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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
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BY TELECOPY -- 202-307-0595

Ms. Merrily Friedlander
Chief, Coordination and Review Section
Civil Rights Division
Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Re: January 18, 2002 LEP Guidance (67 Fed. Reg. 267185)

Dear Ms. Friedlander,

This is in response to the request by your office for comments on the Department of Justice ("DOJ") 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. Our members are directly affected by the administration of the Medicare and other government medical programs by the Department of Health and Human Services ("HHS").

The LEP Guidance is fatally deficient in its failure to recognize the Supreme Court decision in Alexander v. Sandoval, 121 S. Ct. 1511 (2001). Instead, the LEP Guidance heavily and erroneously relies on lower court decisions in that litigation which have since been completely reversed. See, e.g., 67 Fed. Reg. at 2684 n.7. DOJ should reconsider and revise its position in light of the Supreme Court reversal of the decisions on which the LEP Guidance expressly relies.

AAPS also strenuously objects to the attempt of the LEP Guidance to override state English-only laws, properly enacted by numerous states. 67 Fed. Reg. at 2672 ("State or local 'English-only' laws do not change the fact that recipients cannot discriminate in violation of Title VI."). There is no statutory basis for a federal regulation to interfere with these state English-only laws, nor is it consistent with the Constitution for the federal government to require a state to speak in a language other than that of the Constitution itself. It is doubtful that a state could precisely translate its laws and constitution into all the foreign languages contemplated by the LEP Guidance, and DOJ lacks authorization to mandate such translation. Contrary to the legal premise of the LEP Guidance, English-only state laws do not constitute discrimination under the plain meaning of Title VI.

AAPS also objects to the enormous burdens placed on states and physicians that receive federal funding to administer programs. DOJ fails to estimate these burdens, which include both the costs of obtaining translators and the malpractice and other legal exposure if recipients later claim that they did not understand information in English. The Office of Management and Budget itself has recognized that it is "particularly challenging" to estimate the costs and burdens of Executive Order 13166, on which the LEP Guidance is expressly based, due to the enormous "breadth and depth of activities" covered by it. 67 Fed. Reg. 2671; 66 Fed. Reg. 59825. In fact, DOJ cannot estimate or justify this suffocating burden.

The LEP Guidance irrationally shifts the burden of understanding the English language from the listener to the speaker. This shift creates an onerous burden for the physician and is enormously costly to society.

For members of AAPS, communication is an integral part of the patient-physician relationship. When the physician cannot understand the patient, the physician invariably takes steps to eliminate the miscommunication. But only the patient can decide if he understands the language of the physician. Good, cost-effective medical care requires informal use of interpretation by family members or friends, rather than hired interpreters unfamiliar with the patient's needs. The LEP Guidance lacks justification or authority for shifting the burden of understanding from the recipient of the benefit to the provider of the benefit.

Finally, AAPS objects to the vagueness of the LEP Guidance. It omits clear rules of what is allowed and what is prohibited. Its "Four-Factor Analysis" is hopelessly malleable and provides little real guidance as to what the federal government seeks to require here. AAPS submits that the LEP Guidance is far too vague to be enforceable.


Jane M. Orient, M.D.
Executive Director