Analysis of DHHS OCR LEP Guidance

I. Introduction
On August 30, 2000, the Office for Civil Rights of the U.S. Department of Health and Human Services (OCR) issued its long anticipated guidance, ?Title VI of the Civil Rights Act of 1964; Policy Guidance on the Prohibition Against National Origin Discrimination As It Affects Persons With Limited English Proficiency.?1 (65 Fed. Reg. 52762-52774.) The guidance is effective immediately and OCR is seeking comments to be submitted by October 30, 2000 to determine what modifications to the policy guidance, if any, are necessary.2
OCR has been enforcing Title VI for more than 30 years, has investigated hundreds of complaints, and has negotiated dozens of voluntary resolution agreements. It issued an internal guidance memorandum on LEP issues on January 29, 1998 to instruct its regional offices on enforcement of Title VI and to ensure consistency in OCR?s investigation of LEP cases. (See http://www.hhs.gov/progorg/ocr/lepfinal.htm.) This current Guidance is issued to clarify for all federal fund recipients, as well as the general public, the recipients? legal obligations under Title VI. Thus, all health and social services agencies, facilities, and other entities that receive federal funds are on notice of their legal obligations, and beneficiaries will hopefully be aware of their legal rights pursuant to Title VI. This memorandum summarizes and analyzes the most recent OCR LEP Guidance.
II. General Comments
? We wholeheartedly support OCR?s Limited English Proficient (?LEP?) Guidance (?Guidance?) as proposed and believe that the clarification of Title VI will greatly facilitate the process of opening the doors to health care and social services for the population. Although we view the Guidance as a critically important affirmative step forward toward removing linguistic barriers for LEP persons, we understand the Guidance to be the minimum that must be done to comply with Title VI. We would encourage providers to go much further than the minimum guidelines elucidated in the Guidance to maximize the goal of the Guidance: ensuring ?meaningful access? to health care services for all LEP persons.
? With regard to OCR?s point regarding the flexibility of providers to meet their legal obligations under Title VI, we strongly recommend that OCR clearly state that such flexibility means that each facility must take whatever steps necessary to comply with the law, taking into account the particular circumstances of the provider. 
? We fully agree with OCR that the newly released Guidance is a restatement of current law and merely clarifies its current policy. The document provides more explicit and useful guidance for enforcing compliance with Title VI. We are very pleased with the inclusion of the Appendices which provide useful information for recipients, especially Appendix A (the Question and Answer document), which further articulates the practical application of the Guidance. The document provides important insight into issues which the Guidance does not address directly. 
? While we understand that the broader issue of ?Cultural Competence? in health care and social services may be beyond the scope of this Guidance, we hope OCR seriously considers the issuance of guidance on ?cultural competence? since it too is related to ethnic and national origin discrimination under Title VI.3 We believe that it would be very useful for OCR to address this timely issue, of which language access issues are but one part. To ensure meaningful access to health care and social services (similar to the requirement that the services be linguistically appropriate), the recipient must provide culturally appropriate services to all of its intended beneficiaries. 
? Finally, with regard to the use of untrained interpreters, we would like the Guidance to provide stronger language discouraging the use of untrained interpreters such as family members or friends, and specifically prohibiting the use of minors as interpreters, except in emergency situations. (See Section II(C)(5)(a).)

III. Section by Section comments – the summary of the sections of the Guidance is followed by bulleted comments):
A. Background (65 Fed. Reg. 52763-64)
 
Summary: This section provides general statistics regarding the limited English proficiency4 population, discusses the serious adverse consequences (which persons who lack fluency in English experience), stresses the importance of providing meaningful access to federally funded programs and services, and examines the benefits of providing effective language assistance to limited English proficient (?LEP?) persons. It explains that OCR?s enforcement authority derives from a host of sources, including Title VI (28 U.S.C. 2000d, et seq.), the duty of health and human service providers to ensure meaningful access to LEP persons, federal and state laws and regulations, managed care contracts, and health care accreditation organizations. It also points out that the duty to provide appropriate language assistance to LEP persons is not limited to the health and human services context, but applies to many other areas, including the right to vote, the food stamp program, and the Department of Justice. 
B. Legal Authority (65 Fed. Reg. 52764-65)
 
Summary: This section describes the legal framework underlying the Guidance, which encompasses OCR?s prior practice in investigating and resolving Title VI complaints, existing statutes and regulations, and relevant case law. The Guidance explicitly states that ?a recipient?s failure to provide appropriate language assistance to LEP individuals … may have an adverse effect in the basis of national origin, in violation of Title VI.? 65 Fed. Reg. at 52765. It is also clear from the discussion that Title VI prohibits ?both intentional discrimination and policies and practices that appear neutral but have a discriminatory effect.? 
 
 
Comments: We agree with OCR?s discussion and conclusions in Sections A and B, and strongly believe that it correctly restates the powerful legal and public policy authority upon which this guidance is based. Moreover, by reiterating that Title VI applies not only to policies or practices that are intentionally discriminatory but also to programs and services which have a ?disproportionate adverse effect? on LEP persons, it will provide an extremely useful tool for advocates to ensure compliance with Title VI. Moreover, it gives clear direction to health care providers and social service agencies about their legal responsibility pursuant to Title VI.
C. Policy Guidance (65 Fed. Reg. 52765-70)
Summary: This is one of the most important sections of the document, as it contains most of the substantive requirements of the Guidance:
 
1. Who is Covered? (65 Fed. Reg. 52765)
 
The Guidance interprets Title VI?s coverage correctly to include all ?entities that receive Federal financial assistance from HHS, either directly or indirectly, through a grant, contract or subcontract …. Covered entities include: (1) any state or local agency, private institution or organization, or any public or private individual that (2) operates, provides or engages in health or social service programs and activities that (3) receives federal financial assistance from HHS directly or through another recipient/covered entity.? The Guidance lists examples such as hospitals, nursing homes, home health agencies, managed care organizations, universities and other entities with health or social services research programs, state, county, and local health agencies, state Medicaid agencies, state, county and local welfare agencies, programs for families, youth and children, Head Start programs, public and private contractors, subcontractors and vendors, physicians, and other providers who receive Federal financial assistance from HHS.

Federal financial assistance is also broadly defined to include, but is not limited to, grants and loans of Federal funds, grants or donations of Federal property, details of Federal personnel, or any agreement, arrangement or other contract which has as one of its purposes the provision of assistance. Most important, all parts of the recipient?s operations are covered by Title VI, even if the Federal assistance is only used by one part.

Comments: We strongly support OCR?s understanding of the scope of entities covered by Title VI. 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.

We also urge OCR to include another example in Appendix A to illustrate the full responsibility of various recipients: an insurance company or managed care organization that receives Medicaid or Medicare reimbursement would be ultimately responsible for ensuring that LEP members receive language accessible health care through any provider office or agency with which it has a contract or subcontract. The insurance company or managed care organization may directly provide the bilingual staff or interpreter, or it may require the contracted agency to provide such assistance. We believe that this additional example will address the common question of which organization is responsible for actually providing the language assistance: both appear to be liable.

2. Basic Requirements Under Title VI (65 Fed. Reg. 52765-66)

Summary: The recipient or covered entity (?recipient?) must take steps to ensure that eligible LEP persons have ?meaningful access? to the health and social service benefits that the recipient provides. The most important step in meeting this obligation is to provide the language assistance necessary to ensure such access, at no cost to the LEP person. Many factors contribute to the analysis of exactly what steps a given recipient must utilize to insure ?meaningful access,? including: 1) the size of the recipient, 2) the size of the eligible LEP population it serves, 3) the nature and objectives of the program or service, 4) the resources available to the recipient, and 5) the frequency with which LEP persons come into contact with the program. Because there is no ?one size fits all? solution, any assessment will be conducted on a case by case basis considering the ?totality of the circumstances.? Thus, the recipient will have considerable flexibility in determining precisely how to meet its Title VI obligations. The key to ?meaningful access? for LEP persons is to ensure that the recipient and the LEP person can communicate effectively and accurately.5

Comments: In this section, OCR reinforces the key requirement that recipients must provide language assistance free of charge to any LEP person eligible to receive any services or benefits from any of its programs. From our experience working with providers, most are simply unaware of their obligations under Title VI and massive public education is needed to inform providers of their legal responsibilities. However, the Guidance does not include the requirement that language assistance must be provided during all hours of service (which is noted in Section II(3)(C)(2) in the discussion regarding the use of community volunteers.) We would like to see such an explicit requirement, similar to the requirement that such services be provided without charge to any LEP person.

Although we agree that compliance with Title VI should depend on the ?totality of the circumstance,? we are concerned that this flexibility may allow recipients simply to argue that their LEP population is too small to require them to provide them with any language assistance or to claim that they do not have the resources to provide adequate language assistance to LEP clients. In fact, the most common response from providers when interpreter assistance is requested has been that they cannot provide such assistance due to its high costs. However, many have not even attempted to research the costs or to find low cost ways to provide language assistance. We suggest that, within the contours of flexibility, the guidance clarify that OCR expects that no federal fund recipient will rely on impressions or word of mouth in reaching conclusions regarding the need to provide translation services, but rather each will periodically engage in an objective community needs assessment to accurately verify the extent of need. This will assist the federal fund recipient in operational and clinical planning and will enable the facility to justify its translation policies to OCR (see additional discussion, below).

If providing language assistance is considered to be an essential part of providing good health care for its patients, the recipient must find a way to provide such assistance. Because recipients often cite cost constraints as a basis for the lack of provision of language assistance to LEP persons, it would be helpful if OCR provided some information regarding the availability of Federal matching money for language assistance costs, either in the body of the Guidance or Appendix A (Questions and Answers.)6 Moreover, in the list of assessments which the recipient should include in section (b), we would add the following, ?vii) identify potential sources of new resources.?

Furthermore, although the Guidance explains the need to allow flexibility in any Title VI assessment, it does not clearly state in the Guidance that all LEP persons who seek services from the recipient must be provided language assistance, specifically, at a minimum, oral assistance including an interpreter free of charge, whether telephonically or in person.7 This should be clarified.

 
3. Ensuring Meaningful Access to LEP Persons (65 Fed. Reg. 52766-69)
 

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