to be signed by the parties. Therefore, in translated versions of the lease, there are no signature lines.
According to HUD, if the size of your community’s language group is 1,000 or more in the eligible population in the market area or more than 5 percent of the eligible population and more than 50 in number, then HUD recommends you provide translated vital documents. If the language group size is more than 5 percent of the eligible population and 50 or fewer in number, HUD recommends providing a translated written notice of right to receive free oral interpretation of documents. If the group size is 5 percent or less of the eligible population and fewer than 1,000 in number, HUD states that no written translation is required.
As an illustration of the safe harbor guidelines for written documents, HUD provided the following example:
An assisted housing development is located in a city of 20,000 people, about 2,000 of whom are recent immigrants from Korea. Few of the 2,000 have applied for assisted housing. Only eight of the development’s 200 residents and no applicants among the 20 on the waiting list are LEP speakers of Korean. Koreans constitute about 10 percent of the eligible population of the community but only 4 percent of the development’s residents.
In its Affirmative Fair Housing Marketing Plan for the development, the management agent specified Asian (Korean) as the population least likely to apply for housing and to whom it would outreach. Under the safe-harbor guidelines, the housing provider should reach out to the Korean community using written Korean language materials. However, even after extensive outreach, only one Korean family applied for the waiting list, although during that time the total waiting list increased by eight families to 38. Even after extensive outreach, the occupancy of the project is 4 percent, and its waiting list is less than 3 percent, LEP Korean.
Therefore, under safe-harbor guidelines, no translation of occupancy documents into Korean is necessary. However, the housing provider should be prepared to provide for oral interpretation, when needed. In addition, outreach to the eligible Korean community should continue using written Korean language materials.
Document Your LAP Policy
Having a documented LAP is a valuable tool for owners and managers. As an owner or manager, you want to protect yourself if a resident files a complaint. You’ll want to show that you’ve taken steps to identify: (1) the various LEP groups living at your site(s); (2) the resources available to you to provide translations; and (3) which vital documents you would translate into foreign languages, if you’re able to do so.
Identify your current population. You’ll want to analyze the makeup of your site’s current residents. You may be able to use the resident self-declarations concerning race and ethnicity, or total the number of languages spoken at your site based on personal communication with residents. Local schools have often developed detailed resources on LEP populations in the area. Though their student/family data may not exactly match your housing program’s eligibility requirements, schools remain a useful resource.
Practical Pointer: For help in communicating with applicants or residents with limited English proficiency, you can download and print out an “I Speak” card at www.lep.gov/ISpeakCards2004.pdf. This card can help you identify what language the applicant or resident speaks, and that’s an important first step if you need to get an interpreter or translator. The card lists the phrase, “I speak,” in 38 different languages. If you aren’t sure what language an applicant or resident speaks, show her the card. She can identify her native language by pointing to it on the card or checking a box next to it.
Identify staff resources. Find out whether any of your employees has a foreign language skill. Create a document listing names, which you can also categorize under function within your organization—such as staff, board member, or volunteer.
Indicate languages spoken. Document who speaks what foreign language, including any learning resources you’re providing to teach foreign language skills. Also, you’ll want to indicate where to reach every person on your list.
What will be done to assist LEP contacts. Draft a brief statement outlining what you and/or your organization will do when an LEP person makes contact. For example, you could keep a log, contact someone on your list who’s identified as potential help, or find an interpreter.
Keep policy updated. Be sure to look over the policy periodically to determine whether you need to have new documents, programs, or services explained to applicants and residents as your LEP population changes.