I. Background
Almost 20% of the United States? population speaks a language other than English at home. Over 24 million, or 8.7% of the population, speak English less than very well and should be considered limited English proficient (LEP) for health care purposes.2 This includes 47% of Spanish speakers, 33% of speakers of other Indo-European languages, 49% of speakers of Asian and Pacific Islander languages, and 30% of speakers of other languages.
Numerous studies have documented the problems associated with a lack of language services, including one by the Institute of Medicine, which stated that:
Language barriers may affect the delivery of adequate care through poor exchange of information, loss of important cultural information, misunderstanding of physician instruction, poor shared decision-making, or ethical compromises (e.g. difficulty obtaining informed consent). Linguistic difficulties may also result in decreased adherence with medication regimes, poor appointment attendance, and decreased satisfaction with services. (Cites omitted.) 3
Over one quarter of LEP patients who needed, but did not get, an interpreter reported they did not understand their medication instructions, compared with only 2% of those who did not need an interpreter and those who needed and received one.4 Lack of language services limits the amount and quality of care LEP individuals receive.5 For example, patients are less likely to understand medication instructions when they do not have access to language services.6 LEP patients in emergency rooms get access to fewer services.7
Indeed, language barriers have been found to be as significant as the lack of insurance in predicting use of health services. Health care providers surveyed in four major metropolitan areas identified language difficulties as a major barrier to immigrants? access to health care and a serious threat to medical care quality. These providers also expressed concern that they could not get information to make good diagnoses and that patients might not understand prescribed treatment.8 On the other hand, while Latino children generally have much less access to medical care than do white children, that gap becomes negligible when their parents? English-speaking skills are comparable to those of Whites.9
In addition, there are issues as to the quality of care received by those patients without interpreter services. At the actual point of service, providers will have communication issues with patients who cannot explain their symptoms or readily understand questions or instructions. This increases barriers to care, and often creates dangerous delays, unnecessary and risky procedures, increasing the chances of negative outcomes. Bad outcomes and delayed access increases health care system costs. In a report recently released by the National Health Law Program, a survey of one malpractice carrier?s closed claims to identify claims involving language barriers found 2.5% of the cases involved language issues and cost the carrier over $5 million in damages, settlements and legal fees.10 With language services, individuals suffering from chronic conditions or conditions can be treated easily through primary and preventive care. If routine access is effectively denied, these conditions are exacerbated and require costly emergency interventions and treatment.
II. ACA § 1557
The ACA expressly extended the protections of Title VI, Title IX, Section 504 of the Rehabilitation Act and the Age Discrimination Act to apply to the Exchanges themselves through a nondiscrimination requirement.11 Section 1557 explicitly extends these civil rights provisions to ?any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title. ?12 The nondiscrimination protections in these statutes thus apply to any provisions initiated by the ACA, including the tax credits and cost-sharing subsidies in the Exchanges.13 Thus plans would have a responsibility to provide appropriate language services, in addition to Title VI of the Civil Rights Act of 1964, because of this nondiscrimination requirement. Because the Exchanges are created by Title I of ACA, they are subject to this provision and cannot discriminate on the basis of ?national origin? which, as discussed below, the Supreme Court and HHS have defined to include meaningful language access.
III. Title VI of the Civil Rights Act of 1964
Under Title VI of the Civil Rights Act of 1964,14 no federal funds can be used in a discriminatory manner, whether intentionally, or, pursuant to federal regulations, through disparate impact. Title VI applies to all programs receiving Federal financial assistance, including private entities. Congress has defined covered programs to include ?an entire corporation . . . if assistance is extended to such corporation . . . or which is principally engaged in the business of providing education, health care . . . .?15 A program also includes ?[t]he entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship.?16 Discrimination under Title VI has been
determined to include preventing meaningful access to federally funded services for ?national origin minorities? with limited English proficiency (Title VI prohibits discrimination on the basis of national origin). In 1974, the Supreme Court concluded that programs with a discriminatory impact against individuals based on their language are akin to those which discriminate based on national origin.17 In 2000, President Clinton issued an Executive Order enlisting all Federal agencies to expand LEP access to their programs and grantees.18 The Order instructed Federal agenciesto develop LEP guidelines for Federal financial assistance received through their activities in accordance with the Department of Justice (DOJ).19
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