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The U.S. District Court for the Southern District of California has
dismissed a case challenging the validity of the U.S. Dept. of Health
and Human Services (HHS) guidance on access to services for persons with
limited English proficiency. The HHS released the guidance in
accordance with Executive Order 13166, which President Bill Clinton
issued in Aug. 2000, directing federal agencies to develop guidance that
advises federal funds recipients on how to ensure that limited English
proficient (LEP) persons have meaningful access to services. Ensuring
that LEP persons have meaningful access to their services is a
requirement that federally funded agencies must meet under the
prohibition against national origin discrimination provided for by Title
VI of the Civil Rights Act of 1964.
The plaintiffs in the dismissed lawsuit—the
Association of American Physicians and Surgeons (AAPS), several of its
member physicians, and the advocacy organization ProEnglish—sought a
preliminary injunction to enjoin the HHS’s implementation and
enforcement of the guidance. The plaintiffs claimed that (1) the
guidance violated the federal Administrative Procedure Act (APA) because
it was not issued according to the APA’s notice and comment rulemaking
procedures; (2) the HHS exceeded its authority in issuing the guidance
because it improperly equated language proficiency with national origin;
and (3) the guidance infringed their First Amendment rights by forcing
them to speak in a manner they did not choose to.
The court dismissed
each group of plaintiffs’ claims, finding that all lacked the legal
standing necessary to bring the case. With respect to the physicians,
the court pointed out that the guidance directs federal funds recipients
to apply a four-part balancing test to determine the nature of their
obligation to provide language assistance, but that neither the
plaintiffs nor the HHS had applied the four-factor test to the
plaintiffs. Even assuming, the court continued, that the guidance
created a specific obligation for the physician plaintiffs to provide
interpretive services in a given language, the plaintiffs had failed to
demonstrate that they had actually incurred any injury in attempting to
comply with the guidance. Likewise, the court determined that the
physician plaintiffs had failed to demonstrate any injury to their
professional reputations, physician-patient relationships, or First
Amendment rights. At best, the court stated, “the Physician Plaintiffs’
claims were generalized, conjectural and hypothetical.” One of the
physicians was also found not to be a recipient of federal funds.
The court likewise
concluded that ProEnglish, described as an “advocacy organization
dedicated to the preservation and promotion of English as a common
language in American political and governmental life,” and the AAPS, a
national nonprofit association of medical doctors that claims it “is
dedicated to preserving freedom in the practice of medicine” and
“opposes government interference in the doctor-patient relationship,”
had also failed to demonstrate an injury that conferred standing. The
organizational plaintiffs had asserted that they had standing both as
organizations and as representatives of the individual plaintiffs who
were their members. The court concluded that their claim of
representative standing failed because of the members’ lack of
standing. Likewise, the claim of organizational standing failed because
neither ProEnglish nor the AAPS had shown any actual harm to their
organizations.
According to
ProEnglish’s website, the decision is being appealed to the Ninth
Circuit Court of Appeals.
Colwell, et al. v. U.S. Dept. of Health and Human Services,
No. 04CV1748BTM (Mar. 7, 2005).
By
Gabrielle Lessard, NILC
health policy attorney
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