A new executive order (EO) sets English as the official language of the U.S. and revokes Executive Order 13166, signed by President Clinton in 2000. EO 13166 reiterated longstanding law and policies related to language access for individuals with limited English proficiency and ensured that federal agencies worked to eliminate discrimination against LEP individuals. While the new EO applies across the entire federal government, we are focusing our discussion on the implications at the Department of Health & Human Services (HHS).
Over 25 million individuals in the United States – over 8% of the population – are limited English proficient (LEP) and speak English less than very well. When accessing health care services, a lack of effective communication between patients and health care providers can result not just in miscommunication and risks to patient safety but also significant adverse outcomes including death.
Executive orders cannot overturn existing statutes, that would require Congress to pass a new law. Despite the new executive order and the rescission of EO 13166, language access remains the law. Both Title VI of the Civil Rights Act of 1964 and Section 1557 of the Affordable Care Act prohibit discrimination on the basis of “national origin” which the Supreme Court and HHS have interpreted as including language. Together, Title VI and Section 1557 apply to all health programs and activities funded by the federal government, operated by a federal agency, and created under Title I of the Affordable Care Act (including marketplaces and qualified health plans).
Further, both Title VI and Section 1557 regulations, issued by the Department of Health and Human Services’ Office for Civil Rights, set out specific expectations for compliance with the statutes that cannot be unilaterally changed by executive order. Other HHS regulations also require language access (e.g. Medicaid, Medicare and marketplace regulations). Executive orders cannot change regulations which must go through formal revisions and public notice-and-comment process.
The EO also directs the Attorney General to rescind LEP guidances based on EO 13166. Many federal agencies developed their own LEP guidance and LEP agency plans. To the extent those guidances were built on the structures of the underlying statutes and regulations which remain in place, the tenor and content should remain viable even if formally rescinded. Further, the EO states:
Agency heads should make decisions as they deem necessary to fulfill their respective agencies’ mission and efficiently provide Government services to the American people. Agency heads are not required to amend, remove, or otherwise stop production of documents, products, or other services prepared or offered in languages other than English.
We should all advocate that HHS (as well as other federal agencies) continues to provide effective language access as part of its mission to serve all individuals in the United States and to comply with Title VI and Section 1557. And educate providers to continue to follow the law and LEP individuals about their rights.
It is callous that the Administration felt a need to rescind an EO that effectively reiterated what has been the law since 1964. The new EO ignores not only the benefits a diverse population contributes to our society but also the consequences of a lack of effective communication in healthcare. Unfortunately, the EO is likely to have a chilling effect on individuals who are entitled to language access and providers who benefit from effective communication. Which may be the point – scaring people enough to keep them from accessing healthcare or asking for assistance communicating with healthcare providers. Yet the Administration cannot ignore that it still is the law to ensure that LEP individuals do not face discrimination based on the language they speak.
