DHHS Softens Limited English Proficiency Guidelines
Posted [09/19/03]

The U.S. Department of Health and Human Services (DHHS) recently published new guidance to help physicians meet their obligations with respect to persons who are “limited English proficient” (LEP) under Title VI of the Civil Rights Act of 1964. The act, which provides that no person shall be discriminated against on the basis of race, color or national origin under any program or activity that receives federal financial assistance, requires physicians to provide interpreter services free of charge to Medi-Cal and Healthy Family patients.

The new guidance is basically a softer version of previous LEP guidance and requires physicians to take “reasonable steps” to ensure “meaningful access” to their services by LEP patients. The new guidance clarifies that “reasonable steps” may cease to be reasonable if the costs imposed on the physician substantially exceed the benefit. The guidance lists four factors that will be used to assess the responsibility of the physician:
1) the number of LEP patients the physician sees; 2) the frequency with which the physician sees such patients; 3) the nature and importance of the services provided by the physician; and 4) the language assistance resources available to the physician and the cost of such resources.

The guidance, which is not a formal change in the regulation, goes into effect immediately, though the DHHS is accepting public comment until January 6, 2004, after which the guidance may be modified.

The guidance indicates that the Office of Civil Rights’ enforcement activities will not focus on punishing physicians who are not in compliance, but rather on “identify[ing] federal reimbursement for translation services...and continu[ing] to offer grants and model demonstration funds for LEP services.”

While CMA leaders believe that effective communication with patients is essential for quality care, the association continues to hold that physicians should not be penalized for failing to pay or arrange for interpreter services. CMA fears that an inflexible approach will reduce access to care for the poor because physicians will be forced to leave the Medi-Cal and Healthy Families programs. Providing interpreter services is particularly difficult in multi-lingual California where the cost of interpreters exceeds the payment for an office visit.

Contact: Robin Flagg Strimling, 415/882-5110 or rstrimling@cmanet.org.