December 1, 2003
Re: August 8, 2003 LEP Guidance (68 Fed. Reg. 47311)
Dear Ms. Jang:
This is in response to the request by your office for comments on the Department of Health & Human Services (“HHS”) Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons (“LEP Guidance”).
The Association of American Physicians & Surgeons (“AAPS”) is a national, nonprofit organization of thousands of physicians, which was founded in 1943. It is dedicated to preserving freedom in the practice of ethical medicine and opposes government interference in the one-on-one patient-physician relationship.
Many AAPS members participate in the Medicare, Medicaid and other government medical programs funded by the Department of Health and Human Services and are consequently covered by the scope of the LEP Guidance. And the scope of those covered under these regulations is so broad that many AAPS members who do not participate directly in these government programs are also covered. 1
The HHS LEP Guidance issued pursuant to Executive Order 13166 (EO 13166) directly intervenes and seeks to change the way that AAPS members have heretofore practiced medicine with respect to their limited English proficient (LEP) patients. At a minimum, it will cause delays and impose hidden costs on our members. For example, AAPS members practicing medicine in areas with large numbers of LEP patients will now be required to review and perhaps change the way they manage their LEP patient relationships. To protect themselves from the increased risk of civil rights complaints and claims, many will feel compelled to create and implement yet another patient waiver form, and to maintain voluminous documentation on LEP patients.
1 The LEP Guidance sub-recipient and coverage rules indicate that even physicians providing only periodic consulting services to a hospital or other health care institution covered by EO 13166, are also subject to the order’s rules and regulations.
Thus the LEP Guidance substitutes bureaucratic rule making for physicians' freedom to create and manage their patient relationships efficiently in the manner that enables them to provide optimum service. At its worst, the LEP Guidance will force AAPS members to make significant financial outlays for expanded translation and interpreter services simply in an attempt to meet vague bureaucratic requirements–or to withdraw from serving a patient population that may trigger unaffordable requirements
The greater likelihood of civil rights complaints coupled with the threat of prosecution for mishandling language-related issues is certain to add another layer of risk for treating LEP patients. A refugee assistance agency in Maryland for example, used federal funding to print and distribute cards to its clients with the following message:2
The LEP Guidance also specifies that physicians and other medical providers are responsible for the competency of the (medical) translation and interpreter services they provide. This means that physicians are also exposed to an increased risk from medical errors and omissions related to language that will impose added burdens on physicians in the form of escalating insurance costs. Inability to be certain they have met this requirement would be another reason for AAPS members to limit their exposure by not accepting LEP patients or working in settings where they might need to see such patients.
The Office of Management and Budget (OMB) itself has recognized that it is “particularly challenging” to estimate the costs and burdens of Executive Order 13166, on which the LEP Guidance is based, due to the enormous “breadth and depth of activities” covered under it. 67 Fed. Reg. 2671; 66 Fed. Reg. 59825. But OMB did say costs were likely to be high. Rather than adding to this burden, HHS should strive to minimize such costs by specifically permitting the use of family members and friends to interpret for LEP patients unless there is some indication of a problem.
2 Refugee Works, Vol. 3, Issue #1, Winter 2002, p. 2, published by the National Center for Refugee Employment and Self-Sufficiency.
Because they are physicians, AAPS members understand that communication is essential to the patient-physician relationship. Historically, the primary responsibility for overcoming language barriers has been borne by the patient, not the physician. Good, cost-effective medical care requires reliance on family members or friends when they are available, rather than hired interpreters who are likely to be unfamiliar with a patient's background and needs. Physicians who treat LEP patients can attest to the efficacy and adequacy of such private arrangements. There are cases in which such reliance is not appropriate. But these are exceptions, not the rule. And AAPS believes it is the patient and physician’s role, not the government’s, to determine when alternative arrangements are required. We believe that EO 13166 and the LEP Guidance lack both authority and justification for intruding in the patient-physician relationship.
Many AAPS members work for public or private institutions that have found it in their interest to offer a variety of translation and interpreter services to meet the needs of an LEP patient population. But these are voluntary decisions, often made for competitive reasons that must be justified in terms of competing institutional needs. In contrast, the threat of civil rights prosecution (however disguised by “voluntary compliance” rhetoric) for failing to meet a wholly subjective standard of compliance with regard to translation and interpreter services is counterproductive, and is likely to diminish the delivery of health care.
From a legal perspective the LEP Guidance is also fatally deficient. Although the guidance recognizes that federal agencies and many outside experts have questioned the legal authority for EO 13166 in the wake of the Supreme Court decision in Alexander v. Sandoval, 121 S. Ct. 1511 (2001), it nevertheless comes to the wrong conclusion. The Sandoval decision reaffirmed the Supreme Court’s earlier pronouncements that Title VI prohibitions ban disparate treatment, not disparate effects on a particular group. And the Court went out of its way to repudiate the interpretation that the LEP Guidance cites with respect to Lau v. Nichols, 444 U.S. 563 (1974). The LEP Guidance errs by staying the course that has been repudiated by the Sandoval and similar decisions. 3
3 See Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983), cert. denied, 466 U.S. 929 (1984) (“A classification is implicitly made, but it is on the basis of language, i.e., English-speaking versus non-English-speaking individuals, and not on the basis of race, religion or national origin. Language, by itself, does not identify members of a suspect class.”). See also Toure v. United States 24 F.3d 444 (2d Cir. 1994) (affirming Soberal-Perez and rejecting request for multilingual forfeiture notices). “A policy involving an English requirement, without more, does not establish discrimination based on race or national origin.” Id. at 446.
Last, AAPS objects to the extreme vagueness of the LEP Guidance. It lacks clear and understandable rules explaining what is allowed and what is prohibited. In large part we believe this is due to the impossible nature of its task. But AAPS members and other affected entities must deal with the consequences.
The frequent use of undefined phrases such as “meaningful access, reasonable steps, meaningful opportunity, critical services, timely manner,” and the like, result in a guidance document that provides no real guidance at all. Recipients cannot establish with reasonable certainty that they have met some entirely subjective standard of compliance in an area such as language that is in constant flux. Therefore AAPS believes the LEP Guidance is unconstitutionally vague and unenforceable. We urge you to withdraw it.
Jane M. Orient, M.D.