Brenda Aguilar
Office of Information and Regulatory Affairs
Office of Management and Budget
Washington, DC 20503
RE: Request for Information: Assessment of Cost and Benefits Associated with Implementation of Executive Order 13166
Dear Ms. Aguilar,
The National Health Law Program (NHeLP) submits these comments on behalf of NHeLP and the undersigned organizations in response to OMB's Request for Information published in theFederal Register on November 30, 2001. As organizations advocating and educating on health issues, we have tailored our responses to address the health care arena. These organizations represent a large and diverse group of Medicaid beneficiaries, including children, people with disabilities, immigrants and refugees, limited English proficient individuals, and others.
The resolve of President Bush to put "a priority on access to health care," and the Administration's commitment to Executive Order (EO 13166) and its implementing guidances offer a bright beacon of light for individuals currently consigned to the shadows of our health care system due to linguistic barriers. We applaud the Administration for recognizing the importance of ensuring the access of limited English proficient ("LEP") individuals to all government services, especially health care. We strongly support EO 13166 and the subsequent guidances issued by the Departments of Justice, Health and Human Services' Office for Civil Rights (OCR), and other Departments. The EO and subsequent guidances provide much needed clarification for health care and social service providers regarding their role in upholding Title VI of the Civil Rights Act of 1964. The federal government's endeavor to implement the EO is critically important to ensure that LEP persons have fair and equal access to the health care and social services to which they are entitled. The EO and subsequent guidances establish the key principle that all federal services B whether by a federal agency or a federal fund recipient B must be accessible to every LEP person, yet they recognize the pivotal role of flexibility in determining the provision of services by federal fund recipients.
We have organized our comments to follow the questions/issues raised by OMB in its Request for Information.
1. Determining how best to quantify the numbers of LEP individuals and which languages they speak.
A number of different methods exist to quantify the numbers of LEP individuals and which languages they speak. The 1990 Census provides the most comprehensive data on these two issues. (The 2000 Census data on language use will be available in the summer of 2002.) The 1990 Census asked respondents to answer the following questions: (1) Does this person speak a language other than English at home?; (2) What is this language?; and, for those who speak another language at home, (3) How well does this person speak English? B very well, well, not well, not at all. This data is available by state and region, providing a baseline for the number of LEP individuals and their languages. Yet there are concerns about the completeness of the Census data due to the recognized undercount of minorities, particularly recent immigrants and non?citizen residents. To provide a more accurate quantification of the numbers and languages of LEP individuals, we would suggest that any use of Census data be adjusted in the manner that demographers or other expert deem appropriate to reconcile any possible undercount.
Decennial Census data should also be supplemented by reliable data which more clearly reflect the LEP population within a particular community. For example, additional census data B such as the Supplementary Survey B may provide more specific data on the municipal level. And a forthcoming nationwide expansion of the American Community Survey beginning in 2003 will allow for the collection of language proficiency and other long?form data on a yearly basis. specific federal regulations provide a method of quantifying the numbers and languages of LEP individuals served by health programs.
In addition to Census data, data from other sources may be available. Pursuant to recently proposed Medicaid managed care regulations, states must establish a methodology (e.g. geographic composition, population density, enrolled population) for identifying the prevalent non-English languages spoken by enrollees and potential enrollees throughout the state. Proposed 42 C.F.R. ' 438.10(c), 66 Fed. Reg. at 43662. The regulations define "prevalent" as a non-English language spoken by a significant number or percentage of potential enrollees and enrollees in the state. In addition to establishing a methodology, each state's quality assessment strategy must include procedures to identify the primary language of each Medicaid enrollee and notify the managed care organization or prepaid in-patient health plan at the time of enrollment. Proposed 42 C.F.R. ' 438.204(b)(2), 66 Fed. Reg. at 43668. Both of these provisions require states B independent of EO 13166 B to collect the primary language of enrollees and determine the prevalent languages so that the state and managed care entities can ensure access by LEP individuals to the Medicaid program.
Some health care providers have also used information on school enrollment and from refugee re-settlement programs to further refine their data.
2. Understanding the number of different languages spoken by LEP individuals, and their geographic distribution.
As noted in our answer to Q. 1, the available 1990 Census data and forthcoming 2000 Census data will provide the most relevant information to understand the number of different languages spoken by LEP individuals and their geographic distribution. Once the Medicaid managed care regulation is finalized and states begin collecting data, another source of information specifically related to health care will be available.
Another source of data to understand the number of different languages and their geographic distribution are community health centers (CHC) which collect data on linguistic preference. The CHC's Uniform Data Set (UDS) reports the percentage of users needing interpretation, bilingual or Sign Language services.
3. Characterizing the interactions of LEP individuals with both federal and federally funded entities. For example, how frequently do LEP individuals interact with government at all levels? What types of government services do LEP individuals typically access? Are there types of services that LEP individuals access more or less frequently than non?LEP individuals?
While the interaction of LEP individuals with federal and federally-funded programs is widespread B including schools, refugee resettlement, INS, health care services, and transportation B current program policies, especially in health care, dramatically hinder the ability to characterize the interaction of LEP individuals with federal and federally funded programs. We wish to raise two concerns: 1. the lack of data collection by federal and federally-funded programs precludes an accurate assessment of those LEP individuals who do access these programs; and 2. language barriers have hindered LEP individual's access to these programs.
Government agencies and recipients of federal financial assistance currently fail to collect primary language data of individuals utilizing federal and federally-funded services. If collected, this data would provide concrete evidence of the types of services LEP individuals typically access, whether some services are used more or less frequently and what types of linguistic and cultural competency services should be implemented to assist in this access. For example, as suggested in the Office of Minority Health's National Standards on Culturally and Linguistically Appropriate Services (CLAS) in Health Care, health care organizations should include a patient's race, ethnicity and spoken and written language in health records and the organization's management information systems. The routine collection of this data would provide accurate information for evaluations like those being undertaken here by OMB, and would also allow providers to tailor their services to address the needs of LEP individuals. On the other hand, no amount of improvement in utilization data will capture information on LEP individuals who should be benefitting from a given program but never even try to do so because of a perceived or actual inability of the agency to communicate with them.
4. Determining the costs and benefits of improving English language proficiency among LEP individuals.
Increasing English language proficiency among LEP individuals would decrease their need for interpreter and translation services. Toward that end, fostering completion of English as a Second Language (ESL) classes would improve English language proficiency among LEP individuals. Yet programs providing English as a Second Language (ESL) classes are chronically underfunded. In many major metropolitan areas, the waiting list for entry into ESL classes extends to months or years. In New York City, for example, the wait is currently as long as two years. If additional funding were provided, more individuals could learn English. The initial cost outlay to subsidize ESL classes would be offset by the eventual benefit of needing fewer interpreters or translations for these individuals.
We do not suggest, however, that fully funding ESL classes will obviate the need for medical interpreters. Many LEP individuals who achieve some level of English proficiency will nonetheless not understand medical terminology. Trained medical interpreters provide the knowledge of complex terminology essential to ensuring a patient's understanding of a medical diagnosis and treatment, as well as bringing cultural sensitivity to the provider?patient interaction.
5. Understanding and quantifying the level of services provided by the government or government funded organizations to address the special needs of LEP individuals prior to Executive Order 13166 and to what extent changes will be necessary to achieve full compliance with Executive Order 13166 and related agency guidance.
The requirement that recipients of federal financial assistance provide access to LEP individuals in assisted programs and activities is not new. In 1964, Congress enacted Title VI of the Civil Rights Act which prohibits discrimination on the basis of national origin and ensures LEP individuals access to federal and federally-funded programs.
In ensuring access for LEP individuals in the health care arena, OCR has had the responsibility to enforce Title VI for over 30 years, has investigated hundreds of complaints, and has negotiated dozens of voluntary resolution agreements. For example, in 1998 it issued an internal guidance memorandum on LEP instructing its regional offices on enforcement of Title VI "to ensure consistency in OCR's investigation of LEP cases." The EO and OCR's current LEP Guidance merely clarify, for all federal fund recipients as well as the general public, the recipients' existing legal obligations under Title VI. Thus, as the EO and implementing guidance recognize, no new requirements or mandates have been effectuated by the EO.
Indeed, as many existing regulations demonstrate, agencies have long-standing policies which require providing language assistance or cultural competency as a condition of receiving funding. These regulations include:
$ HHS generally B 45 C.F.R. ' 80.4(a) requires every application for federal financial assistance, as a condition of approval, to include an assurance that the program will be conducted or the facility operated in compliance with all requirements of Title VI. States must adopt methods of administration for the program that give reasonable assurance that the applicant and all recipients of federal financial assistance under the program will comply with all the requirements imposed by Title VI;
$ Medicaid generally B 42 C.F.R. ' 435.901 requires a state Medicaid agency's standards for determining eligibility be consistent with the rights of individuals under Title VI;
$ Medicaid managed care B
< Proposed 42 C.F.R. ' 438.10(c) would require: (1) states to develop a methodology for identifying LEP individuals and provide written information in each prevalent non-English language, and to require each managed care entity to make its written information available in the prevalent non-English languages in its particular service area; (2) the state and managed care entities to make oral interpretation available free of charge to each potential enrollee and enrollee; and (3) the state and all managed care entities to notify enrollees and potential enrollees that oral interpretation is available for any language and written information is available in prevalent language and how to access those services;
< Proposed 42 C.F.R. '' 438.6(f)(1), .8(a)(1) would require all Medicaid managed care contracts to comply with Title VI;
< Proposed 42 C.F.R. ' 438.206 would require states to ensure that managed care organizations and prepaid in-patient health plans participate in the state's efforts to promote the delivery of services in a culturally competent manner to all enrollees, including LEP individuals and those with diverse cultural and ethnic backgrounds;
< Proposed 42 C.F.R. ' 438.100 would require states to ensure that each managed care entity complies with Title VI;
$ State Children's Health Insurance Program (SCHIP) B 42 C.F.R. ' 457.130 requires the State plan to include assurances of compliance with Title VI ;
$ Medicare B 42 C.F.R. ' 489.10(b)(1) requires that all providers must meet the applicable civil rights requirements of Title VI;
$ Medicare Plus Choice (M+C) B 42 C.F.R. ' 422.112(a)(9) requires all M+C organizations to ensure services are provided in a culturally competent manner to all enrollees, including those with limited English proficiency;
$ Hill-Burton supported programs B 42 U.S.C. 300s(6), 300s-6 and 42 C.F.R.124.9, 124.603 outline the community service assurance requirement which mandates that recipients of Hill-Burton funds make services available to persons residing in the facility's service area without discrimination on the basis of race, color, national origin, creed, or any other ground unrelated to the individual's need for the service or the availability of the needed service in the facility;
$ Community health centers B 42 U.S.C. ' 254b(j)(3)(K) requires that centers that serve a substantial proportion of individuals of limited English-speaking ability must, to the extent practicable, make arrangements to provide services in the most appropriate language and cultural context;
$ Maternal and Child Health block grant B 42 C.F.R. ' 51a.7 requires grantees to abide by Title VI;
$ Department of Defense B 32 C.F.R. Part 195 requires each applicant for federal financial assistance to include assurances of compliance with Title VI ; and
$ Department of Veterans Affairs B 38 C.F.R. ' 18.4 requires applicants for federal financial assistance to provide assurances of compliance with Title VI.
6. Quantifying and describing the costs to the Federal Government or recipients of federal funds of providing oral and written translation services.
The Costs of Providing Language Assistance Which Should Be Excluded from the Costs of Implementing EO 13166
While we recognize that, pursuant to P.L. 107-67, OMB must issue a report assessing the total costs and benefits of implementing EO 13166, we believe that the initial threshold OMB must address is what costs are directly associated with implementing the EO as opposed to the expected and ongoing costs of implementing Title VI of the Civil Rights Act of 1964.
Thus, as discussed in our answer to Q. 5 and as the EO and implementing guidance recognize, no new requirements or mandates have been effectuated by the EO. Rather, the EO merely clarifies the existing responsibilities of recipients of federal financial assistance. Since recipients have been mandated to provide access to LEP individuals for over thirty-five years, OMB need not include any costs that recipients of federal financial assistance were already required to undertake in the costs of implementing EO 13166.
In addition to excluding the costs associated with ongoing compliance with Title VI, OMB should also exclude the costs of linguistic access required by other laws and/or policies. These include costs to comply with:
$ state and local laws/ordinances regarding language assistance and/or cultural competency;
$ federal and/or state contract requirements to provide language assistance and/or cultural competency; and
$ the requirements of accrediting organizations.
State Laws and Local Ordinances
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