On January 22, 2007 , the U.S. Department of Housing and Urban Development (HUD) issued final guidance clarifying the obligation of property owners who receive any federal assistance to accommodate people with limited English proficiency (LEP). The guidelines went into effect on March 7, 2007 .
The rules, which NMHC /NAA continue to strenuously oppose, effectively require covered owners to translate a broad array of "vital" documents in multiple languages, such as resident applications, leases, lease attachment applications, facility rules, facility regulations, termination/eviction notices and more. They also require verbal translations of these documents for those who do not read in their native language.
The final HUD guidance is intended to comply with a 2000 Executive Order noting the need for federal agencies to comply with Title VI of the 1964 Civil Rights Act by ensuring that people with LEP have meaningful access to their programs and activities.
NMHC /NAA submitted comments opposing draft LEP rules when HUD first issued them in late 2003, noting that the Department’s attempt to shift responsibility for translating documents to owners is impractical and expensive and threatens the uniform system of HUD-adopted model lease forms by requiring owners to create their own translations of them. We argued that HUD should bear the burden of translating basic program documents, especially since HUD created many of these "model" documents in the first place. In addition, we note that owners should not bear responsibility for assuring competency of translators and interpreters.
NMHC /NAA filed an unsuccessful lawsuit to have the guidance overturned. Importantly, in the court ruling dismissing our lawsuit, the court stated that the LEP Guidance is a non-binding, malleable standard that imposes no requirements on housing providers. In other words, it is a guidance document and not a new regulation. Both the ruling and statements made by the judge during oral arguments last October undercut any attempt by HUD to pursue enforcement actions based solely on the final guidance. (See below and this memo summarizing the impact of the guidance.)
We are also working with Congress to obtain a legislative solution.
On June 17, 2009, HUD rolled out a Limited English Proficiency (LEP) web site that provides important HUD documents in 12 different languages. The web site features factsheets, brochures on fair housing, model lease agreements, information about HUD's Housing Choice Voucher Program (Section 8) and a Resident Rights and Responsibilities brochure in Amharic, Arabic, Armenian, Cambodian, Chinese, Farsi, French, Korean, Portuguese, Spanish, Tagalog and Vietnamese, in addition to English.
NMHC /NAA File Federal Lawsuit on LEP Guidance
On May 3, 2007, the National Multi Housing Council and National Apartment Association (NMHC /NAA) filed a lawsuit against the U.S. Department of Housing and Urban Development (HUD), asking a federal judge to strike down the LEP Guidance.
On October 12, 2007 a federal judge heard oral arguments in our lawsuit seeking judicial relief from HUD’s onerous LEP Guidance. During the October 12 hearing, Justice Department lawyers representing HUD repeatedly claimed that the guidance was not a regulation and did not compel property owners to do anything. A transcript of those arguments is posted here.
On March 28, 2008 the U.S. District Court for the District of Columbia granted HUD's request to dismiss the case on the grounds of ripeness and standing. In its ruling, the court held that the LEP Guidance merely clarifies an existing obligation with respect to providing those in need of LEP guidance.
According to the Court, "HUD's intent in promulgating this guidance may indeed have been regulatory–it may have been done to make the requirement more palpable and to encourage greater 'voluntary' compliance'." However, until an actual plaintiff with standing comes forth regarding damages incurred in trying to comply or failing to comply with the HUD LEP "policy guidance," the court has said there is no basis for the NMHC/NAA suit.
A memo summarizing the impact of the ruling on housing providers is posted here.
NMHC /NAA and Congress Seek to Overturn the Guidance
In addition to our lawsuit, NMHC /NAA have been working with Congress to obtain a legislative solution. At our urging, on March 6, the House Financial Services Committee sent HUD a letter requesting that the Department withdraw the guidance until it has been revised to incorporate the Committee’s recommendations. Among other things, Congress wants HUD to assume the responsibility for the costs to provide language services to LEP persons and provide owners with a definitive list of documents that HUD will translate. They also want HUD to assume responsibility for the accuracy of HUD documents and services and have HUD clarify that reliance on HUD documents satisfies an owner’s obligation to comply with the guidance.
NMHC /NAA secured a provision in a House-passed Section 8 reform bill (H.R. 1851) that requires HUD to provide translated documents instead of delegating that responsibility to property owners. (The Senate has yet to take up the measure, however.) A stand-alone bill (S. 2018) requiring HUD to provide translations is also pending in the Senate. We achieved a preliminary victory by helping secure funding for HUD to produce the LEP-required translations in the final 2007 omnibus appropriations bill passed by Congress on December 19. We will continue to advocate for legislative relief on this issue via S. 2018 and H.R. 1851.
HUD Clarifications Offered
At a February 28, 2007 HUD meeting, the Department provided an overview of the program and indicated that it largely affects property owners who participate in the Project Based Section 8 program or receive HOME or CDBG funds, rather than those who accept Section 8 vouchers or receive FHA insurance. It will also focus on the translation of the model lease, which HUD says it is in the process of drafting in eight languages. It remains unclear as to what other document translations will be required.
At the meeting, HUD suggested that recipients are required to take reasonable steps to ensure meaningful access to their programs. They plan to use a methodology that utilizes their four factor analysis combined with a Language Assistance Plan in determining compliance. The four factor analysis categories are as follows:
- The number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee;
- Te frequency with which LEP persons 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.