- Email: [email protected]
Serving those with little or no knowledge of English
D E N T I S T R Y
&
THE
LAW
Serving those with little or no knowledge of English An examination of language-assistance requirements issued by the U.S. Department of Health and Human Services his column previously has examined the legal requirements for serving hearing-impaired patients and their families.1,2 This month, we explore the requirements imposed on dentists who receive federal financial assistance including those who arguably (participate in Medicaid, Medicare or the State Children’s Health Insurance Program) from the U.S. Department of Health and Human Services, or HHS, and who serve patients with little, if any, knowledge of the English language. Consider the following scenario: A dentist in a small town in the Midwest each month sees about 10 patients who speak only Spanish, and the dentist receives federal financial assistance. The dentist does not provide these patients with any language assistance, such as interpreters or persons to translate documents, but does allow the patients themselves to bring their own interpreters. By not providing (or bearing the cost of) any type of language assistance, could the dentist be violating federal law? Does the dentist run the risk of having his or her federal financial assistance from HHS completely terminated? On Aug. 8, 2003, HHS published a revised Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons.3 The Guidance purports to elaborate on the prohibition against discrimination with respect to national origin, codified in Title VI of the Civil Rights Act of 1964. Covering any health care provider who
T
M.
SFIKAS,
J.D.
receives federal financial assistance from HHS, the Guidance requires that all such providers, including dentists, take “reasonable steps” to ensure meaningful access to their services by persons who are limited English proficient, or LEP. LEP persons are those who do not speak English as their primary language and have a limited ability to read, write, speak or otherwise understand English. Significantly, the Guidance emphasizes that the costs of providing language assistance are borne entirely by the provider. How does a dentist determine the steps that are reasonable to assess language needs and ensure “meaningful access” by LEP persons? The Guidance states that the dentist should weigh four factors in undertaking an individualized assessment. These factors are dthe number or proportion of LEP persons eligible to be served or likely to be encountered by the provider’s program; dthe frequency with which LEP individuals come into contact with the program; dthe nature and importance of the service provided by the program to people’s lives; dthe resources available to the provider (according to the Guidance, smaller providers with smaller budgets will not be expected to offer the same level of language services as larger recipients with larger budgets). The Guidance states that this four-factor analysis affects the type of language-assistance services that a health care provider who receives federal assistance from HHS must offer. The Guidance specifies two primary methods for providing language services: oral interpretation and written translation. Oral interpretation can range from on-site
BY
PETER
1616
JADA, Vol. 135, November 2004 Copyright ©2004 American Dental Association. All rights reserved.
D E N T I S T R Y
interpreters for critical services provided to a large number of LEP persons to commercially available telephonic interpretation services. Similarly, written translation can range from translation of an entire document to translation of a short description of the document. Which particular language assistance services a dentist must provide depends on examining the four factors in the context of the dentist’s own practice. (Language-assistance services for dentists may be available through communitybased or community volunteer organizations.) Because these factors are extremely general, no “magic formula” exists with respect to the steps a dentist must take to comply with the legal requirements the Guidance addresses. Nonetheless, the Guidance does attempt to flesh out in greater detail how these factors may impact particular provider practices. For instance, the Guidance states that where the importance of the activity is great, the frequency of contact with LEP persons is high, and the relative costs and resources required to provide language services may be low, it may be appropriate for the provider to hire bilingual staff or staff interpreters. On the other end of the spectrum, where the importance of the activity and frequency of contact with LEP persons are low (and costs needed to provide services high), language assistance may not be necessary. Of course, a large gray area exists between these two extremes on which the Guidance attempts to expand. For instance, with respect to dentists, the Guidance expressly states that 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 particular foreignspeaking patient may not need to provide language services for such a patient who comes in for a dental cleaning. However, a provider’s practice that encounters one LEP foreign-speaking patient per month on a walk-in basis may want to use a telephone interpreter service. The Guidance also contains another express reference to dentists. Regarding the “frequency” part of the four-factor analysis, the Guidance states that a provider should consider whether he or she should undertake appropriate outreach activities to LEP persons in order to increase the frequency of contact with LEP language groups. However, the Guidance also expressly states that, for most individual dentists, outreach may not be necessary. In the context of the scenario at the beginning of this article, the Guidance permits the use of a relative or friend as an interpreter if the LEP patient opts to use this person, and if the provider determines the person to be competent in providing the interpretation. However, the provider cannot require a patient to use relatives or friends. Dentists also can refer an LEP person to another dentist for language assistance when it will result in better access for the LEP person. (The Guidance offers the example of two physicians who practice in the same geographic area and have a custom of referring patients to each other. One physician has a Spanishspeaking assistant and the other a Vietnamese-speaking
&
THE
LAW
assistant. Under such circumstances, 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-speaking patients to the first doctor.) When a dentist’s obligation to provide language assistance is triggered by the dentist’s receipt of federal financial assistance from HHS, the dentist must provide language assistance to any LEP patient. There are no LEP police seeking out potential violators. The program is complaintdriven. HHS will investigate whether a provider is complying with the Guidance whenever HHS receives a complaint, report or other information that alleges possible noncompliance. If the investigation results in a finding of compliance, HHS will inform the provider in writing of this determination. However, if HHS reaches a finding of noncompliance, HHS must inform the provider through a Letter of Findings, enumerating the areas of noncompliance and the steps to be taken to remedy the noncompliance. If the matter cannot be resolved informally, HHS must terminate federal assistance after the provider has been given an opportunity for an administrative hearing and/or by referring the matter to the Department of Justice to pursue enforcement proceedings. The ADA agrees that discriminatory barriers that impede access to appropriate health care should be addressed. However, the Association contends that the Guidance should not place inappropriate and significant financial burden on dentists that could threaten efforts by the ADA and dentists to
JADA, Vol. 135, November 2004 Copyright ©2004 American Dental Association. All rights reserved.
1617
D E N T I S T R Y
&
THE
LAW
increase access to dental services for those served by public programs. Legal requirements should not be so unreasonable as to potentially affect a dentist’s decision about whether or not to participate in public programs. In 2002, President Clinton’s administration released a guidance document the Association believed to be too burdensome on small providers, including dentists. The ADA worked with other provider groups to address these concerns. In 2003, President Bush’s administration issued a revised guidance document. While containing a few improvements to address issues of concern for small providers, the Guidance leaves several requirements open to the provider’s interpretation, which could prove problematic if an LEP patient filed a complaint. The HHS Guidance also is the subject of a lawsuit recently filed in the U.S. District Court for the Southern District of California. The suit lists numerous plaintiffs, including several medical doctors, and cites HHS and HHS Secretary Tommy G. Thompson.4 The complaint alleges several causes of action. The complaint alleges that the defendants violated the rulemaking process specified in the Administrative Procedure Act, or APA,5 when issuing the Guidance. Specifically, the complaint states that when an agency normally makes new rules, it must do so through the notice and comment procedures codified in the APA. According to the complaint, the agency must first publish a notice of proposed rule making in the federal register, allowing people time to comment on the proposed rule.
1618
The complaint also contends that, despite its name, the Guidance is a substantive rule because it creates obligations on the part of health care providers to offer a level of language assistance to LEP persons. Consequently, because the defendants issued the Guidance without purportedly following the proper rule-making procedures, the defendants’ conduct violated the APA. The plaintiffs also claim that the Guidance is beyond the scope of Title VI, another alleged violation of the APA. Title VI prohibits, in part, discrimination on the basis of national origin against persons in connection with their participation in any program receiving federal financial assistance. The plaintiffs contend that Congress did not intend Title VI to equate the language a person speaks with national origin. Accordingly, the plaintiffs maintain that the defendants exceeded their authority under the APA in issuing the Guidance. Finally, the plaintiffs allege that the Guidance violates the U.S. Constitution. First, the plaintiffs allege that the Guidance is contrary to the First Amendment because the Guidance compels the plaintiffs to speak in a specific manner contrary to the plaintiffs’ free speech rights, costing them money, chilling their own speech and imposing liability on them for engaging in the forced speech. Second, the plaintiffs maintain that the Guidance is unconstitutionally vague because it lacks clear and understandable rules explaining what exactly is allowed and what is prohibited. Because of the Guidance’s vagueness, the
plaintiffs claim that they cannot establish with reasonable certainty that Mr. Sfikas is ADA chief they have met counsel and an adjunct some subjecprofessor of law at Loyola University of tive standard Chicago School of Law. of compliance, He has lectured and written on legal issues and whether and is a fellow of the and when the American College of defendants will Trial Lawyers. Address reprint requests to Mr. enforce the Sfikas at the ADA, 211 E. Chicago Ave., Guidance. Chicago, Ill. 60611. While it remains uncertain whether the Guidance will withstand legal challenge, all dentists who receive federal financial assistance from HHS should be familiar with its content. To that end, the Guidance provides the following Web sites to assist dentists and other health care providers with compliance: “www.lep.gov” and “www.hhs.gov/ocr”. At minimum, dentists should understand that a continued failure to abide by the Guidance may result in the termination of their federal financial assistance altogether. ■ The author expresses his appreciation to Brent Hanfling, Esq., senior staff attorney, ADA Division of Legal Affairs; Thomas J. Spangler Jr., Esq., director, Legislative and Regulatory Policy, ADA Division of Government Affairs; and Julie Allen, manager, Legislative and Regulatory Policy, ADA Division of Government Affairs. This article is informational only and does not constitute legal advice. Dentists must consult with their private attorneys for such advice. 1. Sfikas PM. Serving the hearing-impaired: an update on the use of sign-language interpreters for dental patients and their families. JADA 2001;132:681-3. 2. Sfikas PM. Treating hearing-impaired people: a look at the use of sign interpreters in dentistry. JADA 2000;131:108-10. 3. 68 Fed. Reg. 47,311 (Aug. 8, 2003). 4. Colwell v. United States Department of Health and Human Services, No. 04CV1748 (S.D. Cal.). 5. 5 U.S.C. Sec. 553.
JADA, Vol. 135, November 2004 Copyright ©2004 American Dental Association. All rights reserved.
&
THE
LAW
Serving those with little or no knowledge of English An examination of language-assistance requirements issued by the U.S. Department of Health and Human Services his column previously has examined the legal requirements for serving hearing-impaired patients and their families.1,2 This month, we explore the requirements imposed on dentists who receive federal financial assistance including those who arguably (participate in Medicaid, Medicare or the State Children’s Health Insurance Program) from the U.S. Department of Health and Human Services, or HHS, and who serve patients with little, if any, knowledge of the English language. Consider the following scenario: A dentist in a small town in the Midwest each month sees about 10 patients who speak only Spanish, and the dentist receives federal financial assistance. The dentist does not provide these patients with any language assistance, such as interpreters or persons to translate documents, but does allow the patients themselves to bring their own interpreters. By not providing (or bearing the cost of) any type of language assistance, could the dentist be violating federal law? Does the dentist run the risk of having his or her federal financial assistance from HHS completely terminated? On Aug. 8, 2003, HHS published a revised Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons.3 The Guidance purports to elaborate on the prohibition against discrimination with respect to national origin, codified in Title VI of the Civil Rights Act of 1964. Covering any health care provider who
T
M.
SFIKAS,
J.D.
receives federal financial assistance from HHS, the Guidance requires that all such providers, including dentists, take “reasonable steps” to ensure meaningful access to their services by persons who are limited English proficient, or LEP. LEP persons are those who do not speak English as their primary language and have a limited ability to read, write, speak or otherwise understand English. Significantly, the Guidance emphasizes that the costs of providing language assistance are borne entirely by the provider. How does a dentist determine the steps that are reasonable to assess language needs and ensure “meaningful access” by LEP persons? The Guidance states that the dentist should weigh four factors in undertaking an individualized assessment. These factors are dthe number or proportion of LEP persons eligible to be served or likely to be encountered by the provider’s program; dthe frequency with which LEP individuals come into contact with the program; dthe nature and importance of the service provided by the program to people’s lives; dthe resources available to the provider (according to the Guidance, smaller providers with smaller budgets will not be expected to offer the same level of language services as larger recipients with larger budgets). The Guidance states that this four-factor analysis affects the type of language-assistance services that a health care provider who receives federal assistance from HHS must offer. The Guidance specifies two primary methods for providing language services: oral interpretation and written translation. Oral interpretation can range from on-site
BY
PETER
1616
JADA, Vol. 135, November 2004 Copyright ©2004 American Dental Association. All rights reserved.
D E N T I S T R Y
interpreters for critical services provided to a large number of LEP persons to commercially available telephonic interpretation services. Similarly, written translation can range from translation of an entire document to translation of a short description of the document. Which particular language assistance services a dentist must provide depends on examining the four factors in the context of the dentist’s own practice. (Language-assistance services for dentists may be available through communitybased or community volunteer organizations.) Because these factors are extremely general, no “magic formula” exists with respect to the steps a dentist must take to comply with the legal requirements the Guidance addresses. Nonetheless, the Guidance does attempt to flesh out in greater detail how these factors may impact particular provider practices. For instance, the Guidance states that where the importance of the activity is great, the frequency of contact with LEP persons is high, and the relative costs and resources required to provide language services may be low, it may be appropriate for the provider to hire bilingual staff or staff interpreters. On the other end of the spectrum, where the importance of the activity and frequency of contact with LEP persons are low (and costs needed to provide services high), language assistance may not be necessary. Of course, a large gray area exists between these two extremes on which the Guidance attempts to expand. For instance, with respect to dentists, the Guidance expressly states that 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 particular foreignspeaking patient may not need to provide language services for such a patient who comes in for a dental cleaning. However, a provider’s practice that encounters one LEP foreign-speaking patient per month on a walk-in basis may want to use a telephone interpreter service. The Guidance also contains another express reference to dentists. Regarding the “frequency” part of the four-factor analysis, the Guidance states that a provider should consider whether he or she should undertake appropriate outreach activities to LEP persons in order to increase the frequency of contact with LEP language groups. However, the Guidance also expressly states that, for most individual dentists, outreach may not be necessary. In the context of the scenario at the beginning of this article, the Guidance permits the use of a relative or friend as an interpreter if the LEP patient opts to use this person, and if the provider determines the person to be competent in providing the interpretation. However, the provider cannot require a patient to use relatives or friends. Dentists also can refer an LEP person to another dentist for language assistance when it will result in better access for the LEP person. (The Guidance offers the example of two physicians who practice in the same geographic area and have a custom of referring patients to each other. One physician has a Spanishspeaking assistant and the other a Vietnamese-speaking
&
THE
LAW
assistant. Under such circumstances, 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-speaking patients to the first doctor.) When a dentist’s obligation to provide language assistance is triggered by the dentist’s receipt of federal financial assistance from HHS, the dentist must provide language assistance to any LEP patient. There are no LEP police seeking out potential violators. The program is complaintdriven. HHS will investigate whether a provider is complying with the Guidance whenever HHS receives a complaint, report or other information that alleges possible noncompliance. If the investigation results in a finding of compliance, HHS will inform the provider in writing of this determination. However, if HHS reaches a finding of noncompliance, HHS must inform the provider through a Letter of Findings, enumerating the areas of noncompliance and the steps to be taken to remedy the noncompliance. If the matter cannot be resolved informally, HHS must terminate federal assistance after the provider has been given an opportunity for an administrative hearing and/or by referring the matter to the Department of Justice to pursue enforcement proceedings. The ADA agrees that discriminatory barriers that impede access to appropriate health care should be addressed. However, the Association contends that the Guidance should not place inappropriate and significant financial burden on dentists that could threaten efforts by the ADA and dentists to
JADA, Vol. 135, November 2004 Copyright ©2004 American Dental Association. All rights reserved.
1617
D E N T I S T R Y
&
THE
LAW
increase access to dental services for those served by public programs. Legal requirements should not be so unreasonable as to potentially affect a dentist’s decision about whether or not to participate in public programs. In 2002, President Clinton’s administration released a guidance document the Association believed to be too burdensome on small providers, including dentists. The ADA worked with other provider groups to address these concerns. In 2003, President Bush’s administration issued a revised guidance document. While containing a few improvements to address issues of concern for small providers, the Guidance leaves several requirements open to the provider’s interpretation, which could prove problematic if an LEP patient filed a complaint. The HHS Guidance also is the subject of a lawsuit recently filed in the U.S. District Court for the Southern District of California. The suit lists numerous plaintiffs, including several medical doctors, and cites HHS and HHS Secretary Tommy G. Thompson.4 The complaint alleges several causes of action. The complaint alleges that the defendants violated the rulemaking process specified in the Administrative Procedure Act, or APA,5 when issuing the Guidance. Specifically, the complaint states that when an agency normally makes new rules, it must do so through the notice and comment procedures codified in the APA. According to the complaint, the agency must first publish a notice of proposed rule making in the federal register, allowing people time to comment on the proposed rule.
1618
The complaint also contends that, despite its name, the Guidance is a substantive rule because it creates obligations on the part of health care providers to offer a level of language assistance to LEP persons. Consequently, because the defendants issued the Guidance without purportedly following the proper rule-making procedures, the defendants’ conduct violated the APA. The plaintiffs also claim that the Guidance is beyond the scope of Title VI, another alleged violation of the APA. Title VI prohibits, in part, discrimination on the basis of national origin against persons in connection with their participation in any program receiving federal financial assistance. The plaintiffs contend that Congress did not intend Title VI to equate the language a person speaks with national origin. Accordingly, the plaintiffs maintain that the defendants exceeded their authority under the APA in issuing the Guidance. Finally, the plaintiffs allege that the Guidance violates the U.S. Constitution. First, the plaintiffs allege that the Guidance is contrary to the First Amendment because the Guidance compels the plaintiffs to speak in a specific manner contrary to the plaintiffs’ free speech rights, costing them money, chilling their own speech and imposing liability on them for engaging in the forced speech. Second, the plaintiffs maintain that the Guidance is unconstitutionally vague because it lacks clear and understandable rules explaining what exactly is allowed and what is prohibited. Because of the Guidance’s vagueness, the
plaintiffs claim that they cannot establish with reasonable certainty that Mr. Sfikas is ADA chief they have met counsel and an adjunct some subjecprofessor of law at Loyola University of tive standard Chicago School of Law. of compliance, He has lectured and written on legal issues and whether and is a fellow of the and when the American College of defendants will Trial Lawyers. Address reprint requests to Mr. enforce the Sfikas at the ADA, 211 E. Chicago Ave., Guidance. Chicago, Ill. 60611. While it remains uncertain whether the Guidance will withstand legal challenge, all dentists who receive federal financial assistance from HHS should be familiar with its content. To that end, the Guidance provides the following Web sites to assist dentists and other health care providers with compliance: “www.lep.gov” and “www.hhs.gov/ocr”. At minimum, dentists should understand that a continued failure to abide by the Guidance may result in the termination of their federal financial assistance altogether. ■ The author expresses his appreciation to Brent Hanfling, Esq., senior staff attorney, ADA Division of Legal Affairs; Thomas J. Spangler Jr., Esq., director, Legislative and Regulatory Policy, ADA Division of Government Affairs; and Julie Allen, manager, Legislative and Regulatory Policy, ADA Division of Government Affairs. This article is informational only and does not constitute legal advice. Dentists must consult with their private attorneys for such advice. 1. Sfikas PM. Serving the hearing-impaired: an update on the use of sign-language interpreters for dental patients and their families. JADA 2001;132:681-3. 2. Sfikas PM. Treating hearing-impaired people: a look at the use of sign interpreters in dentistry. JADA 2000;131:108-10. 3. 68 Fed. Reg. 47,311 (Aug. 8, 2003). 4. Colwell v. United States Department of Health and Human Services, No. 04CV1748 (S.D. Cal.). 5. 5 U.S.C. Sec. 553.
JADA, Vol. 135, November 2004 Copyright ©2004 American Dental Association. All rights reserved.