SIGN-ON TO COMMENTS BY JANUARY 7 AT NOON E.S.T.:  PROPOSED RULES FOR CHIP—ISSUES OF SPECIAL INTEREST TO IMMIGRANTS
No. 00-1, January 4, 2000

Reprinted below for your quick review and sign-on are comments on the proposed rules governing the State Children’s Health Insurance Program (CHIP) that address issues of unique importance to immigrant families.  In lieu of signing on to the comments, we invite you to use them as a sample or model for your organization to adapt and submit under your own letterhead. 

The comments address several issues in implementation of the CHIP program that are key to immigrant communities.  First, the comments urge the Department of Health and Human Services (HHS) to implement mandates and recommendations that will help immigrants overcome program barriers of language and cultural competency as they seek to enroll in CHIP and to access CHIP-funded services.  And second, the comments ask HHS to require collection of data on ethnicity, race, and primary language spoken that will facilitate monitoring and enforcement of equality in enrollment and use of services.

We need to receive your sign-on by noon E.S.T on January 7, 2000 in time for us to include the name of your organization in the comments we hand-deliver to HHS by close of business on that day.  To sign the comments, please send an e-mail or a fax to NILC's Washington, D.C. office (naani@nilc-dc.org or 202/216-0266).  Please include the following information:  name of organization, your name, title, address, phone, fax, and a simple statement that your organization would like to sign the comments to the Proposed Rule implementing the State Children’s Health Insurance Program.

The proposed rule can be found at 64 Fed. Reg. 60,882–963 (Nov. 8, 1999).

The text of the comments follows.

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Original and Three Copies:
Via Courier to:  Room 443-G
Hubert H. Humphrey Building
200 Independence Avenue, S.W.
Washington, D.C.

One Copy:
Via Mail to:  John Burke, HCFA-2006-P
Health Care Financing Administration
Office of Information Services
Security and Standards Group
Division of HCFA Enterprise Standards
Room N2-14-26
7500 Security Boulevard
Baltimore, MD 21244-1850

Our first comment is a general one pertaining to Subpart I.  We applaud the decision by the Department of Health and Human Services ("HHS," "the Department") to incorporate basic consumer protections into the regulations.  The right to apply for assistance, to have applications processed in a timely manner, to be informed about benefits, participating providers and coverage decisions, and to have access to a fair process to resolve disputes are necessary to insure that the CHIP program’s promise of health care coverage is fulfilled.

Research has established that minority children are at high risk for lack of access to health insurance and health care.  Latino children are more likely to be uninsured than any other racial or ethnic group, while African-American, Asian and Pacific Islander children are more likely than white children to lack health insurance.  See The Kaiser Commission on Medicaid and the Uninsured: Uninsured in America (June 1998).  It is essential that the Department address this disparity in implementing the CHIP program, the first new program in a generation that promises a means to deliver health services to large numbers of unserved, low-income children in the U.S. Review of the proposed regulations reveals important gaps in the enrollment of and service to minority children that will, if not corrected, perpetuate the status quo of unequal access to health care.

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, prohibits discrimination by recipients of federal financial assistance.  The statute and regulations, published at 45 C.F.R. Part 80, provide that recipients may not adopt or implement policies that have the effect of discriminating or limiting the participation of individuals on the basis of race, color, or national origin.  What follows are recommendations for important improvements in the final regulations that will help the Department to meet its Title VI goals of ensuring that minority children with limited English proficiency are served by CHIP funds on an equal basis with other children.

Currently almost 14 percent of Americans speak a language other than English at home.  Limited-English proficient (LEP) populations face daunting and often insurmountable barriers to accessing quality health care.  In Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court found that pursuant to Title VI, recipients of federal financial assistance have an affirmative responsibility to provide LEP persons with a meaningful opportunity to participate in public programs.

In 1998, HHS released a Guidance Memorandum stating that Title VI recipients should take reasonable steps to provide services and information in appropriate languages other than English to ensure that all limited-English proficient individuals are effectively informed and can effectively participate and benefit from its programs.  Yet many federal programs are insufficiently aware of the need for translation and interpreter services and are not in compliance with Title VI.  Steps to ensure equal access for LEP persons include procedures for identifying language needs of patients/clients, ready access to proficient interpreters in a timely manner, and written policies and procedures regarding interpreter services that are available to staff and applicants.  See Office for Civil Rights, U.S. Dep’t of Health and Human Services, Guidance Memorandum, Title VI Prohibition Against National Origin Discrimination – Persons With Limited-English Proficiency (1998).  Because it is imperative that HHS clarify and emphasize state responsibilities under Title VI, at a minimum the Department should incorporate in the proposed regulations the standards for providing linguistic and cultural access to services set forth by the Guidance Memorandum.

However, experience has shown that even stronger standards than those provided for by the Guidance are often necessary to ensure the aggressive promulgation and implementation of policies and practices that truly facilitate participation by LEP children in a program such as CHIP.  We urge the Department to mandate aggressive language access policies by establishing numeric or proportional thresholds, and adopting minimum standards and procedures that must be met when those thresholds are crossed by a CHIP program.

1.  Applicability of Title VI to All Languages and All Individuals.  We recommend there be a clear statement in the regulations that the protections and rights to linguistic and cultural access afforded under Title VI apply to all limited-English proficient individuals.  This means that linguistic and cultural access to services is provided regardless of the numbers of individuals from a given language group who live in a given service area; also, that access is provided for all languages, regardless of how obscure the language may be.

2.  Use of Thresholds.  Even though Title VI protection applies to all LEP individuals, many providers potentially serve numbers of individuals from one language group.  In these cases, the Department should adopt thresholds that trigger minimum standards for written materials, to be available in different languages when a language group in the recipient’s service population is numerically or proportionately "significant."  The Department of Justice coordination regulations, 28 C.F.R. § 42.405(d)(1), state that a numeric or percentage threshold is useful for clarifying when written materials need to be available in other languages.

For example, the Department could consider establishing a threshold of "100 persons or 5 percent of the population in the recipient’s service area."  This is the threshold used in an August 1993 draft regulation implementing Title VI.  The five-percent threshold is consistent with the approach taken in the provisions of the Voting Rights Act, see 42 U.S.C. § 1971 note, which require jurisdictions to provide bilingual assistance when certain numerical thresholds are present.  The 100-person threshold is used in the Medicare pre-award clearance reviews conducted by the Office for Civil Rights.  See Investigative Procedures Manual, ch. 18, p. 11.

We recognize that States may legitimately object that existing data sources are insufficient for establishing accurate thresholds, and we agree that this is often the case.  The solution however is not to abandon a policy of establishing thresholds.  We prefer that States and the Department analyze gaps in existing data sources and implement collection of additional data that will be adequate for this purpose.  We offer some specific recommendations in the final section of these comments.

Some language groups may not be proportionately or numerically "significant" in a service population, and/or some LEP individuals will lack literacy or lack a written language.  In these cases, the Department should also clarify that Title VI requires that linguistic access to information contained in the written materials must also be available to all LEP persons regardless of how many others speak their language.

For linguistic services for language groups which are significant proportionately or numerically, States and the Department should consider encouraging providers to have paid, trained interpreters or bilingual providers on staff.  These face-to-face services are often more effective for communication as well as being more cost-effective than sole reliance on telephone interpreter services.

3.  Minimum Standards and Procedures.  HHS should implement procedures for providing children and their families with linguistic and culturally competent access at all stages of service:  from outreach to enrollment to delivery of services to grievances and appeals.  The Department should strongly recommend these standards and procedures for states and contracted entities with any LEP individuals, and should require standards for written materials when states and contracted entities have numbers of LEP individuals that meet thresholds.

As a first step in defining the standards and procedures, the HHS Office of Minority Health has published a "Draft Standards on Culturally and Linguistically Appropriate Health Care," see 64 Fed. Reg. 70042-70044 (Dec. 15, 1999).  These provide a useful benchmark for the special consideration the Department should give to ensuring the cultural and linguistic competency of a CHIP program.  For example, without standards for training and competency assessment, it cannot be assumed that because a worker is bilingual she or he is sufficiently familiar with medical terms and concepts in both languages to provide competent translation services.

Another important minimum standard is a prohibition on states and contracted entities from requiring, suggesting, or encouraging beneficiaries to use family members or friends as interpreters.  This practice should be used only as a last resort, and in all instances, the Department should absolutely prohibit the use of minors as interpreters regardless of the beneficiary’s request or willingness.  There should also be explicit instructions to provide clear translated signage and written materials informing applicants and clients of their right to receive bilingual or interpreter services.  See attachments for more analyses of these issues.

SECTION-SPECIFIC RECOMMENDATIONS

We specifically recommend that the following sections emphasize Title VI’s mandate to provide access to LEP persons—both through staff and appropriate materials—in the areas of outreach, applications, enrollment, delivery of services, and grievance and appeal procedures.

This section correctly reminds states that they are required to comply with civil rights laws.  However, the section and the preamble should explain that states will violate civil rights laws if they fail to provide linguistically appropriate and accessible services.  The final regulation should provide more information on each of the listed civil rights statutes and should include examples of violations and compliance.

We are concerned that the section does not address the civil rights duties of contractors.  Many states contract and sub-contract to entities to administer their programs.  Section 457.130 should explain that contracted entities are also required to comply with civil rights laws.  In addition, the following sections, and the discussions of each in the preamble, should emphasize that the Department requires contracting entities to comply with civil rights protections:  § 457.940 Procurement standards, § 457.945 Certification for contracts and proposals, § 457.950 Contract and payment requirements including certification of payment-related information.

5.  § 457.90 Outreach.  This section should state that bilingual outreach workers, linguistically appropriate materials, and culturally appropriate strategies must be provided when needed.  The preamble should elaborate on Title VI’s mandate for linguistic access to services and give examples of how states and contracted entities can comply.

6.  § 457.110 Enrollment assistance and information requirements.  HHS should require states to provide translated oral and written notices, including signage at key points of contact, informing potential applicants in their own language of their right to receive interpreter services free of charge.  This section should state that bilingual enrollment workers and linguistically appropriate materials are necessary to ensure that LEP families make informed health care decisions.  Again, the preamble should explain Title VI’s mandate for linguistic access to services and give examples of how states and contracted entities can comply.

7.  § 457.361 Application for and enrollment in CHIP.  The regulation should state that application assistance (part a) must include the use of bilingual workers, translators, and linguistically appropriate materials for LEP populations as required under Title VI.  Regarding notices of rights and responsibility (part b) and decisions concerning eligibility (part c), the regulation should state that under Title VI, the State must take reasonable steps to convey this information in a culturally and linguistically appropriate manner to ensure that all applicants, including those who are LEP, are given notice of and understand their rights, responsibilities, and decision concerning their eligibility.  The preamble should include an explanation of the Title VI mandate and give examples of how states and contracted entities can comply.

8.  § 457.365 Grievances and appeals / § 457.985 Enrollee rights to file grievances and appeals.  The regulation should require bilingual workers and linguistically appropriate materials regarding grievances and appeals when needed.  The preamble should explain the Title VI mandate requiring linguistic access to services and give examples of how states and contracted entities can comply.  Both the preamble and regulations should make clear that the failure to provide linguistically and culturally appropriate notices and services is grounds for filing a grievance or appeal.

9.  § 457.995 Overview of beneficiary rights.  This section should also list beneficiaries’ rights to linguistic access to services.  The preamble should explain these rights and give examples of how states and contracted entities can comply, such as providing bilingual workers selected through formal criteria for translation vendors, and linguistically appropriate materials that include accommodations (such as oral, audio, or video formats) for LEP speakers who do not read well in their primary language or whose languages lack a written version.

C.  Protection of Immigrant Privacy and Confidentiality

A major goal of the Administration has been to increase the health care coverage of uninsured children. As stated by President Clinton as recently as October 12, 1999, "It is simply inexcusable that we’ re sitting here, and have been with the money for two years to provide health insurance to 5 million kids and 80 percent of them are still uninsured."  Health Care Policy Report, BNA, Vol. 7 No. 41 at 1627, citing speech by President Clinton to the American Academy of Pediatrics.

Creating fear of applying for benefits is directly counter to the President’s goal and we believe HHS should take all necessary steps to ensure that eligible children are not discouraged from enrolling in CHIP.  When States request information from immigrants about their immigration status or their Social Security numbers, many parents who fear adverse immigration consequences for themselves or for other household members choose not to enroll their eligible children in CHIP.  States should ask only for information on immigration status and Social Security numbers that is necessary for eligibility determinations.

HHS stated in a letter to State Health Officials on September 10, 1998,

The citizenship or immigration status of non-applicant parents (or other household members), however, is irrelevant to their children’s eligibility.  States may not require that parents disclose this information.  (Letter to State Health Officials from Sally Richardson, Director, Sept. 10, 1998.)

In a letter to Georgia’s Commissioner of Human Resources, HHS said that asking questions about immigration status:

. . .raises concerns that it makes receipt of Federal Medicaid and Temporary Assistance to Needy Families (TANF) benefits contingent upon the certification and documentation of the citizenship and immigration status of non-applicant household members even though such information is irrelevant to the application and enrollment processes.  This Georgia cannot do.  In addition, these inquiries may be discouraging eligible individuals from applying for Medicaid or TANF benefits.  (Letter to Mr. Tommy Olmstead from Alvin Collins, Office of Family Assistance, Administration for Children and Families; Sally Richardson, HHS Center for Medicaid State Operations; and Thomas Perez, HHS Office of Civil Rights, July 15, 1999.)

In addition to HHS’ policy that States should not ask information about non-applicants, the courts have precluded questions about the immigration of status of non-applicants in the Food Stamp program.  In Doe v. Miller, the United States District Court addressed whether noncitizen parents of citizen children who were applying for Food Stamps should be required to provide information about their immigration status.  The court stated:

an alien who applies for benefits only on behalf of his eligible citizen children cannot lawfully be forced, in effect, to either withdraw the application or provide defendants with information and documentation regarding the immigration status of members of the household who are not seeking benefits for themselves. Doe v. Miller, 573 F.Supp. 461, 465 (D. Ill. 1983).

Since parents are applying for CHIP for their children, the same rationale applies as in Doe v. Miller.  The parents are ineligible and thus the State does not need any information about their immigration status.

Once information about immigration status is collected, federal law permits transmission of this information by State and local government officials to the INS which could result in deportation if the immigrant is not lawfully present in the United States.  42 U.S.C. §§ 611a, 1437y, Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) § 404; 42 U.S.C. 1644, PRWORA 434; 8 U.S.C. § 1373, Illegal Immigration Reform and Immigrant Responsibility Act § 642.  Furthermore, the Department of Justice (DOJ) has recognized privacy concerns of individuals applying for benefits on behalf of themselves or their eligible children.  In its Interim Guidance on verification, DOJ stated that entities required to verify immigration status "should use the citizenship and immigration status information received only for purposes of verifying the applicant’s eligibility for benefits.  Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.  As clarified in its proposed regulations on verification, an "applicant" is:

the individual who will receive the public benefit should the application be granted.  A person applying for a public benefit on behalf of another, representing an individual seeking a public benefit, or seeking to facilitate an individual’s application is not an applicant unless that person is seeking a public benefit for himself or herself.  Verification of Eligibility for Public Benefits, Proposed Rule, Department of Justice, 63 Fed. Reg. 41662, 41676, proposed section 104.1 (August 4, 1998).

Thus, according to both DOJ and HHS policies, a State is prohibited from conditioning a child’s CHIP benefits upon the certification and documentation of the citizenship and immigration status of non-applicant household members.  States should not ask this information and are prohibited from verifying the status of any non-applicant who voluntarily provides this information.

HHS has already taken steps to review whether States’ joint applications for cash and other benefits include questions not necessary for eligibility determinations.  It is our understanding that approximately 42 States request the citizenship status of all household members, including the applicant.  Only nine States currently ask only for the citizenship of applicants.  Without mandates from HHS in regulations, similar results could occur in CHIP applications.  The CHIP regulations should explicitly incorporate the policy, as set forth in the letters to State Health Officials in 1998 and to Georgia in 1999, that States should not collect information extraneous to eligibility determinations, such as the citizenship status of non-applicants.

Finally, any requirement that applicants and participants provide Social Security numbers also would prevent large numbers of immigrants who need CHIP services from participating in the program, leading to many tragic health consequences.  Our experience with safety net programs strongly shows that requirements for Social Security numbers profoundly deter immigrants, including legal immigrants, from participating in programs for which they are eligible.  Immigrant communities know the extent to which government agencies and other entities in our society now view the Social Security number as a proxy for immigration.  Declines in participation in critical programs like Medicaid, food stamps, and other vital services have already resulted from the perception that participation in these programs will lead to immigration law entanglements.  The discriminatory effect of such a requirement has been explained by the HHS Office of Civil Rights (OCR) which has taken the view that requiring Social Security numbers causes a decrease in social service program participation that has a disparate impact on immigrants.

RECOMMENDATIONS

1.  § 457.320(b)(4) Other eligibility standards (prohibition on requiring social security numbers).  For the foregoing reasons, we strongly support the prohibition on States from asking for Social Security numbers from applicants or other household members.  We applaud the Department for his provision and believe it will encourage enrollment of eligible immigrant and citizen children in this critical health insurance program.  As HHS clarified in a September 10, 1998 Dear State Medicaid Director letter, the CHIP statutes do not require applicants to provide social security numbers.  Only applicants for and recipients of Medicaid need to provide social security numbers.

2.  § 457.320(b)(7) Other eligibility standards (citizenship status of non-applicants).  We recommend that the regulation expressly prohibit States from asking questions about the immigration status of parents or household members of applicants.  While the regulations do prohibit States from excluding individuals based on citizenship or nationality, this does not adequately address the fact that immigrants are deterred from applying when States seek information about the citizenship or nationality of individuals other than the applicant.

We recognize that if a State receives a waiver to provide a family coverage option under CHIP, see § 457.1010, the State will need to verify the immigration status of any applicant.  Only in these limited circumstances should a State ask for immigration status of the parents.  Thus, even in this situation, if one parent wishes to apply and the other does not, the State may only request the immigration status of the applicant-parent and the status of the non-applicant parent is irrelevant to the eligibility determination.  Since the vast majority of States, however, will not provide family coverage because of cost effectiveness requirements, this question should not be included on a State’s general application.  If a State does provide family coverage, the State could have the parent complete the same application as the child which requires information about the applicant’s immigration status.

D.  Verification

We are concerned about the treatment in the proposed regulations of issues regarding verification of an individual’s citizenship status.  The preamble recognizes that HHS issued a letter on September 10, 1998 which advised States that a self-declaration of U.S. citizenship is sufficient proof for benefit applications.  However, the preamble then states HCFA’s prediction that the final rule on verification from INS will not permit self-attestation.  The final rule may or may not allow for self-attestation, and it is inappropriate to base CHIP regulations on predictions about what they will say.  This discussion in the preamble is premature and may result in States erroneously rejecting self-attestations.

Nowhere else in the regulations does HHS refer to proposed rules which might affect the functioning of CHIP.  For example, HHS’ recently proposed regulations on medical privacy could dramatically impact administration of CHIP programs.  Yet the CHIP proposed regulations make no mention of those proposals which, like the INS proposed rules, currently have no legal force.

Many advocates have submitted comments on the proposed INS regulations requesting changes in the provision regarding self-attestation in the verification regulations.  U.S. citizens are accustomed to self-attestation and are rarely prepared to prove their citizenship status when they visit an agency to make an application.  Self-attestation greatly increases enrollments because it eliminates additional documentation requirements which are burdensome to all citizens but especially to low-income citizens.  We hope the final rule may change the proposed rule such that HHS’s current policy allowing self-attestation would continue unchanged.

It is also unnecessary to include language in the preamble that self-attestation may be insufficient proof of citizenship.  Because of the requirement that States abide by other laws related to CHIP eligibility, see § 437.320(b)(6), which of course would include final verification regulations, HHS need not include a separate reference to the verification requirements.

Even if the final verification regulations ultimately prohibit self-attestation, States will have two years from issuance of the final regulations to come into compliance.  Thus, a State could continue to allow self-attestation through 2002 (since the regulations will probably not be issued until early 2000).  This provides HHS ample time to implement citizenship proof standards other than self-attestation if self-attestation is no longer acceptable under the INS final rule.  Thus, we recommend that HHS amend the preamble.

Finally, in § 457.320(c), HHS should omit the reference in the proposed regulations that, in establishing eligibility for CHIP, States must abide by § 432 of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA).  Since the proposed regulations require States to abide by existing federal law, see § 457.430(b)(6), a specific reference to § 432 is redundant.  This provision is also confusing because it requires States to "obtain proof of citizenship," implying some affirmative duty to gather information from an applicant when, as noted above, self-attestation is currently accepted.