Language Access Legal Framework for ITIN Renewals

ITIN Renewals: Language Access Issues Jennifer J. Lee Temple University Beasley School of Law jenniferjlee@temple.edu

In a Nutshell: Language Access Legal Framework for Language Access Department of Treasury and Internal Revenue Service Guidance on Language Access Remedies for Language Access Violations

Legal Framework: Title VI 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. 42 U.S.C. 2000d. Lau v. Nichols, 414 U.S. 563 (1974), defines national origin discrimination to include a person s inability to speak, read, write, or understand English.

Legal Framework: Implementation Executive Order 13166 (2000). Title VI Regulations (2002). Reaffirms the obligation of federal agencies to enforce language access requirements with recipients of federal funding. DOJ issued regulations clarifying the language access requirements for recipients of federal funding. Applies to programs that receive IRS funding, such as LITC or VITA. Extends the obligation of language access requirements to programs run by federal agencies themselves.

Legal Framework: Four-Factor Test Four-Factor Test: The number or proportion of LEP persons in the eligible service population; Language access means providing limited English proficient (LEP) persons with meaningful access to services. The frequency with which LEP persons come into contact with the program; The importance of the service provided by the program; and The resources available to the program.

Legal Framework: Language Access Plans EO 13166 Required all Federal Agencies to Create a Language Access Plan. Effective Language Access Plans Include: Identifying LEP persons who need language assistance Identifying ways in which language assistance will be provided Training staff Providing notice to LEP persons Monitoring and updating LEP policies Oral interpretation services (bilingual staff, telephone interpreters) Written language services

Legal Framework: Written Documents Vital Documents are ones that are critical for accessing the agency s program or activities. Agencies should prioritize translating vital documents: Documents that must be provided by law; Complaint, consent, release or waiver forms; Claim or application forms; Conditions of settlement or resolution agreements; Letters or notices pertaining to the reduction, denial, or termination of services or programs or that require a response from the LEP person; Time-sensitive notices, including notice of hearing, or other investigation or litigation-related deadlines; Form, written material, or notices related to individual rights or responsibilities; and Notices regarding the availability of free language assistance services for LEP individuals.

Legal Framework: Holder Memos Memo (2010). Requires federal agencies to appoint an LEP coordinator. Memo (2011). Reaffirms commitment to the EO 13166. Requires agencies to: Establish a Language Access Working Group headed by a LEP Coordinator. Evaluate and/or update your current response to LEP needs. Establish a schedule to periodically evaluate/update LEP services and policies. Ensure that agency staff can competently identify LEP contact situations. Notify the public of your LEP policies, plans, and procedures. Consider hiring criteria to include the extent to which non-English language proficiency would be necessary for particular positions For written translations, collaborate with other agencies and streamline processes for obtaining community feedback. For agencies providing federal financial assistance, draft recipient guidance

Department of Treasury Guidance LEP Guidance 70 Fed. Reg. 6067 (2005). Outlines requirements for recipients of federal funding from Treasury. Language Access Plan. Addresses services that Treasury provides directly to the public. The Office of Civil Rights and Diversity (OCRD) is responsible for guidance and oversight of each bureau s implementation of their language access plans. OCRD will: Coordinate efforts across bureaus to implement the LAP; Monitor and coordinate language access activities; Provide ongoing technical assistance; Review complaints filed by members of the public; Support efforts to train front line staff; and Provide access to interagency resources.

IRS Guidance The IRS commits to provide top quality service to each taxpayer, including those who lack a full command of the English language. The needs of these taxpayers will be included in the agency strategic plans, consistent with available resources. Language assistance may be provided, within resource constraints. IRM 1.2.22.1.3 Language Access Plan. IRM 22.31.1 (2016). Extensively addresses how IRS engages in: Languages Services Program Oversight LEP Strategic Process LEP Needs Assessment Standard Translation Processes Over the Phone Interpretation Service Website

IRS Guidance: Oversight Languages Services Program Oversight (IRM 22.31.1.3) Language Services Executive Advisory Council (LSEAC) oversees the language access program. Equity, Diversion, and Inclusion, Civil Rights Division (EDI CRD) oversees recipients of federal funding. Multilingual and Agency Services (MAS) oversees IRS administration of policies for LEP persons.

IRS Guidance: Needs Assessment Needs Assessment (IRM 22.31.1.5). IRS integrates data from these assessments and produces a Customer Base Report every 3 years. Demographic Assessment of LEP persons to be served or encountered. Internal Assessment of the multilingual products and services across the agency available to of LEP persons eligible to be served or encountered LEP persons (e.g., field assistance, taxpayer advocate, accounts management). External Assessment of the effectiveness of language access services from the perspectives of internal and external stakeholders (e.g., VITA, LITC, other surveys).

IRS Guidance: Written Documents Standard Translation Process (IRM 22.31.1.7)

IRS Guidance: Vital Documents Categorizing Documents (IRM 22.31.1.7.4.1) Information Contained Contains critical information for accessing tax services, rights, and/or benefits or is required by law Contains technical tax information or general educational information relevant nationwide Non-Vital (National Relevance) No Non-Vital (Local Relevance) No Vital Document Yes N/A Yes No Only contains general education or administrative information relevant to local area only N/A N/A Yes

IRS Guidance: Phone Interpretation & Website Over-the-Phone Interpretation (IRM 22.31.1.8). IRS contracts with a service that has access to over 300 languages for its staff. Websites in Other Languages (IRM 22.31.1.9). IRS maintains 5 websites in Spanish, Vietnamese, Korean, Mandarin, and Russian.

Remedies: Possibilities IRS Operations Director, Civil Rights Division. Can mail, email: edi.civil.rights.division@irs.gov, or complete complaint form online. Treasury Office of Civil Rights and Diversity. Can call (202) 622-1160, fax (202) 622-0637, or email staff. Department of Justice - Civil Rights Division. Can file a complaint for recipients of federal funding. You can mail in the complaint or call: (888) 848-5306 (English or Spanish). National Taxpayer Advocate. Involved in advocacy on LEP issues in the past.

Resources General LEP Guidance Documents: https://www.lep.gov/. Treasury LEP Guidance: https://www.lep.gov/guidance/depttreas_lep_guide_final.pdf. Treasury Language Access Plan: https://www.treasury.gov/about/organizational- structure/offices/Mgt/Archive/Updated%20Treasury%20LAP%202015%20co mpliant.pdf. IRM Part 22: https://www.irs.gov/irm/part22/irm_22-031- 001#idm140462226432960. FAQs for LEPs: https://www.irs.gov/pub/irs-utl/FAQs_Taxpayers_LEP.pdf.