The Department of Justice (DOJ) recently issued a memorandum implementing Executive Order (EO) 14224, which purported to set English as the official language of the United States. The DOJ memorandum provides guidance to federal agencies regarding language access for individuals with limited English proficiency (LEP) seeking to access federal programs. We earlier addressed the Executive Order in our blog, Despite New Executive Order, Language Access is Still the Law.
Most importantly, the EO and the memorandum only apply to federal government agencies and do not alter the language access obligations of recipients of federal financial assistance such as state/local health departments, insurance companies, hospitals, clinics and other healthcare providers. Executive orders cannot overturn existing statutes as that would require Congress to pass (and the President to sign) a new law. Title VI of the Civil Rights Act, Section 1557 of the Affordable Care Act, and other federal statutes prohibit discrimination on the basis of “national origin” which the Supreme Court and the federal government have interpreted as including language.
While the EO and memorandum apply to all federal agencies, 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. Data from 2024 indicates that 8% (roughly 4 million) of Medicare beneficiaries had a limited English speaking ability—a number that jumps to 49% of Asian American beneficiaries and 55% of Hispanic/Latino beneficiaries. In 2021, almost 19% (4.9 million) of Medicaid and Children’s Health Insurance Program (CHIP) enrollees were LEP. When it comes to accessing government health insurance programs such as these, lack of adequate language assistance often results in initial enrollment challenges. One study in Illinois found that enrollees with LEP were 5 times more likely to become disenrolled than English speaking enrollees. 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, as outlined in our report, The High Cost of Language Barriers in Medical Malpractice (2010).
The Department of Justice (DOJ) has already taken steps to undermine language access in their own programs, which may indicate the actions we’ll see from other agencies. For example, DOJ rescinded a longstanding guidance to federal fund recipients on their nondiscrimination responsibilities under national origin as they relate to individuals with LEP. Multiple agencies have similar guidance documents that, while over 2 decades old, provide helpful information as entities seek to ensure equal access to their programs. 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. DOJ has also taken down LEP.gov, a website that provided invaluable resources to federal agencies and their recipients from developing language access plans to practice tips for working with interpreters and securing translation contracts.
The DOJ memorandum not only suggests that other federal agencies follow in the footsteps of DOJ in removing public access to decades of technical assistance materials aimed at making the nation more accessible to individuals with LEP, but suggests they take more harmful steps to actively remove language services that are already being provided in favor of English-only communications. But this is not required by the EO and it may not be lawful depending on the context. In fact, the EO explicitly states that:
nothing in this order, however, requires or directs any change in the services provided by any agency. 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.
The Department of Health and Human Services (HHS) provides critical and often life-saving services, including dissemination of information during recent public health crises such as the COVID-19 pandemic and the MPOX outbreak. The provision of these services is absolutely necessary to fulfilling the Department’s mission and to the efficient provision of Government services. That DOJ suggests HHS consider delivering its programs and services in English only as a means to serve the public better or that funds for language services should be diverted to English language acquisition when individuals need immediate care or coverage is contrary to both the mission and efficiency of a federal health agency.
Additionally, specific laws apply to HHS that require the provision of language assistance. For example, Section 1557 of the Affordable Care Act prohibits discrimination on the basis of national origin and applies not only to recipients of federal financial assistance, but also to “under any program or activity that is administered by an Executive Agency.” This statute also applies to Marketplace Exchanges. Section 1557 regulations, issued by HHS’ Office for Civil Rights, set out specific expectations for compliance with the statute that cannot be unilaterally changed by executive order or agency memo. Other HHS regulations also require language access (e.g. Medicaid, Medicare and marketplace regulations). An executive order or agency memo cannot change regulations which must go through formal revisions and public notice-and-comment process.
Agency heads should make decisions as they deem necessary to fulfill their respective agencies’ mission and efficiently provide government services to the American people. 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. We must also continue to educate federal fund recipients such as hospitals and health insurance issuers about their continuing and unchanged obligation to follow the law by providing language assistance, and continue to inform LEP individuals about their rights.
The new EO and the DOJ memorandum ignore not only the benefits a diverse population contributes to our society but also the consequences of a lack of meaningful language access in health care. The memorandum is sowing further confusion initiated by the EO, and enhancing the chilling effect on individuals who are entitled to language access and providers who benefit from effective communication. This is likely the point —scaring people enough to keep them from accessing health care or asking for assistance communicating with health care 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.
