Deeana Jang
Office of Civil Rights
Department of Health and Human Services
Attn: LEP Comments
Dear Ms. Jang:
The National Health Law Program submits these comments on behalf of NHeLP and the undersigned organizations in response to the Request for Comments on the ""Policy Guidance on the Prohibition Against National Origin Discrimination As It Affects Persons with Limited English Proficiency"" (""LEP Guidance""), re-published by the Office for Civil Rights of the Department of Health and Human Services (""OCR"") in the Federal Register on August 8, 2003.
As we stated when OCR first issued this Guidance in August 2000, we strongly support OCR's effort to provide much-needed clarifying provisions for health care and social service providers pursuant to Title VI of the Civil Rights Act of 1964. OCR's endeavor is critically important to ensure that limited English proficient (""LEP"") persons have fair and equal access to the health care and social services. The HHS LEP Guidance, historic Executive Order No. 13166, and the Department of Justice Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons ( DOJ LEP Guidance), confirm the key principle that all federal services - whether by a federal agency or a federal fund recipient - must be accessible to every LEP person. As one of the first agencies to issue its LEP Guidance, OCR's LEP Guidance has served as an excellent model for other agencies as they develop their own guidances. We also urge HHS to take a leadership role in developing an exemplary policy and practice for serving the LEP population in its administration of the Medicare, Medicaid and State Children's Health Insurance (SCHIP) programs.
While we support the LEP Guidance, we are deeply concerned that in many places the revised guidance of August 8, 2003, does not conform to the template that was established by DOJ. In a memorandum from Ralph Boyd on July 8, 2002, DOJ required each federal agency to re-issue its guidance and to conform to DOJ's template and meet the minimum requirements as stated in the DOJ LEP Guidance. The goal was to ensure minimum standards of consistency across the federal government. Yet in numerous situations throughout its reissued guidance, HHS has failed to conform to the DOJ template. And, it is widely recognized that the reissuance represents a weakening of the standards from their previous iterations by OCR. For example, an AMA News Editorial on November 10, 2003, states ""Since the guidance was issued, the AMA and other physician groups have steadfastly argued for modifications. It seems as if the federal government got some of the message."" While HHS may state in its trainings that its guidance conforms to the DOJ template, the actual text - and its interpretation by some who are looking for the ways to sidestep their nondiscrimination obligations - gives significant latitude to providers and weakens expectations that all recipients of federal funds must undertake at least some action to provide language services. As a result, rather than providing clearer guidance to health care providers and social service agencies, it has created greater confusion as to Title VI requirements and conflicts with DOJ's LEP Guidance. In section C. of our comments we have outlined ""minimum recommendations"" which are necessary to bring HHS guidance into conformance with DOJ's template.
We encourage OCR to adopt the recommendations which are attached. At a minimum, we urge OCR to conform its guidance to the DOJ template and ensure that when LEP persons access healthcare and other social services that they can expect meaningful access. We appreciate the opportunity to submit these comments and look forward to working with OCR to implement the LEP Guidance.
Sincerely,
National Health Law Program
cc: Alex Acosta, Assistant Attorney General for Civil Rights Division, Department of Justice
The undersigned organizations support the comments submitted by NHeLP:
The Access Project (Boston, MA)
ACLU of Northern California (San Francisco, CA)
AIDS Voice of Palm Beach County
American Civil Liberties Union
Asian Law Alliance (San Jose, CA)
Asian Pacific American Legal Center (Los Angeles, CA)
Bay Area Legal Aid, Contra Costa Regional Office (Richmond, CA)
Bazelon Center for Mental Health Law
California Pan-Ethnic Health Network
Center for Civil Justice (Saginaw, MI)
Center for Reproductive Rights (New York, NY)
Children's Defense Fund-Ohio (Columbus, OH)
Chinese for Affirmative Action (San Francisco, CA)
Chinese Progressive Association (Boston, MA)
Community Health Access Network (Raymond, NH)
Community Legal Services, Inc. (Philadelphia, PA)
Cross-Cultural Communications (Ellicott City, MD)
East Bay Community Law Center (Berkeley, CA)
Endowment for Health (Concord, NH)
The Emory Clinic (Atlanta, GA)
Families USA
Florida Legal Services, Inc. (Tallahassee, FL)
Health Care for All (Boston, MA)
Health Consumer Alliance (Los Angeles, CA)
Health Consumer Center, Legal Aid Society of San Mateo County
Health Consumer Center, Neighborhood Legal Services of Los Angeles County
Health Rights Hotline (Sacramento, CA)
Healthy House Within a MATCH Coalition (Merced, CA)
Institute for Reproductive Health Access (New York, NY)
Law Center for Families (Oakland, CA)
Legal Aid Foundation of Los Angeles
Legal Services of Southern Piedmont (Charlotte, NC)
The Legal Aid Society - Employment Law Center (San Francisco, CA)
League of United Latin American Citizens (Northeast Region)
Massachusetts Medical Interpreters Association
Maternal and Child Health Access (Los Angeles, CA)
Mercy Medical Center (Des Moines, IA)
Mid-Iowa Health Foundation (Des Moines, IA)
Migrant Legal Action Program
Multicultural Association of Medical Interpreters of Central New York, Inc. (Oneida, NY)
National Council on Interpreting in Health Care
National LEP Task Force
National Partnership for Women & Families
National Senior Citizens Law Center
National Women's Law Center
Neighborhood Legal Services (Los Angeles, CA)
New Hampshire Minority Health Coalition (Manchester, NH)
New York Immigration Coalition
New York Lawyers for the Public Interest
North Carolina Justice and Community Development Center (Raleigh, NC)
Northwest Health Law Advocates (Seattle, WA)
PALS for Health Program & ALAS para Tu Salud Project
Physicians for Human Rights
Santa Clara County Citizenship and Immigrant Programs (San Jose, CA)
Spoken Translation (Berkeley, CA)
Summit Health Institute for Research and Education, Inc.
Texas Breast Cancer Coalition (Carrollton, TX)
Universal Health Care Action Network of Ohio (UHCAN Ohio)
Virginia Poverty Law Center
A. GENERAL COMMENTS
We appreciate the opportunity to provide comments to the revised OCR guidance that was published in the Federal Register in August 2003. Our comments are divided into three basic parts. The first section sets forth general, overall comments to the guidance. Part two contains more detailed comments on a section by section basis. Finally, the last section includes recommendations to bring HHS' guidance into conformance with the DOJ template.
Ensuring access to health care for people with limited English proficiency is more important than ever, because America is more diverse than ever. Surging immigration is transforming both urban and rural America, and has fueled the bulk of the population growth in rural and urban America. Large cities such as Los Angeles, New York and Chicago continue to be remarkably diverse. In addition, immigrants have now settled in smaller cities such as Des Moines, Iowa and La Crosse, Wisconsin. In percentage terms over the past ten years, Georgia and North Carolina saw the largest increases in their LEP populations - 243%. Thirteen additional states experienced over 100% growth in their LEP populations. The health care system throughout America must be in a position to respond to the often unique needs of immigrants, including but not limited to their cultural and linguistic needs. Health care providers must adjust to the new American landscape, and the OCR LEP Policy Guidance must also acknowledge this exciting yet challenging transformation.
The Bush administration has made a number of critical pronouncements about the need for health care and human service providers to ensure meaningful access for people with limited English proficiency. On a number of occasions, this administration has reaffirmed its commitment to Executive Order 13166, and we applaud your continuing support of this Executive Order. In 2002, the Department of Justice issued revised Title VI LEP Guidance, and set forth a standard for federal agencies to follow in crafting or revising their Title VI LEP Guidances.
We are seriously concerned that the OCR LEP guidance deviates from the DOJ requirements in a number of material respects. Equally importantly, the 2003 revised OCR guidance represents a troubling departure from the carefully crafted guidance issued by OCR in 2000, which was substantially unchanged from its revised guidance issued in February 2002. The 2000 guidance was the model for other federal agencies, and established OCR as the leader among federal agencies and throughout the country in providing a flexible compliance roadmap under Title VI. HHS federal fund recipients throughout the country have relied on the 2000 OCR guidance in crafting effective programs and policies to ensure that people with limited English skills can meaningfully access health care and human services.
The revised guidance sends a muddled, confusing message to providers and consumers, and stands in stark contrast to OCR's prior leadership on this issue. In so many instances throughout the revised guidance, ""shall"" has become ""may"" or ""should."" Equally troubling, the guidance, through its statement in section V that providers may conclude in ""certain circumstances"" that ""language assistance services are not necessary,"" invites providers to disregard altogether their obligations under Title VI. Such guidance is legally incorrect under Title VI, reflects a shocking departure from OCR's prior interpretation of Title VI, and is unsound public policy and unsound health care policy.
Upon reviewing the revised OCR guidance, we have four general categories of concerns that are outlined below. Although we address specific concerns in the context of our section by section analysis, these four concerns repeatedly surfaced throughout the guidance as a whole.
1. The Current OCR Guidance Misinterprets the Obligations of Health Care and Social Services Providers under Title VI to Ensure Meaningful Access
It is well settled that a recipient of federal financial assistance has an obligation under Title VI to ensure that persons with limited English proficiency can meaningfully access the program or service. While the revised OCR guidance acknowledges this tenet in general, it often belies it with particulars. For instance, in section V, the guidance acknowledges a recipient's legal obligation to ensure meaningful access, but then notes that a recipient may conclude ""in certain circumstances [that] recipient-provided language services are not necessary."" This statement misconstrues Title VI, and invites all too many providers to do nothing for persons with limited English proficiency. The examples that were used presumably to clarify this statement actually complicate and confuse matters further.
The frequency with which optional wording - such as ""may"" or ""likely"" - has replaced mandatory wording from DOJ's guidance demonstrates how HHS' guidance undermines Title VI of the Civil Rights Act. Interpretation and enforcement of Title VI, spanning almost four decades, cannot be overlooked. The current language in the Guidance has dramatically changed where DOJ's Guidance stated ""must"" to OCR's use of ""may"" or ""should."" Additionally, many of the examples within OCR's Guidance, used to clarify the suggestions, actually complicate matters, will further confuse providers, and do not give a clear guideline for providing quality care to LEP populations.
2. The Guidance is Inconsistent in a Number of Material Respects with the Directives Set Forth in the DOJ Policy Guidance on Title VI.
The Department of Justice coordinates the enforcement of Title VI across federal agencies. In 2002, DOJ issued its revised LEP guidance for recipients of DOJ financial assistance, and also sent a memorandum to federal agencies that provided a template for agencies to follow in preparing their LEP guidance. Creation of this template was due in part to a finding by the Office of Management and Budget of a need for consistency in the application of Title VI across federal agencies. The revised OCR guidance is inconsistent with the DOJ directive in a host of areas. For example, in a section on ""Competency of Interpreters"", DOJ's guidance states that ""recipients should ensure"" while HHS states ""Recipients should take reasonable steps, given the circumstances""; in discussing the competency of family members as interpreters, DOJ states ""in many circumstances"" family members are not competent while HHS says ""in some circumstances."" The revised OCR LEP guidance must be modified to ensure compliance with this DOJ directive. Otherwise, the goal of consistency across federal agency LEP guidance documents will be thwarted.
3. The Guidance is Inconsistent with OCR's Longstanding Interpretations and History of Enforcing Title VI
OCR has been enforcing Title VI for decades. During this period, OCR has entered into hundreds of compliance agreements with providers, and has provided technical assistance to thousands of recipients. We are unaware of any compliance agreement, consent decree or other document issued by OCR in which OCR agreed that a recipient could determine that it had no obligation to provide any assistance to an LEP person. Rather, these complaint resolutions correctly recognize that Title VI runs to and protects the individual who is being discriminated against on the basis of race, color, or national origin. Yet the provision in Section V that addresses this reflects a troubling turnabout in policy and a new interpretation of Title VI. If OCR indeed wishes to change its longstanding interpretation of Title VI in the LEP context, it must do so through notice and comment rulemaking. OCR lacks the authority to make such a critical change through this non-regulatory guidance process. To put it differently, OCR is no longer simply restating legal principles that were incorporated into prior compliance agreements and other related activities. The guidance proposes to move OCR in a new legal direction, and it must comply with the notice and comment rulemaking provisions before attempting to do so.
4. In a host of areas, the Guidance Reflects Unsound Public Policy that Runs Counter to Numerous HHS Initiatives, Including the Initiative to Eliminate Racial and Ethnic Disparities in Health Status, Numerous Quality Improvement Initiatives, and HHS Efforts to Reduce Medical Errors.
In addition to running counter to Title VI, the OCR Guidance is not good public policy as it is likely to foster bad health policies. The guidance invites providers to engage in unsound practices, such as allowing family members to serve as interpreters or failing to ensure the competency of the language service provider. Such practices are dangerous, and can have serious adverse consequences. In reviewing its guidance, OCR should consider the broader Departmental initiatives to improve quality of care, eliminate racial and ethnic disparities, and reduce medical errors. It is difficult to imagine how inviting providers to conclude that no language assistance services are necessary, or allowing family members or untrained staff to serve as interpreters, will assist in making progress on these initiatives.
B. SECTION BY SECTION COMMENTS
I. Background and Legal History
OCR has been enforcing Title VI for over 30 years, has investigated hundreds of complaints, and has negotiated dozens of voluntary resolution agreements. It issued an internal guidance memorandum on LEP issues in January 1998 to instruct its regional offices on enforcement of Title VI and ""to ensure consistency in OCR's investigation of LEP cases."" The current LEP Guidance should be consistent with those prior guidances to clarify for all federal fund recipients, as well as the general public, the recipients' legal obligations under Title VI.
We agree with OCR's discussion and conclusions in Section I. We are concerned, however, that OCR has omitted any discussion of legal history except for Lau v. Nichols. In the guidance published in August 2000, OCR provided a fuller legal history which was helpful in explaining the scope and breadth of expectations under Title VI for recipients of federal funds. We urge OCR to incorporate cases in addition to Lau. While Lau is the seminal case in this area, the inclusion of other cases is helpful to provide additional guidance to recipients who often are unfamiliar with Title VI.
We also recommend that OCR include examples of recently decided cases from its own investigations, such as the Los Angeles County welfare department settlement finalized this month, the Rancho Los Amigos settlement against LA County DHS [OCR Docket No. 09-00-3014], the Fresno settlement agreement with Fresno County Adult Services [OCR Docket Nos. 09-00-3007, 09-00-3300 & 09-003338] and Maine Medicaid Center [OCR Docket No. 01-98-3025] consent decrees. Providing further examples of effective language access and steps recipients have undertaken to provide meaningful access can only further OCR's objectives in providing comprehensive uniform guidance to recipients of their obligations under Title VI.
With regard to the omitted Introductory section which was included in the DOJ LEP Guidance, we recommend that a similar section be included in the final OCR LEP guidance. For example, the DOJ LEP Guidance provides useful background information and statistics to illustrate the critical need to provide language assistance services and describes the barriers to access of important benefits and services by LEP persons.
RECOMMENDATION: Amend Section I to include an Introduction as well as additional legal history and selected OCR decisions and consent decrees.
II. Revised HHS LEP Guidance
We appreciate the discussion of the timeline from HHS' first republication of its guidance to the present. We believe this is helpful to explain to recipients, consumers and advocates of the development of this current guidance.
As HHS recognizes, it has decided that the DOJ template is an appropriate model for HHS to adopt. As DOJ recognized in its guidance, and as quoted in HHS' guidance, ""Consistency among Departments of the federal government is particularly important.""
We are therefore concerned when, throughout its guidance, HHS has deviated from the DOJ template and adopted less mandatory language. While HHS noted that it made ""certain modifications for the purposes of clarity and organization"", we believe that many of the changes actually hinder clarity by creating different standards and expectations for recipients of HHS funds compared to recipients of DOJ funds. For example, changing mandatory language as used in DOJ's template to voluntary language in HHS - such as changing ""must"" to ""likely"" or ""may"" - does not clarify the guidance but rather obfuscates the situation and fails to ensure consistency. While we recognize that certain examples need to be changed because of the different nature of programs involved, we do not believe that HHS should change basic language used throughout and should not add examples that serve to confuse rather than clarify. We believe that as HHS has adopted DOJ's guidance as its template, and stated its intent to abide by that template to ensure consistency among the federal departments, that HHS must ensure that its guidance does indeed track DOJ's in substance as well as form.
In Section C. we have pointed out concerns about language changes that we believe fail to adhere to the DOJ template and create more confusion rather than clarity. We have provided ""Minimum Recommendations"" which we urge HHS to adopt to bring its guidance in line with the DOJ template.
III. Who is Covered?
In general, we agree with the substance of this section and urge OCR to maintain it as is at a minimum. According to OCR, all programs operated by any recipient that receives any federal funding will be covered, regardless of whether federal funds are actually used to operate a specific program. This explicit interpretation makes it clear that any subcontractor or vendor to the recipient would be covered by Title VI.
RECOMMENDATION: Amend Section III, paragraph 1 to read as follows:
Department of Health and Human Services ... require all recipients of federal financial assistance from HHS, either directly or indirectly, to provide meaningful access to LEP persons.
IV. Who is a Limited English Proficient Individual?
We agree with the contents of this section. We would suggest that OCR add clarification specifically addressing health care issues. While an individual may have sufficient English skills to interact in many day-to-day situations, interactions in the health care arena often requires a higher level of English ability. One explanation is that health care interactions actually require knowledge of four languages - English, medical terminology in English, the target language, and medical terminology in the target language. The very complexity of medical terms, some of which do not have corresponding terms in other languages, further illustrates a heightened need for language services. Both the importance of comprehension as it directly impacts diagnosis, treatment and outcomes as well as the complicated terminology used in health care often results in a greater need for language services by LEP persons than in other day-to-day encounters.
RECOMMENDATION: Amend Section IV, paragraph 1 to read as follows:
Individuals who do not speak English as their primary language or who have a limited ability to read, write, speak or understand English at a level that permits him/her to interact effectively with health and social service agencies and providers can be limited English proficient. . .
V. How does a Recipient Determine the Extent of Its Obligation to Provide LEP Services?
(i) Introduction (68 Fed. Reg. 47314)
OCR sets out four key factors in its introductory comments to ensure meaningful access to LEP individuals, but does not state that they are mandatory minimum requirements. HHS' guidance states that, after conducting the four factor test, ""a recipient may conclude that different language measures are sufficient for the different types of programs or activities in which it engages, or, in fact, that in certain circumstances, recipient-provided language services are not necessary"". (emphasis added) This position goes beyond what the DOJ template sets forth and is alarming because if a provider has made the affirmative choice to accept federal dollars, then Title VI requires that it do at least something to insure that it is not ever refusing service, or offering a different type or quality of service, based on a person's national origin. Title VI does not allow a recipient of federal funds to discriminate by refusing to serve LEP individuals as long it does so only rarely.
It is not exactly clear what HHS is trying to say by stating that ""in certain circumstances,"" language services are not necessary. Is it that the provider need not serve LEP individuals if encounters with them are rare? Or is HHS saying that the provider must serve the individual, but may attempt to do so without being able to communicate with her? Or is HHS suggesting that the provider does not have to do anything, and the LEP individual has to make her own arrangements for interpretation if she wishes to be served? Whatever its intent, HHS' position has confused the extent to which an entity may have to offer language services with whether any language services must be provided at all. Title VI does not allow a recipient of federal funds to discriminate by refusing to serve LEP individuals, even on a rare basis. Nor is it a permissible option to attempt to serve such a person without knowing what it is the person actually wants or needs. In the example given by HHS, one must ask how the dentist, confronted with a Hmong speaking client and without language services of any kind, can even determine that what the person seeks is to have her teeth cleaned. It is inappropriate to tell an LEP individual to come back later with her own interpreter. At best, this results in delayed service, which will sometimes cause unnecessary suffering. At worst, the person will not be able to arrange for an interpreter on her own and will be denied the service altogether, no matter how routine it may be considered by HHS. Certainly Title VI does not envision or allow this, but the guidance suggests just that.
The extent to which covered entities provide language services is certain to differ based on the four factors. But something must be done in each case. For example all healthcare providers should have, at a minimum, a plan for using a telephonic interpreter line to access interpreters for those cases, no matter how rare, when the provider encounters an LEP individual. While we recognize that cost is a consideration in determining the type of language services to use, it cannot be legitimately considered in evaluating whether to provide such services at all. Otherwise, the clear message is that it is permissible to discriminate on the basis of national origin every now and again if doing otherwise would cost anything more than a nominal amount.
We strongly recommend HHS amend its guidance to delete the qualification u