Ensuring the Full Range of Benefits
From CalWORKs | Welfare Resources
The absence of adequate interpretation and translation services is a major hurdle for non-English speaking applicants and recipients. Facing not only barriers in the application and continuing eligibility processes, limited English proficient (LEP) clients are also at a disadvantage in negotiating decent welfare to work plans and accessing supportive services. State and federal law do provide some handles for intervening on behalf of LEPs.
Under the Dymally-Alatorre Bilingual Services Act and its implementing regulations (in the public assistance context, Division 21 of the MPP), the State Department of Social Services (DSS) is required to translate written materials, including notices of actions and other important documents, into any non-English language which is spoken by 5% or more of the persons served by the agency. Govt. Code § 7296 et seq. Under Dymally, agencies must also hire sufficient bilingual staff and provide written translations of materials. Govt. Code §§ 7293, 7295, 7295.2. Unfortunately, agencies need only to provide language services required under Dymally to the extent that funding is available. Govt. Code § 7299.
However, if the Dymally-Alatorre Act is not as strong as one would hope, Govt. Code § 11135, which covers all state-funded agencies, does prohibit the denial of and discrimination in public benefits programs based on ethnic identification, which arguably includes language discrimination. In an appropriate case, advocates can argue that the failure to provide translation services, notice in the recipient's first language, or failure to offer certain services (such as job training programs) to non-English speakers deprives the recipient of the equal access guaranteed by § 11135.
Another tool is found in state regulations. County welfare departments are agents of the state in dispensing public assistance, and MPP § 21-115.2 requires the county to use forms that are in recipients' primary language when such forms have been translated by DSS, a requirement often honored only in the breach. Advocates should periodically seek a list of translated forms and instructions and use the failure to use such documents as, in effect, resulting in the lack of adequate notice to recipients of particular county actions.
Finally, Title VI of the Civil Rights Act of 1964 prohibits discrimination based on national origin when federally-funded social services agencies, such as DSS or the county, fail to provide oral and written translation of information to LEPs. The Department of Health and Human Services (HHS) and the Department of Justice (DOJ) recently published policy guidances reminding and clarifying existing legal obligations of state and local welfare departments to provide language services, and requiring them to "take reasonable steps to ensure meaningful access to their programs and activities by LEP persons." 67 Fed. Reg. 41455, 41459 (2002). Such steps include the duty to ensure that oral language services are provided by competent interpreters in a timely manner (Id. at 41461, 41464); that "[v]ital written materials" such as consent or complaint forms and notices of action be translated into languages frequently-encountered by the agency (Id. at 41463); and that even if the language group served or likely to be served by the agency is small, to provide competent oral interpretation of written materials. Id. at 41464.
In addition, HHS has also set forth requirements for Title VI compliance. Welfare programs are barred from using criteria or methods of administration which discriminate on the basis of national origin (45 C.F.R. § 80.3(b)(2)) or restrict "any individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving the service, financial aid, or other benefit under the program." 45 C.F.R. § 80.3(b)(1)(iv) (emphasis added). Ensuring that LEP persons can communicate effectively with their welfare program is critical to providing meaningful access to LEP persons. 67 Fed. Reg. 4968, 4971. Revised HHS Policy Guidance mandates that LEP persons be given adequate information so that they are able to understand the services that are available and the benefits for which they are eligible. Id. As discussed in the DOJ Policy Guidance, welfare departments are required to provide trained and competent interpreters in a timely manner. (See earlier policy guidance, 67 Fed. Reg. 4968, 4973; in general, see final DOJ policy guidance, 67 Fed. Reg. 41455-41472.) Similar to the DOJ Guidance, HHS' safe harbor provision do not relieve welfare departments of the obligation to provide competent oral interpretation of written materials. Id. at 4973.
While it is true that the U.S. Supreme Court has ruled that an individual recipient cannot sue to enforce these federal requirements(Note 14), violations can be raised at state hearings appealing a county action, or in a civil rights complaint to the appropriate county, state or federal civil rights watchdog.
14. Alexander v. Sandoval, 532 U.S. 275, 286 (2001).
