Letter to HHS Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons
Dear Ms. Jang:
Thank you for the opportunity to provide comments on the Department of Health and Human Services' (HHS) revised Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons , issued August 8, 2003. The Asian & Pacific Islander American Health Forum is a national advocacy organization dedicated to promoting policy, program, and research efforts for the improvement of health status of all Asian American and Pacific Islander communities. As such, we have a strong interest in ensuring that all Americans have access to federally funded programs, regardless of their ability to speak English.
We applaud HHS' reiteration of the principles of Title VI with respect to LEP persons. We fully support HHS' goal of providing assistance, guidance and clarification to recipients of federal financial assistance in fulfilling their responsibilities to provide meaningful access to limited English proficient (LEP) persons. We also support the use of the Department of Justice's (DOJ) four-factor analysis as a reasonable, balanced methodology to ensure access for LEP persons while taking into consideration the differential resources of recipients. Appendix A "Questions and Answers" is particularly useful in its straightforward discussion of the practical applications of the Guidance.
However, we believe that the reissued guidance fails to conform to the standard guidance template issued by the DOJ on June 18, 2002. DOJ required all heads of federal agencies to conform their guidance to that template in a July 8, 2002 memorandum from Assistant Attorney General Ralph Boyd. We are particularly concerned that HHS' guidance will further diminish access for limited English proficient individuals, particularly in the critical arena of healthcare. To ensure meaningful access to HHS programs and activities, we firmly believe that HHS must issue stronger guidance to its recipients, using the mandatory language from the DOJ template and not language that is voluntary and unenforceable. At a minimum, HHS must conform its policy to the DOJ template and require – not merely suggest – that federally funded recipients ensure language access for limited English proficient individuals.
Obligation to Provide Language Services : 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). It is not exactly clear what HHS is trying to convey but whatever its intent, the position espoused by HHS is erroneous. The department has confused to what extent an entity may have to offer language services with whether any language services must be provided at all. If a provider has made the affirmative choice to accept federal dollars, then Title VI requires that it do at least something to ensure that it is not ever refusing service, or offering a different type or quality of service, based on a person's national origin. The extent to which an entity provides 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, once an entity chooses to accept federal funds, cost 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 recommend DHHS amend its guidance to delete the qualification.
Permissive language : The body of the guidance contains many changes when compared to either the original HHS guidance issued on August 30, 2000 or the DOJ's guidance that serve to obfuscate, not clarify, recipients' responsibilities. Stylistic differences aside, we feel that the repeated use of the word "may" serves to dilute the usefulness of the guidance. For example, in answering the question "Who is a Limited English Proficient Individual?" the guidance states that "Individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English may be limited English proficient [emphasis added]." Simply replacing the words "may be" with "are" would result in enhanced clarity. Alternatively, the guidance could further elaborate on what other factors should be taken into consideration when making the determination of limited English proficiency.
Healthcare examples : Effective communication with patients is essential to quality care, access to care, and assuring a patient's adherence to treatment plans, all of which are important to the delivery of good health care with successful outcomes. Throughout the document, healthcare examples that are meant to further refine recipients' understanding of their responsibilities to ensure access for LEP individuals are medically imprudent and serve to condone a lower standard of care for LEP patients.
For example, the guidance's discussion of timeliness of language assistance services, states that when "an LEP person is seeking a routine medical examination… a recipient could likely delay the provision of language services." The problem with minimizing the import and urgency of "routine care" or care for a "healthy" LEP person is that patients cannot always accurately predict whether their symptoms warrant concern. For example, symptoms of a heart attack are often confused with "heartburn," while early symptoms of a stroke are often dismissed as weakness. By attempting to draw an arbitrary line between what is "routine" health care and what is a "medical emergency," HHS is promulgating a policy guidance that is not only erroneous but also potentially harmful.
Specifically, we urge you to amend the guidance by deleting the following examples:
(1) Section V: The Nature and Importance of the Recipient's Program, Activity, or Service
"Alternatively, if the activity is important, but not urgent – such as the communication of information about, and obtaining informed consent for, elective surgery where delay will not have any adverse impact on the patient's health, or communication of information regarding admission to the hospital for tests where delay would not affect the patient's health – it is more likely that language services are needed, but that such services can be delayed for a reasonable period of time…. The obligation to communicate rights to a person whose benefits are being terminated or to provide medical services for an LEP person who is ill differ, for example, from those to provide medical care for a healthy LEP person or to provide recreational programming."
When patients agree to surgery or are admitted to the hospital, there is a high level of anxiety and uncertainty involved for both patients and family members. Specifically condoning a delay in communication above and beyond what is normally encountered due to the usual course of events is unequivocally poor quality of care.
Healthy people generally do not seek medical care unless they are presenting for a routine physical examination or health maintenance. Even then, most patients have symptoms that require further evaluation. Unless a provider is able to accurately determine whether an LEP patient is truly asymptomatic (which would require communication), unduly delayed care is again poor patient care.
(2) Section V: Four-factor analysis examples
"In contrast, a dentist in an almost exclusively English-speaking neighborhood who has rarely encountered a patient who did not speak English and has never encountered a Hmong-speaking patient may not need, solely pursuant to Title VI, to provide language services for a LEP Hmong individual who comes in for a dental cleaning."
The field of dentistry is guided by the same ethical principles as all of medicine: autonomy, beneficence, nonmaleficence, and justice. From the principle of autonomy comes the doctrine of informed consent. Unless the dentist is able to communicate with the Hmong individual what s/he proposes to do, this case would violate the precept of informed consent. As the Policy Guidance states (in Section V: The Frequency With Which LEP Individuals Come in Contact With the Recipient's Program, Activity or Service): "This plan need not be intricate. It may be as simple as being prepared to use one of the commercially available telephonic interpretation services to obtain immediate interpreter services."
(3) Section VI: Considerations Relating to Competency of Interpreters and Translators
"On the other hand, when an LEP person is seeking a routine medical examination or seeks to apply for certain benefits and has an ample period of time to apply for these benefits, a recipient could likely delay the provision of language services by requesting the LEP person to schedule an appointment at a time during which the recipient would be able to have an appropriate interpreter available."
Again, in this case, it would be important for the clinic or healthcare provider to ensure that the LEP person is indeed seeking a routine medical examination without other concerning signs or symptoms that might require more immediate attention.
(4) Section VI: Oral Language Services (Interpretation)
"A woman or child is brought to an emergency room and is seen by an emergency room doctor. The doctor notices the patient's injuries and determines they are consistent with those seen with victims of abuse or neglect. In such a case, use of the spouse or a parent to interpret for the patient may raise serious issues of conflict of interest and may , thus, be inappropriate" (emphasis added).
The standard of care for any suspected case of child or domestic abuse is to separate the suspected abuser from the suspected victim. Any statement that suggests otherwise is medically irresponsible.
We urge you to amend the guidance by revising the following examples:
(1) Section V: Four-factor analysis examples
"For example, if two physicians in the same field, one with a Spanish-speaking assistant and one with a Vietnamese-speaking assistant, practice in the same geographic area and have a custom/practice of referring patients between each other, it may be appropriate for the first doctor to refer LEP Vietnamese patients to the second doctor and for the second doctor to refer LEP Spanish patients to the first doctor."
This example of cross-referring to optimize patient-physician communication would benefit from a more thorough discussion. In general, two physicians in the same field do not refer to one another. Primary care physicians may refer patients to surgeons or to cardiologists, but generally do not refer their patients to other primary care physicians. Similarly, cardiologists generally do not refer their patients to other cardiologists, unless that second physician is a sub-sub-specialist. Primary care physicians may refer their patients to a particular specialist because they value that individual's clinical judgment, or have an established relationship with that specialist. Therefore, while theoretically plausible, the example as currently described is not likely to be tenable in practice, and indeed will likely have the unintended consequence of causing physicians to refer patients to colleagues on the sole basis of language, without consideration of clinical or other important factors.
(2) Section VI: Oral Language Services (Interpretation)
"The wife interprets for her spouse as the examination proceeds, but the doctor discovers that the husband has cataracts that must be removed through surgery. The eye doctor determines that the wife does not understand the terms he is using to explain the diagnosis and thus, that she is not competent to continue to interpret for her husband."
This example is valuable in highlighting the importance of the doctor's ongoing assessment of the communication with his patient. However, research has shown that untrained interpreters such as this patient's wife are prone to making errors, both minor and major. Given that the physician does not understand the patient's language, it is unclear how he would be able to detect any but the most egregious interpretation deficiencies or errors. We believe all interpreters must be assessed for their knowledge and skills before they are allowed to interpret in the health care setting. The risks to a patient's health, and indeed life, are otherwise just too great.
We hope that these comments will be useful to you in HHS's ongoing efforts to provide clear, consistent guidance to recipients of federal financial assistance in ensuring access for LEP individuals, and look forward to working with you to further refine this important policy guidance. Please do not hesitate to contact me with any questions.
Sincerely,
Ho Tran, MD, MPH, President and CEO
Asian & Pacific Islander American Health Forum
Co-signatories:
Kent Woo, Executive Director
NICOS Chinese Health Coalition
San Francisco, California
NICOS Chinese Health Coalition is a public-private-community partnership of more than 30 health and human service organizations and concerned individuals. NICOS' membership includes health care agencies, education- and faith-based institutions, housing and community development organizations, and child and youth development agencies.
John Manzon-Santo, Executive Director
Asian & Pacific Islander Wellness Center
San Francisco, California
Asian & Pacific Islander Wellness Center was formed in 1997 by the merger of the two leading Asian and Pacific Islander HIV/AIDS service organizations in San Francisco: Asian AIDS Project (AAP) and Living Well Project (LWP), both formed in 1987.
Dong Suh, MPP, Policy & Planning Director
Asian Health Services
Oakland, California
Asian Health Services is a community health center established in 1974. Its mission is to serve and advocate for the immigrant and refugee Asian community regarding its health rights, and to assure access to health care services regardless of income, insurance status, language, or culture.
Daniel Toleran, Chairperson
Bay Area Asian and Pacific Islander Health Council
San Francisco, California
The Asian & Pacific Islander Bay Area Health Council is a regional collaborative committed to improving the health of A&PIs in the San Francisco Bay Area by identifying needs and service disparities, promoting research and analyzing health care data, and shaping more accountable health care policies in the public and the private sectors.
Jeff Caballero, Executive Director
Association of Asian Pacific Community Health Organizations
Oakland, California
The Association of Asian Pacific Community Health Organizations (AAPCHO) is a national association representing community health organizations dedicated to promoting advocacy, collaboration and leadership that improves the health status and access of Asian Americans, Native Hawaiians and Pacific Islanders within the United States, its territories and freely associated states, primarily through our member community health clinics.
Anni Chung, President & CEO
Self Help for the Elderly
San Francisco, California
SHE is a social service agency serving seniors in San Francisco, San Mateo, and Santa Clara counties for over 30 years. Its service recipients are primarily Chinese (Cantonese and Mandarin), Vietnamese, and Russian speakers.
Rev. Norman Fong, Program Director
Chinatown Community Development Center
San Francisco, California
Chinatown Resources Development Center is a community housing development corporation d edicated to preserving the best of Chinatown's past, improving current conditions and planning for Chinatown's future. It assists tenant advocacy organizations and provides educational and recreational services to residents of low-cost housing projects.
Martin Martinez, MPP, Policy Director
The California Pan-Ethnic Health Network
Oakland, California
CPEHN is a statewide network of multicultural health organizations, including community-based organizations, policy experts, and health care providers working together to develop and advocate for a proactive multicultural health agenda that advances the health of California's diverse communities.
