IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
CLIFFORD
W. COLWELL, JR., M.D.; JOHN BROFMAN, M.D.; CHRISTOPHER B. COLWELL,
M.D.; PAUL C. LEHMULLER, M.D.; LYNN I. DeMARCO, M.D.; PROENGLISH,
a nonprofit organization; and THE ASSOCIATION OF AMERICAN PHYSICIANS
& SURGEONS, a nonprofit organization,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HEALTH
AND HUMAN SERVICES; and TOMMY G. THOMPSON, Secretary of the United
States Department of Health and Human Services, in his official
capacity,
Defendants.
NO.___________
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION
1. This case is a facial challenge seeking declaratory and injunctive
relief against the United States Department of Health and Human
Services and Tommy G. Thompson, Secretary of the United States Department
of Health and Human Services, for exceeding their authority under
the Administrative Procedures Act, when they issued the Policy Guidance
to Federal Financial Assistance Recipients Regarding Title VI Prohibition
Against National Origin Discrimination Affecting Limited English
Proficient Persons, 68 Fed. Reg. 47,311 (Policy Guidance). Defendants
are threatening to enforce and are enforcing this Policy Guidance
that orders medical service providers and others to provide free
translation services to limited English proficient (LEP) persons,
ensure the competency of the translation, and exposes these providers
to liability under both federal law and malpractice claims. Yet
this new rule, labeled a Policy Guidance, went into effect immediately
without complying with the notice and comment provisions of the
Administrative Procedures Act, 5 U.S.C. § 553(b)-(d). This Policy
Guidance is unlawful and unenforceable because it violates the plain
language of Title VI of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000d, (Title VI), contravenes Congress' express legislative
intent, violates the plain language of 45 C.F.R. 80.3(b)(2), and
oversteps the bounds of the Defendants' statutory authority under
5 U.S.C. 706(2)(C),(D). It is also contrary to the First Amendment
to the United States Constitution because it forces medical service
providers and others to speak in a particular manner not of their
choosing.
JURISDICTION AND VENUE
2. Jurisdiction of the subject matter of this action is established
under the Constitution of the United States and 28 U.S.C. §§ 1331
(federal question) and 1346(a)(2) (civil action against the United
States). This Court has authority to grant the requested relief
under 28 U.S.C. §§ 2201-02 and 5 U.S.C. § 702.
3. Venue is proper in this judicial district pursuant to 28 U.S.C.
§ § 1391(e) and 1402(a)(1) because some of the plaintiffs reside
and have members here.
PARTIES
Plaintiffs
4. Plaintiff Clifford W. Colwell, Jr., M.D. is a medical doctor,
licensed to practice medicine in California, with a specialty in
orthopaedics. He is the Shiley Professor of Musculoskeletal Diseases
at the Scripps Clinic in LaJolla, California. He was the Medical
Director of the Musculoskeletal Center at the Scripps Clinic. Until
he retired from that position on March 16, 2002, he was head of
the Division of Orthopaedic Surgery at the Scripps Clinic. Dr. Colwell
receives federal financial assistance from the United States Department
of Health and Human Services (HHS) under the Medicaid program and
is therefore subject to Title VI and the Policy Guidance under consideration
here. Dr. Colwell and his busy internationally-renowned clinic sees
thousands of patients each month. Many of those patients are not
fluent in English. The clinic provides interpreters and translators,
at their own cost, in some languages, but not in all languages that
may be required by the Policy Guidance. The HHS Policy Guidance
imposes obligations and sanctions on Dr. Colwell, and has a direct
adverse impact on the manner he practices medicine. It also interferes
with his one-on-one physician patient relationship by eliminating
his professional judgment on how best to communicate with his patients
and it compels him to speak in a specific manner not of his choosing.
It forces Dr. Colwell to translate his own English language words
into a language other than English at his own cost, and no funding
has been identified for that translation. Until this Policy Guidance
was adopted, Dr. Colwell was never told that he had an obligation
to do so. To comply with the translation requirement is extremely
onerous and the cost will be prohibitive. It also exposes him to
increased risk of liability under both federal law and malpractice
claims because the Policy Guidance creates a new standard of care
for physicians. These suits may allege that there was an adverse
medical result from a translation failure, or from a physician not
providing adequate translations. Dr. Colwell is a member of ProEnglish
and the Association of American Physicians & Surgeons.
5. Dr. John Brofman, M.D., is a Pulmonary and Critical Care Specialist
in Berwyn, Illinois. His practice includes pulmonary medicine, inpatient
and outpatient, consultative and primary care. He receives federal
financial assistance from HHS and is therefore subject to Title
VI and the Policy Guidance, which is the subject matter of this
lawsuit. The HHS Policy Guidance has a direct adverse impact on
his practice. Prior to the HHS Policy Guidance becoming effective
and enforced, Dr. Brofman screened all new outpatients to ascertain
whether a language barrier existed at the time of the initial appointment
and, if so, he encouraged the LEP patients to bring a translator,
if needed. His LEP patients felt comfortable with this arrangement
and it was a cost effective way to communicate effectively with
them. Now, if he needs an interpreter for the LEP patient, the cost
is at least $75 an hour. The average reimbursement for a new outpatient
consultation is $150 for Medicare or $80 for public aid. These are
the direct incremental costs only and do not include any office
overhead or malpractice insurance premiums. Also, LEP patients that
require translation increase his time by an average of 30-50%. The
HHS Policy Guidance may force Dr. Brofman to reduce his access to
LEP patients because of the increased cost and potential liability
for forced speech in languages other than English.
6. Dr. Paul C. Lehmuller, M.D. is a physician in Oyster Bay, New
York, and has an active practice at Nassau University Medical Center,
which receives federal financial assistance from HHS and is therefore
subject to Title VI and the HHS Policy Guidance. Dr. Lehmuller heads
a number of children's orthopedic clinics and the majority of his
patients are Hispanic. The HHS Policy Guidance has a direct adverse
impact on the manner Dr. Lehmuller practices medicine. Dr. Lehmuller
is required to provide interpreters in any requested language, at
his own cost, without reimbursement. Because his hospital refuses
to provide official translators, Dr. Lehmuller is incurring actual
and potential liability because the Policy Guidance imposes a new
standard of care for physicians. Prior to the adoption and enforcement
of the HHS Policy Guidance at issue, Dr. Lehmuller used his best
professional judgment to communicate effectively with his LEP patients
without fear of being sued for speaking English. Now, he fears that
he will be subject to personal liability and other harm if he continues
to speak to his patients in English. Further, Dr. Lehmuller's right
to communicate with his patients is chilled by the policy guidance.
Dr. Lehmuller is unable to conform his conduct to the requirements
of the HHS Policy Guidance because it is impossible for him to ascertain
what is required or prohibited by that policy. The cost of providing
translators is exorbitant and unreasonable. Dr. Lehmuller is a member
of ProEnglish.
7. Dr. Christopher B. Colwell, M.D. is an emergency room physician
in Denver, Colorado. He is the Medical Director for the Denver Paramedical
Division and Denver First Department, which receives federal financial
assistance from HHS and is therefore subject to Title VI and the
HHS Policy Guidance. The emergency department has limited translation
resources. The HHS Policy Guidance has a direct adverse impact on
the manner Dr. Colwell practices medicine. Under HHS Policy Guidance,
Dr. Colwell is required to provide interpreters in any requested
language, at his own cost, without reimbursement. This requirement
increases his exposure to actual and potential liability for forced
speech in languages other than English. Prior to the adoption of
the policy guidance at issue, Dr. Colwell used his best professional
judgment to communicate effectively with his LEP patients without
fear of being sued for speaking English. Now, he fears that he will
be subject to personal liability and other harm if he continues
to speak to his patients in English. For example, when Dr. Colwell
was treating a Russian LEP patient for chest pains in the emergency
department in July or August 2001, he was threatened by the LEP
patient that if he did not immediately provide a free in-person
interpreter, the LEP patient would file a complaint with the HHS
Office of Civil Rights. Dr. Colwell is concerned that the Policy
Guidance increases his exposure to lawsuits by someone complaining
about a translation. Further, Dr. Colwell's right to communicate
with his patients is chilled by the HHS Policy Guidance, and he
is unable to conform his conduct to its requirements because it
is impossible for him to ascertain what is required or prohibited.
8. Plaintiff Lynn I. DeMarco, M.D., is a partially retired Professor
of Medicine at the Truman Memorial Hospital in Kansas City, Missouri.
He receives federal financial assistance from HHS and is therefore
subject to Title VI and the HHS Policy Guidance. He immigrated to
the United States from northeast Italy. Until he was five years
old, he spoke only Friulano. Dr. DeMarco learned English while attending
public schools. His mother still speaks Friulano. In his practice,
Dr. DeMarco provides services to LEP patients. The HHS Policy Guidance
has had a direct adverse impact on the manner in which he practices
medicine. Prior to the adoption of the HHS Policy Guidance, Dr.
DeMarco was able to use his professional judgment on whether an
interpreter or translator was required when treating LEP patients.
Now, he must provide an interpreter and translator even when he
does not believe it is necessary or face the threat of being reported
to the HHS Office of Civil Rights. For example, in some circumstances
Dr. DeMarco believes that it would be appropriate to use a family
member for translation when treating an LEP patient if the family
member is fluent in English and the illness is not serious. Under
the HHS Policy Guidance, Dr. DeMarco may not request that the LEP
patient use a family member although it would be more economical
and efficient. The HHS Policy Guidance also exposes him to increased
risk of liability under both federal law and malpractice claims.
Dr. DeMarco is a member of the Association of American Physicians
and Surgeons.
9. Plaintiff ProEnglish, headquartered in Arlington, Virginia, is
a nonprofit advocacy organization dedicated to the preservation
and promotion of a common language-English-in American political
and governmental life. ProEnglish has thousands of members nationwide,
including in the Southern District of California. ProEnglish has
been an active advocate for state "official English" laws
and policies before federal and state courts, including Arizona
for Official English v. Arizona, 520 U.S. 43 (1996). The Defendants'
HHS Policy Guidance undermines or eliminates the English language
goals and programs that ProEnglish has conducted in recent years,
is currently conducting, and expects to undertake in the future.
The adoption and enforcement of Defendants' Policy Guidance will
make ProEnglish's activities much more difficult to attain. In addition,
for many years ProEnglish has successfully opposed the erroneous
legal principle underlying the government policy considered herein,
i.e. equating language as national origin under federal civil rights
law.
10. ProEnglish brings this suit on behalf of itself and its individual
members who have been aggrieved or will be aggrieved by Defendants'
conduct alleged herein and who would have standing to sue in their
own right. These members' individual interests in being able to
practice their profession without threat of being subjected to personal
liability are germane to ProEnglish's organizational purpose and
neither the claims asserted nor the relief requested herein requires
the participation of ProEnglish's individual members in order to
vindicate their individual rights. ProEnglish members, especially
those in the health care industry, who receive federal financial
assistance from HHS and are therefore subject to Title VI and the
HHS Policy Guidance, fear that they will now be the target of complaints
filed with the HHS Office of Civil Rights. Members encountering
such lawsuits will face, at a minimum, emotional strain, inconvenience,
and disruption of their professional life, economic costs, possible
harm to their professional reputation, and distraction from their
professional duties. To avoid these effects, members will limit
or possibly eliminate altogether their services to LEP persons because
the HHS Policy Guidance lacks clear and understandable rules explaining
what is allowed and what is prohibited. Members cannot know whether
or when Defendants will enforce these policies, which will result
in protected speech being unconstitutionally chilled. On June 18,
2001, ProEnglish filed a Petition for Rulemaking. On _____, ProEnglish
submitted comments on this policy. A true and correct copy of the
comments are attached hereto as Exhibit 1 and incorporated herein
by reference.
11. The Association of American Physicians and Surgeons (AAPS) is
a national, nonprofit organization with over 5,000 members. It was
founded in 1943. It is dedicated to preserving freedom in the practice
of ethical medicine and opposes government interference in the one-on-one
patient-physician relationship. Many of its members participate
in Medicare, Medicaid and other government medical programs funded
by HHS. They are subject to Title VI, HHS' regulations implementing
Title VI, and this Policy Guidance. The HHS Policy Guidance forces
physicians to make significant financial outlays for expanded translation
and interpreter services or face the likelihood of civil rights
complaints. It also requires physicians to be responsible for the
competency of the medical translation and interpreter services they
provide. This exposes physicians to increased risk from medical
errors and omissions related to language which will escalate insurance
costs. As a result of these requirements, physicians may be forced
to limit their exposure by not accepting LEP patients. AAPS brings
this lawsuit on behalf of itself and its individual members who
have been aggrieved or will be aggrieved by Defendants' conduct
alleged herein and who would have standing to sue in their own right.
These members' individual interests in being able to practice their
profession without threat of being subjected to personal liability
and attorneys' fees are germane to the purpose of AAPS and neither
the claims asserted nor the relief requested herein requires the
participation of AAPS' individual members in order to vindicate
their individual rights. On May 23, 2001, AAPS filed a rule making
petition with HHS regarding the HHS Policy Guidance. It also submitted
comments on December 1, 2003. A true and correct copy of the comments
dated December 1, 2003, are attached hereto as Exhibit 2 and incorporated
herein by reference.
Defendants
12. Defendant United States Department of Health and Human Services
is an agency possessing by delegation certain responsibilities for
administering and implementing Title VI. The HHS issued Policy Guidance
to Federal Financial Assistance Recipients Regarding Title VI Prohibition
Against National Origin Discrimination Affecting Limited English
Proficient Persons, 68 Fed. Reg. 47,311.
13. Defendant the Hon. Tommy G. Thompson is Secretary of the United
States Department of Health and Human Services (HHS). As Secretary,
he is responsible for the HHS Policy Guidance under consideration
herein. He is sued in his official capacity.
BACKGROUND
14. To prohibit discrimination on the basis of race, color or national
origin Congress enacted Title VI of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000d, Pub. L. 88-352, Title VI, § 601,
July 2, 1964, 78 Stat. 252 ("Title VI"). Title VI prohibits
"discrimination under any program or activity receiving Federal
financial assistance" against any person in the United States
"on the ground of race, color, or national origin." Title
VI proscribes only those classifications prohibited by the fourteenth
amendment's equal protection clause or the right to equal protection
incorporated into the fifth amendment by its due process clause
to the United States Constitution. Title VI does not, on its face,
make language a suspect classification, i.e. English-speaking versus
non-English-speaking individuals. Language by itself, does not identify
members of a suspect class. The Policy Guidance at issue here is
a new interpretation of Title VI. It threatens to prosecute any
physician or health care provider for intentional discrimination
for failing to provide interpreter or translation services to an
LEP patient.
15. Pursuant to Title VI, HHS promulgated a regulation forbidding
recipients of HHS federal funds from "utiliz[ing] criteria
or methods of administration which have the effect of subjecting
individuals to discrimination because of their race, color, or national
origin, or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program with respect to
individuals of a particular race, color, or national origin."
45 C.F.R. 80.3(b)(2).
Defendants' purport that the Policy Guidance is an "analytical
framework"implementing Title VI and its implementing regulation.
According to the Policy Guidance, it requires "recipients take
reasonable steps to ensure meaningful access by LEP persons."
68 Fed. Reg. at 47313 n. 2. This imposes new obligations and is
a new interpretation of Title VI because it equates the language
a person uses with the person's national origin. The ability to
speak English and national origin are obviously distinct qualities.
POLICY UNDER REVIEW
HHS Policy Guidance
16. On August 11, 2000, former President Clinton issued Executive
Order 13,166, Improving Access to Services of Persons with Limited
English Proficiency, requiring every federal agency to prepare a
plan to increase access to federally-funded services and programs
for LEP individuals. 65 Fed. Reg. 50,121. The order requires federal
agencies to design agency-specific Title VI guidelines. The Executive
Order stated that compliance standards will be set by the Department
of Justice "to ensure that the programs and activities they
normally provide in English are accessible to LEP persons and thus
do not discriminate on the basis of national origin in violation
of Title VI of the Civil Rights Act of 1964, as amended, and its
implementing regulations." 65 Fed. Reg. 50,121. A true and
correct copy of Executive Order 13,166 is attached hereto as Exhibit
3 and incorporated herein by reference.
17. Pursuant to Executive Order 13,166, on August 16, 2000, the
Department of Justice (DOJ) issued its policy guidance, the National
Origin Discrimination Against Persons with Limited English Proficiency.
65 Fed. Reg. 50,123. This document describes the compliance standards
that all federal funding recipients must follow in order to comply
with the provisions of Title VI and ensure LEP individuals meaningful
access to services. DOJ's Policy Guidance stated that the new compliance
standards did "not create new obligations, but rather, clarifie[d]
existing Title VI responsibilities." The DOJ Policy emphasized
that recipients who fail to take action to ensure effective participation
by LEP individuals of federally-funded programs might be discriminating
on the basis of national origin in violation of Title VI. The DOJ
Policy directed federal agencies to require recipients of federal
funds to provide free written and oral translations to LEP persons.
65 Fed. Reg. 50124-25. A true and correct copy of Policy Guidance
National Origin Discrimination Against Persons with Limited English
Proficiency, 65 Fed. Reg. 50,123, is attached hereto as Exhibit
4 and incorporated herein by reference.
18. Pursuant to Executive Order 13,166 and the DOJ's policy, on
August 30, 2000, HHS issued its Policy Guidance, Guidance to Federal
Financial Assistance Recipients regarding Title VI Prohibition Against
National Origin Discrimination Affecting Limited English Proficient
Persons. 65 Fed. Reg. 52762 (August 30, 2000). The Policy Guidance
went into effect immediately without complying with the notice-and
comment provisions of the Administrative Procedure Act (APA), 5
U.S.C. § 553(b)-(d). The 60-day comment period was to notify the
public of the recipient's new responsibilities and to determine
what modifications, if any, were necessary. On February 1, 2002,
HHS republished its "policy guidance." 67 Fed. Reg. 4968
(Feb. 1, 2002).
19. On August 8, 2003, HHS published a revised HHS Policy Guidance,
which is substantially similar to the earlier version. 68 Fed. Reg.
47,311. Like the earlier version, HHS announced that the Policy
Guidance was effective immediately without complying with the notice-and-comment
provision of the APA. The HHS Office of Civil Rights is enforcing
and continuing to enforce compliance with the Policy Guidance. Pursuant
to the Policy Guidance, the HHS Office of Civil Rights is obligated
to investigate "whenever it receives a complaint, report, or
other information that alleges or indicates possible noncompliance
with Title VI or its regulations." 68 Fed. Reg. 47,321. Failure
to take reasonable steps to ensure meaning access by LEP persons
"may constitute a violation of Title VI and HHS's implementing
regulations." 68 Fed. Reg. at 47,313.
20. Under the Policy Guidance, a recipient receiving federal funds
in any part of its operation is required to provide free language
assistance through oral and written translations to LEP persons.
It requires the recipient to be responsible for the competency of
written translations and interpreter services, 68 Fed. Reg. at 47,316-47,317,
although there are no national certification programs available
for the recipient to use. The Policy Guidance forbids the recipient
to use an LEP patient's friends, family members, or other informal
interpreters. 68 Fed. Reg. at 47,317. It also provides a "safe
harbor" provision, which means that if a recipient provides
written translations under the described circumstances, such action
will be considered strong evidence of compliance. 68 Fed. Reg. at
47,319. The safe harbor provision applies only to written translations,
it does not apply to oral translations. Id. . A true and correct
copy of the August 8, 2003, Policy Guidance is attached hereto as
Exhibit 5 and incorporated herein by reference.
21. The HHS Office of Civil Rights is enforcing and continuing to
enforce the Policy Guidance whenever a complaint is filed or through
compliance reviews. Recipients are subject to fines and can lose
their federal funding if they are found not to be in compliance.
For example, the HHS Office of Civil Rights has a list of case summaries
which it has investigated including Cook County Hospital where a
"complaint alleged that the renal dialysis center of Cook County
Hospital discriminated against non-English speaking persons on the
basis of race and national origin by failing to provide qualified
interpreters thereby denying non-English speaking persons an equal
opportunity to participate in the Recipient's program. The complaint
was resolved through a Resolution Agreement." http://www.hhs.gov/ocr/seclectacts/lep.html
(last reviewed 07/30/2002). A true and correct copy of the case
summaries is attached hereto as Exhibit 6. Other recipients investigated
include Contra Costa County Department of Social Services, Inova
Fairfax Hospital, Illinois Department of Public Aid, among others.
Id. Further, the Office of Civil Rights has testified that it spends
approximately $40,000 per month through mid-March 2002, and has
spent approximately $60,000 on Title VI casework related to LEP
since February 2, 2002, seeking compliance of the Policy Guidance.
INJUNCTIVE RELIEF ALLEGATIONS
22. Plaintiffs hereby reallege and incorporate by reference the
allegations contained in Paragraphs 1 through 21 as though fully
set forth herein.
23. If an injunction does not issue enjoining the Defendants from
utilizing, relying on, enforcing or threatening to enforce the Policy
Guidance or other similar policy guidance that equates language
with nation origin, as described above, plaintiffs will be irreparably
harmed.
24. Plaintiffs have no plain, speedy, and adequate remedy at law.
25. If not enjoined by this Court, Defendants will continue to utilize,
rely on, enforce, or enforce the HHS Policy Guidance in derogation
of the rights of Plaintiffs.
26. Accordingly, injunctive relief is appropriate.
DECLARATORY RELIEF ALLEGATIONS
27. Plaintiffs hereby reallege and incorporate by reference the
allegations contained in Paragraphs 1 through 26 as though fully
set forth herein.
28. An actual and substantial controversy exists between the Plaintiffs
and the Defendants as to their respective legal rights and duties.
Plaintiffs contend that the Policy Guidance to Federal Financial
Assistance Recipients Regarding Title VI Prohibition Against National
Origin Discrimination Affecting Limited English Proficient Persons,
68 Fed. Reg. 47,311, or other similar policy guidance that equates
language with nation origin, is a new interpretation of Title VI
and HHS implementing regulation, 45 C.F.R. § 80.3(b)(2). The Policy
Guidance has the effect of a substantive rule because it imposes
new obligations and sanctions in the event a recipient fails to
comply with its provisions. The Policy Guidance is invalid because
it expands the scope of Title VI beyond Congressional authority
and cannot be considered interpretations in violation of the Administrative
Procedures Act.
29. Defendants contend the new interpretation and threatened enforcement
of the Policy Guidance is valid and permissible.
30. There is a present justiciable controversy between the parties
regarding the new interpretation and threatened enforcement of the
Policy Guidance. Many of the plaintiffs are practicing physicians
who provide services to LEP persons. They have a vital interest
in knowing whether the Policy Guidance, which forces them to speak
in a particular manner not of their choosing, and exposes them to
liability under both federal law and malpractice claims, is valid.
Declaratory relief is appropriate to resolve this controversy.
FIRST CLAIM FOR RELIEF
VIOLATION OF THE ADMINISTRATIVE PROCEDURES ACT, 5 U.S.C. § 706
(FAILURE TO FOLLOW NOTICE AND COMMENT PROCEDURES)
31. Plaintiffs reallege and incorporate by this reference the allegations
of paragraphs 1-30.
32. The action of Defendants in issuing the Guidance to Federal
Financial Assistance Recipients Regarding Title VI Prohibition Against
National Origin Discrimination Affecting Limited English Proficient
Persons occurred without compliance with the rule-making process
specified by the Administrative Procedures Act, 5 U.S.C. § 553.
Under the Administrative Procedures Act, when an agency makes new
rules, it must do so through the notice and comment procedures specified
in section 553. The agency must first publish a notice of proposed
rule making in the federal register, allow persons time to comment
on the proposed rule, and the final rule must contain a statement
of basis and purpose. Id. A "rule means "the whole or
part of an agency statement of general or particular applicability
and future effect designed to implement, interpret or prescribe
law or policy..." 5 U.S.C. § 551(f).
33. The language of the Policy Guidance indicates that it was intended
to be a substantive rule rather than a policy statement. It creates
substantive obligations to provide a level of language assistance
to LEP persons. It uses words of command such as "must,"
"shall," and "required" to regulate the actions
of federal funding recipients and threatens recipients with sanctions
for failing to comply with the new obligation. Further, the Policy
Guidance establishes a fixed standard for compliance by requiring
federal funding recipients to provide the language assistance that
is "free of charge." 68 Fed Reg. at 47,320, 47,323. It
establishes a mandatory four factor model to assess compliance.
68 Fed. Reg. at 47,314. It establishes a "safe harbor"
which will be considered as strong evidence of compliance with the
recipient's written translation obligations. 68 Fed. Reg. at 47,319.
It establishes that the recipient cannot rely on the LEP person
to provide their own interpreters and it expressly discourages the
use of family members or friends as interpreters. 68 Fed. Reg. at
47, 317. It requires the recipients to be responsible for determining
the competence of the language assistance provided. 68 Fed. Reg.
at 47,316-317. Because it is a substantive rule, it is subject to
the procedures set out in the Administrative Procedures Act, 5 U.S.C.
§ 553.
34. The HHS Policy Guidance violates 5 U.S.C. section 553(d) by
depriving Plaintiffs of prior notice and comment. The HHS Policy
Guidance went into immediate effect without following the specific
procedures, including requirements of notice to and opportunity
for comment by, affected persons. Allowing Plaintiffs to provide
comment after the Policy Guidance became effective does not cure
the defect. The purpose of the post notice and comment period was
to notify the public of the recipient's responsibility. The HHS
implemented a rule without the appropriate notice and comment period
violating the requirements of the APA. Defendants' action in issuing
the Policy Guidance is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law" and should
be set aside. 5 U.S.C. section 706.
SECOND CLAIM FOR RELIEF
VIOLATION OF THE ADMINISTRATIVE PROCEDURES ACT, 5 U.S.C. § 706
(HHS POLICY GUIDANCE EXCEEDS THE AUTHORITY DELEGATED BY CONGRESS
UNDER TITLE VI)
35. Plaintiffs reallege and incorporate by this reference the allegations
of paragraphs 1-34.
36. The Policy Guidance is contrary to law and is invalid because
it equates the language a person uses with the person's national
origin. According to the Policy Guidance, failure to provide written
and oral language assistance to non-English speakers is national
origin discrimination under Title VI of the Civil Rights Act of
1964. 68 Fed. Reg. at 47,312. Title VI provides in pertinent part,
that "[n]o person in the United States 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."
42 U.S.C. § 2000d. There is no indication in the plain language
of Title VI or in the legislative history that Congress intended
language to serve as a proxy for national origin. The ability to
speak English and national origin are obviously distinct qualities
and the equation of language and national origin is unsupported
in law or fact.
37. Further, the plain language of HHS' regulation implementing
Title VI does not support Defendants' new interpretation of Title
VI. 45 C.F.R. § 80.3(a) provides in pertinent part:
"(a) General. No person in the United States shall, on the
ground of race, color, or national origin be excluded from participation
in, be denied the benefits of, or be otherwise subjected to discrimination
under any program to which this part applies.
45 C.F.R. § 80.3(b)(2) provides in pertinent part:
"(2) A recipient, in determining the types of services, financial
aid, or other benefits, or facilities which will be provided under
any such program, or the class of individuals to whom, or the situations
in which, such services, financial aid, other benefits, or facilities
will be provided under any such program, or the class of individuals
to be afforded an opportunity to participate in any such program,
may not, directly or through contractual or other arrangements,
utilize criteria or methods of administration which have the effect
of subjecting individuals to discrimination because of their race,
color, or national origin, or have the effect of defeating or substantially
impairing accomplishment of the objectives of the program as respect
individuals of a particular race, color, or national origin."
38. By exceeding its authority under Title VI and its regulations
implementing Title VI, Defendants' Policy Guidance unlawfully imposes
new standards not authorized by law. The HHS implemented a rule
without the appropriate Congressional authority violating the requirements
of the APA, 5 U.S.C. section 706.
THIRD CLAIM FOR RELIEF
THE HHS POLICY IS CONTRARY TO THE FIRST
AMENDMENT TO THE UNITED STATES CONSTITUTION
39. Plaintiffs reallege and incorporate by this reference the allegations
of paragraphs 1-38.
40. The Policy Guidance is forcing Plaintiffs' to speak in a specific
manner contrary to plaintiffs' free speech rights under the First
Amendment to the United States Constitution. The First Amendment
to the Constitution of the United States provides, in part, that
"Congress shall make no laws . . . abridging the freedom of
speech." This prohibition has been extended to apply to actions
of federal agencies. This prohibition also covers "forced speech,"
which is speech required by governmental policy to be made by persons
who do not otherwise wish to speak in that manner. There are limited
exceptions to this prohibition, but those exceptions require the
government to demonstrate, subject to a strict scrutiny standard
of review, a compelling non-speech-related interest in the regulation,
and that the regulation is narrowly tailored.
41. The Policy Guidance equates language and national origin. The
effect of the Policy Guidance violates the constitutional rights
of the Plaintiffs forcing them to speak in a manner in which they
do not want to speak, imposing liability on them for such forced
speech, costing them money, exposing them to substantial liabilities,
chilling their own speech, and otherwise infringing on their rights.
Further, the Policy Guidance chills Plaintiff Pro English's speech
in support of English language use and in opposition to the mandatory
provisions of multi-lingual services by government.
42. Defendants have not demonstrated any compelling interest to
support these policies. The claimed interest in avoiding discrimination
by equating language and national origin has no support in fact
or law, including the text of Title VI, or HHS' regulations implementing
Title VI.
43. Further, the HHS Policy Guidance is not narrowly tailored. The
Policy Guidance applies to any and all speech by a recipient of
HHS funds, as defined by the demand of an LEP person who wants services
or benefits.
44. In addition, the Policy Guidance is constitutionally vague.
Although it acts as a rule, the Policy Guidance imposes broad obligations
on physicians and others without the constitutionally required fair
warning and subjects recipients to arbitrary enforcement. The Policy
Guidance lacks clear and understandable rules explaining what is
allowed and what is prohibited. The frequent use of undefined phrases
such as "meaningful access," "reasonable steps,"
"meaningful opportunity," "critical services,""timely
manner," and other such phrases result in a rule that provides
no standards at all. Recipients cannot establish with reasonable
certainty that they have met some entirely subjective standards
of compliance, in an area such as language that is in constant flux.
Recipients cannot know whether and when Defendants will enforce
these policies, which will result in protected speech being unconstitutionally
chilled.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request judgment as follows:
1. A declaration that the new interpretation and threatened enforcement
of the United States Department of Health and Human Services Guidance
to Federal Financial Assistance Recipients Regarding Title VI Prohibition
Against National Origin Discrimination Affecting Limited English
Proficient Persons, 68 Fed. Reg. 47,311 exceeds Defendants' authority
under Title VI of the Civil Rights Act of 1964, 42 U.S.C. section
2000d and 45 C.F.R. section 80.3(b)(2), or is unconstitutional;
2. A declaration that Defendants violated the Administrative Procedures
Act, 5 U.S.C. section 553, by failing to give prior notice and comment
before implementing and enforcing the United States Department of
Health and Human Services Guidance to Federal Financial Assistance
Recipients Regarding Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons, 68
Fed. Reg. 47,311, in violation of 5 U.S.C. section 706;
3. A declaration that the United States Department of Health and
Human Services Guidance to Federal Financial Assistance Recipients
Regarding Title VI Prohibition Against National Origin Discrimination
Affecting Limited English Proficient Persons, 68 Fed. Reg. 47,311,
is contrary to Title VI of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000d, in that there is no indication in the text of
Title VI or in the legislative history that Congress intended language
to serve as a proxy for national origin, in violation of 5 U.S.C.
section 706;
4. A declaration that the United States Department of Health and
Human Services Guidance to Federal Financial Assistance Recipients
Regarding Title VI Prohibition Against National Origin Discrimination
Affecting Limited English Proficient Persons, 68 Fed. Reg. 47,311,
results in forced speech contrary to the First Amendment to the
United States Constitution.
5. Preliminary and permanently enjoining Defendants from enforcing,
threatening to enforce, or otherwise giving effect to the United
States Department of Health and Human Services Guidance to Federal
Financial Assistance Recipients Regarding Title VI Prohibition Against
National Origin Discrimination Affecting Limited English Proficient
Persons, 68 Fed. Reg. 47,311, or any other policy, rule, or regulation
that equates language and national origin.
6. An order that Defendants pay Plaintiffs their reasonable attorneys
fees and costs; and 7. An order awarding Plaintiffs such other relief
as the Court may find appropriate under the circumstances.
DATED: August ___, 2004.
Respectfully submitted,
SHARON L. BROWNE
ARTHUR B. MARK III
Pacific Legal Foundation
Attorneys for Plaintiffs
