May 23, 2001
Tommy Thompson, Secretary
Ms. Michael McMullan
The Association of American Physicians & Surgeons (“AAPS”) hereby petitions the United States Department of Health and Human Services (“HHS”), and its Office of Civil Rights (“OCR”) and the Health Care Financing Administration (HCFA), under 5 U.S.C. Section 553(e) and the Petition Clause of the First Amendment, to revoke the Rule requiring physicians to provide translators for patients with limited English proficiency, as published at 65 Fed. Reg. 52762-52774 (August 30, 2000) (the “Rule”), and to refrain from taking any form of administrative action pursuant to the Rule.
A. Action Requested.
AAPS seeks revocation of the broad application of the Rule to all private physicians who treat any Medicare or Medicaid patient:
65 Fed. Reg. at 52765 (emphasis added). Private physicians who treat patients under Medicare or Medicaid, no matter how small their practice, are thereby “covered entities” under the Rule.
AAPS seeks revocation of the burden placed by the Rule entirely on the physician to provide translators for Limited English Proficient (“LEP”) patients:
Id. (emphasis added).
AAPS seeks revocation of the specific requirements set forth in the Rule:
(1) Oral Language Interpretation--In designing an effective language assistance program, a recipient/covered entity develops procedures for obtaining and providing trained and competent interpreters and other oral language assistance services, in a timely manner, by taking some or all of the following steps:
Hiring bilingual staff who are trained and competent in the skill of interpreting;
Hiring staff interpreters who are trained and competent in the skill of interpreting;
Contracting with an outside interpreter service for trained and competent interpreters;
Arranging formally for the services of voluntary community interpreters who are trained and competent in the skill of interpreting; Arranging/contracting for the use of a telephone language interpreter service. ?
Bilingual Staff--Hiring bilingual staff for patient and client contact positions facilitates participation by LEP persons. However, where there are a variety of LEP language groups in a recipient’s service area, this option may be insufficient to meet the needs of all LEP applicants and clients. Where this option is insufficient to meet the needs, the recipient/covered entity must provide additional and timely language assistance. Bilingual staff must be trained and must demonstrate competence as interpreters. Staff Interpreters--Paid staff interpreters are especially appropriate where there is a frequent and/or regular need for interpreting services. These persons must be competent and readily available. Contract Interpreters--The use of contract interpreters may be an option for recipient/covered entities that have an infrequent need for interpreting services, have less common LEP language groups in their service areas, or need to supplement their in-house capabilities on an as-needed basis. Such contract interpreters must be readily available and competent.
(2) Translation of Written Materials--An effective language assistance program ensures that written materials that are routinely provided in English to applicants, clients and the public are available in regularly encountered languages other than English. It is particularly important to ensure that vital documents, such as applications, consent forms, letters containing important information regarding participation in a program (such as a cover letter outlining conditions of participation in a Medicaid managed care program), notices pertaining to the reduction, denial or termination of services or benefits, of the right to appeal such actions or that require a response from beneficiaries, notices advising LEP persons of the availability of free language assistance, and other outreach materials be translated into the non-English language of each regularly encountered LEP group eligible to be served or likely to be directly affected by the recipient/covered entity's program.
Id. at 52767.
AAPS seeks revocation of the specific example set forth in the Rule for solo practitioners:
A physician, a sole practitioner, has about 50 LEP Hispanic patients. He has a staff of two nurses and a receptionist, derives a modest income from his practice, and receives Medicaid funds. He asserts that he cannot afford to hire bilingual staff, contract with a professional interpreter service, or translate written documents. To accommodate the language needs of his LEP patients, he has made arrangements with a Hispanic community organization for trained and competent volunteer interpreters, and with a telephone interpreter language line, to interpret during consultations and to orally translate written documents. There have been no client complaints of inordinate delays or other service related problems with respect to LEP clients. Given the physician's resources, the size of his staff, and the size of the LEP population, OCR would find the physician in compliance with Title VI.
Id. at 52769.
B. Basis for Action.
1. The Supreme Court has Overturned the Legal Precedent for the Rule.
The Supreme Court considered the disparate-impact regulations that the Rule seeks to “clarify”. Alexander et al. v. Sandoval, 121 S. Ct. 1511 (2001). Respondent Sandoval, as representative of a class, sued the Alabama Department of Public Safety to enjoin its administering state driver’s license examinations only in English. Sandoval argued that the English-only policy violated the DOJ regulation because the policy had the effect of subjecting non-English speakers to discrimination based on their national origin.
The Supreme Court revisited its decision of Lau v. Nichols, 414 U.S. 563 (1974), concerning similar regulations. In Lau, the Court had interpreted § 601 itself to proscribe disparate-impact discrimination. However, in Sandoval, the Court reasoned that its later cases had rejected Lau’s interpretation of § 601. The Court stated that “it is clear now that the disparate-impact regulations do not simply apply § 601— since they indeed forbid conduct that § 601 permits.” Sandoval, 121 S. Ct. at 1519.
The Court concluded in Sandoval that “a failure to comply with regulations promulgated under § 602 that is not also a failure to comply with § 601 is not actionable.” Id. at 1519. “Agencies may play the sorcerer’s apprentice but not the sorcerer himself,” the Court said. Id. at 1522. In holding that no private right of action to enforce regulations promulgated under § 602 exists, the Court reaffirmed its statement in Alexander v. Choate, 469 U.S. 287, 293 (1985), that “‘Title VI itself directly reach[es] only instances of intentional discrimination.’” Id. at 1516.
Further, the Supreme Court noted in Sandoval that it had assumed for purposes of deciding the case that regulations promulgated under § 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under § 601, because the validity of the regulations was not before it. However, the Court warned that it had never held such regulations to be valid and that to do so would be in “considerable tension” with its rule that § 601 forbids only intentional discrimination. Id. at 1516-17 (citing Guardians Assn. v. Civil Serv. Comm’n of New York City, 463 U.S. 582 (1983) and Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)).
There is no question in light of Sandoval that the Rule is seeking to impose “responsibilities” beyond the dictates of § 601 of Title VI. The Supreme Court’s ruling in Sandoval has left no doubt that an English-only policy, or failure to provide translations into languages other than English, is not intentional discrimination forbidden by § 601. The Rule is therefore unauthorized.
2. The Rule Violated Due Process by Depriving Physicians of Prior Notice and Comment.
Pursuant to 5 U.S.C. Section 553(d), a substantive rule may not be made effective less than 30 days from its publication. There was no good cause for the Rule’s violation of this 30-day notice and comment period.
In light of the Supreme Court’s overturning of the basis of the Rule in Sandoval, the Rule cannot qualify as an interpretative rule exempt under Section 553(d)(2). Simply put, there is no longer any legal basis for the Rule to interpret.
Nor can the Rule qualify as a “statement of policy” under Section 553(d)(2). By the express terms of the Rule quoted above, it establishes new duties on physicians with respect to providing translation services for patients. Moreover, the Rule creates new malpractice liability risks for physicians to the extent the newly imposed translation obligations are not completely satisfied.
3. The Rule is Unconstitutionally Vague.
The Rule imposes broad obligations on physicians without the constitutionally required fair warning. Physicians have a right to know what they must do to be in compliance with the Rule. The requirements quoted above, however, are far too vague to delineate these new obligations. Is there a threshold level of non-English speaking patients that triggers application of this new requirement for a given physician? If so, what is that level and does it vary depending on the specific languages involved? Or must a physician provide a translator for each and every non- English speaking patient that walks in the door? Whose obligation is it – the physician’s or the patient’s – to identify a language communication problem?
“An enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). There are two independent rationales for this: “first, that notice be given to those who may run afoul of the enactment and, second, that the enactment channel the discretion of those who enforce it." United States v. Thomas, 864 F.2d 188, 194 (D.C. Cir. 1988).
The Rule fails both of these prongs. Physicians do not receive the requisite notice of “those who may run afoul of the enactment.” Id. Nor does the Rule properly “channel the discretion of those who enforce it.” Id. The Rule impermissibly subjects physicians to arbitrary enforcement.
Pursuant to 5 U.S.C. Section 553(e), AAPS respectively requests rescission of the Rule.
Very truly yours,
Jane Orient, M.D.