By Anthony W. Basch, Health Care

From 1990 to 2000, Virginia’s foreign-born population exploded by 83%.[1] Approximately 8% of Virginia’s total population is foreign-born, and 53% of Virginia’s foreign-born residents are Limited English-proficient Individuals (LEP Individuals).[2] These figures are important, as healthcare providers that receive federal financial assistance (LEP Providers) must ensure that LEP Individuals have meaningful access to health and social services programs.

Title VI of the Civil Rights Act of 1964 (Title VI) states that no person shall “on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” The Department of Health and Human Services (HHS) has concluded that LEP Individuals are denied meaningful access to health service on the basis of national origin if they cannot receive important health information in their native tongue, free of cost to them.[3] Recent guidance from HHS (the “LEP Guidance”) addresses and interprets LEP Providers’ legal obligations to provide assistance to LEP Individuals.[4] Although the LEP Guidance is effective immediately, a lawsuit filed on August 30, 2004, seeks to enjoin the enforcement of the LEP Guidance.[5]

Who is an LEP Individual?

The LEP Guidance defines LEP Individuals as “individuals who do not speak English as a primary language and who have a limited ability to read, write, speak, or understand English.”[6] LEP Individuals are covered by the LEP Guidance when they seek social services or health and healthcare-related services, participate in health promotion or awareness activities or are the parents or legal guardians of eligible minors.

What is an LEP Provider?

An LEP Provider is an entity that receives direct or indirect HHS financial assistance to provide health or social services programs and activities (whether or not it regularly serves LEP Individuals). HHS financial assistance includes participation in Medicare Part A and Medicaid, receipt of federal construction and other loans for health care facilities, and a variety of other sorts of federal assistance. Federal regulations list over 180 federal financial assistance programs, so providers may wish to confirm whether any programs in which they participate make them LEP Providers.[7] Providers who receive only Medicare Part B payments are not LEP Providers, but many physicians will be affected by the LEP Guidance by virtue of their affiliation with clinics or hospitals that are LEP Providers. Any sub-recipient of federal funds given to an LEP Provider is also an LEP Provider. If an entity receives federal financial aid for any part of its operations, the entire entity must comply with the LEP Guidance.

What are an LEP Provider’s obligations?

The LEP Guidance is not a one-size-fits-all approach.  Instead, LEP Providers must balance the following four factors to ensure maximum access by LEP Individuals, without imposing undue burdens on small businesses, local governments, or non-profit entities:

1. The number or proportion of LEP Individuals to be served by the LEP Provider;
2. The frequency with which LEP Provider serves LEP Individuals;
3. The nature and importance of the LEP Provider’s services and
4. The resources available to the LEP Provider to provide those services.

Under the first factor, the more LEP Individuals an LEP Provider serves, the higher the LEP Provider’s obligations generally will be. An LEP Provider’s separate facilities may have different obligations. Thus, for example, an LEP Provider with several facilities in different ethnic communities might have an obligation to provide an interpreter in Chinese at one facility and in French at another facility, depending on the LEP populations served by each facility.

As for the second factor, LEP Providers must be more proactive to address the needs of those LEP populations with which they come into contact more frequently. Community health services that frequently serve a large LEP population may require outreach activities, while individual LEP Provider physicians and dentists may not require any outreach services.

In assessing the third factor, LEP Providers must consider the importance and urgency of their services. If an activity is important and urgent (e.g., hospital emergency or delivery rooms), relatively immediate language services are required. If an activity is important but not urgent (i.e., a delay in providing services will not harm the patient’s health, but the services themselves will have an impact on the patient’s health, such as elective surgery), language services are required but may be delayed for a reasonable time. Finally, if an activity is neither urgent nor important (e.g., tours of facilities), language services may not be needed.

The fourth factor accounts for the resources available to a given LEP Provider. Fewer steps may be required to be “reasonable” for a small LEP Provider than would be required for a large LEP Provider. At the same time, increases in technology may reduce costs even for small LEP Providers so that previously “unreasonable” services may be “reasonable in the future.

What types of services are required?

Once an LEP Provider determines that it needs to provide LEP services, it must determine (i) who will provide language services and (ii) which language services will be provided.

As mentioned above, courts have concluded that language services must be provided without cost to LEP Individuals. In the past, many LEP Providers have expected LEP Individuals’ family members to serve as interpreters. Except as provided below, an LEP Provider usually must allow an LEP Individual to use a family member as an interpreter. However, the LEP Provider may not require the LEP Individual to do so. Instead, LEP Providers must notify LEP Individuals of their right to an independent interpreter.

In some cases, the presence of a family member may detract from the physician-patient relationship. In particular, LEP Providers should be aware of signs of domestic abuse. The use of a family member suspected of domestic abuse to translate for the victim of such abuse raises serious conflict of interest issues, not to mention concerns under both Virginia law and the Federal Health Insurance Portability and Accountability Act of 1996 (HIPAA).

Similarly, if the LEP Individual’s preferred interpreter cannot translate accurately, the LEP Provider is expected to provide its own interpreter. A number of provider groups have questioned whether this expectation may increase risks for LEP Providers by imposing liability for failure to appoint an interpreter or appointment of an incompetent interpreter.[8]

As for content, HHS recommends that vital information be provided in writing. Vital information is information necessary to make informed decisions related to healthcare and includes consent and complaint forms; intake forms; written notices regarding eligibility criteria, rights, or changes in benefits or services; notices about free language assistance; and applications to participate in the LEP Provider’s programs or activities or to receive benefits or services. Nonvital information is information that does not affect LEP Individuals’ rights and includes hospital menus, third-party documents, and large documents like enrollment handbooks.

Is there an easy way for LEP Providers to ensure compliance with Title VI?

The LEP Guidance provides two safe harbors for LEP Providers. If an LEP Provider meets either of the safe harbors, HHS will deem it to be in compliance with Title VI. Failure to meet a safe harbor does not mean that an LEP Provider is out of compliance with Title VI, only that the four factors discussed above will be reviewed.

Safe Harbor 1:  An LEP Provider meets the first safe harbor if it provides written translations of vital documents for each eligible LEP language group that constitutes the lesser of 5% or 1,000 of the population eligible or likely to be served by the LEP Provider. Other documents may be translated orally, if necessary.

Safe Harbor 2:  If 5% of an LEP language group is fewer than 50 persons, the LEP Provider meets the second safe harbor if it provides written notice in the LEP language group in question of the right to receive a free and competent oral interpretation of those vital documents.

How will HHS enforce compliance?

HHS is required by federal regulations to seek voluntary compliance from LEP Providers prior to enforcing the mandatory compliance.[9] HHS’ Office for Civil Rights provides technical assistance, including guidance on how to provide language services, and provides a website that contains compliance information for LEP Providers.

If HHS receives a complaint, report, or other information alleging noncompliance with Title VI, it will investigate and notify the LEP Provider whether the LEP Provider is in compliance with Title VI. If HHS determines that the LEP Provider is not in compliance, HHS will provide a letter of findings that sets out the areas of noncompliance and the steps that must be taken to correct noncompliance. The letter of findings seeks voluntary compliance with Title VI. If the letter of findings does not bring the LEP Provider into compliance, HHS will enforce compliance by terminating federal assistance to the LEP Provider (after the LEP Provider has been given an opportunity to participate in an administrative hearing).[10]

How is the LEP Guidance related to other healthcare issues?

HIPAA. The use of translators involves the transmission of protected health information (PHI) under HIPAA. If the LEP Provider is a “covered entity” under HIPAA, it will need to safeguard PHI, both in English and other languages. LEP Providers that enter into agreements for translation services should thus require business associate agreements from their contracted interpreters to protect the confidentiality of PHI. Business associate agreements would not generally be required when a family member is the interpreter.

Anti-Kickback Act. Under the Federal Anti-Kickback Act, a provider may not offer, give, solicit or receive remuneration of any kind in return for the referral of any service payable in whole or in part by federal funds like Medicare. For example, a Korean-speaking LEP Provider may send all of her patients who are Spanish-speaking LEP Individuals to a Spanish-speaking LEP Provider, and vice versa. However, she may not enter into an agreement to send Spanish-speaking LEP Individuals to the Spanish-speaking LEP Provider in return for the referral of all Korean-speaking LEP Individuals.

EMTALA. Finally, LEP Providers still need to comply with the Emergency Medical Treatment and Active Labor Act (EMTALA) if it is applicable. If an LEP Individual comes to a hospital emergency department in need of emergency medical care, the emergency department must still stabilize the LEP Individual before transferring to another facility. The LEP Guidance does not condone the transfer of an LEP Individual prior to stabilization simply because language services are not immediately available. Instead, the LEP Provider must take reasonable steps to fulfill its obligations under Title VI.

What are the compliance costs of the LEP Guidance?

The most obvious expense associated with the LEP Guidance is that the language services are to be provided without cost to LEP Individuals. Translation services frequently charge by the hour or by the word, and many have mandatory minimum fees per project or per day. LEP Providers absorb the costs as overhead, lowering effective payments for LEP Providers who provide services to more LEP Individuals. Thus, if a procedure is reimbursed by Medicaid at $75 and the cost of interpretation is $50, then an LEP Provider who serves a significant number of LEP Individuals nets at most $25, while other LEP Providers net at most $75 per procedure.[11]

In opposition to this unfunded mandate, the Association of American Physicians and Surgeons, Inc., five individual physicians, the Pacific Legal Foundation and ProEnglish, a group that supports making English the official language of government operations, filed suit on August 30, 2004 to challenge the LEP Guidance.[12]

The lawsuit claims that the LEP Guidance (i) requires physicians to communicate in another language in violation of the First Amendment, (ii) exceeds the scope of Title VI, and (iii) was not adopted in accordance with required administrative procedures.

The First Amendment claim is unlikely to be successful, as forced speech cases generally involve the requirement that an individual express an opinion that he or she opposes.[13] In this case, physicians approve the opinion and only oppose expressing it in an additional language.

Similarly, the claim that the LEP Guidance exceeds the scope of Title VI may not succeed, as agencies such as HHS are given wide latitude to interpret their regulations.

On the other hand, the claim that the LEP Guidance was not properly promulgated may be more fruitful. Generally, substantive rules must be subject to public notice and comment before becoming effective.[14] Interpretive rules are exempt from notice and comment rulemaking, but the rules must be interpretive (i.e., must interpret laws or other substantive rules, which have been subject to notice and comment) to be entitled to such treatment.[15] The LEP Guidance’s requirement that new services be provided without charge may impose a substantive burden on LEP Providers and thus be a substantive rule. If so, then the failure to comply with rulemaking procedures would invalidate the LEP Guidance.[16]

Pending resolution of the lawsuit, LEP Providers should review their LEP populations and outline a plan for meeting their obligations under Title VI. As the LEP Guidance is currently effective, practitioners should at least be prepared to implement LEP compliance policies if HHS notifies them of noncompliance. By working now with their legal advisors and, if necessary, HHS’ Office of Civil Rights, LEP Providers can comply with the LEP Guidance before HHS initiates an enforcement action.

[1] Joint Legislative Audit and Review Commission, Acclimation of Virginia’s Foreign-Born Population, House Doc. 9 (January 2004).

[2] U.S. Census Bureau, 2000 Census.

[3] See Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511 (2001).

[4] See 68 Fed. Reg. 47,311 (August 8, 2003).

[5] Colwell, et al. v. United States Dept. of Health and Human Services, Docket No. ______ (S.D. Ca. Aug. 30, 2004).

[6] 68 Fed. Reg. 47,311, 47,313.

[7] 45 C.F.R. Part 80, Appendix A.

[8] See, for example, letter from Association of American Physicians and Surgeons, Inc. to Office of Civil Rights, Dept. of Health and Human Services (Dec. 1, 2003) (“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.”).

[9] 45 C.F.R. 80.8(a).

[10] 45 C.F.R. 80.8(c).

[11] See letter from MGMA to Office of Civil Rights, Dept. of Health and Human Services (undated) (“Although the details referenced above represent the Washington, D.C. area, our members have provided repeated examples of interpreter fees that are several times more than the total reimbursement for services rendered.”).

[12] See footnote 5, supra.  Prior to the Collwell case, ProEnglish filed a similar suit in federal court in the Eastern District of Virginia. ProEnglish v. Bush, No. 02-2044 (4th Cir. May 15, 2003). On appeal, the Fourth Circuit’s unpublished opinion dismissed ProEnglish’s challenge to the HHS LEP guidance as not yet ripe for a decision on the merits, leaving the way open for ProEnglish to file suit again when the matter is ripe. If HHS were to take actions to enforce the LEP guidance (such as by issuing a letter of findings), the matter would become ripe.

[13] See Wooley v. Maynard, 430 U.S. 705 (1977) (State cannot require display of state motto on vehicle license plates that violates owner’s religious convictions).

[14] 5 U.S.C.  553.

[15] 5 U.S.C. 553(b)(A).

[16] Of course, the LEP Guidance could become effective if it were re-promulgated in accordance with administrative requirements.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2024.