Feds Order Physicians and Health Care Providers to Provide Free Language Translation Services to Limited English Proficient Patients: Colwell V. United States Department of Health and Human Services

Abstract

For 2400 years society has been confident that physicians will use their professional judgment in treating their patients. Recently the federal government has intruded into the patient-physician relationship by adopting a requirement that physicians provide free oral and written translation services to limited English proficient patients, without reimbursement, or face possible prosecution for national origin discrimination under Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination on the grounds of race, color, or national origin. Neither language nor limited English proficiency status are protected classifications. This unprecedented expansion of Title VI is being challenged in Colwell v. United States Department of Health and Human Services. This paper argues that the federal government's intrusion into the patient-physician relationship is invalid. First, although the policy is a legislative rule creating new obligations for physicians, the government gave no prior notice of the policy change in violation of the notice and comment rulemaking requirements of the Administrative Procedures Act. Second, the rule is ulta vires because nothing in Title VI supports equating language with national origin. Third, the rule is overbroad and unconstitutionally vague in violation of the First Amendment.