Despite the new Executive Order on Language Access, it is still the law!
An executive order (EO), signed by President Clinton in the year 2000, revokes Executive Order 130166 and establishes English as the official U.S. language. EO 13166 reaffirmed longstanding laws and policies related language access for those with limited English proficiency, and ensured federal agencies worked to eradicate discrimination against LEP people. The new EO is applicable to the entire federal government. However, we will focus our discussion on its implications for the Department of Health & Human Services. 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 revocation of EO 13166 language access remains a law. Title VI of Civil Rights Act of 1965 and Section 1557 of Affordable Care Act prohibit discrimination based on “national origin”, which the Supreme Court of the United States and HHS have interpreted to include 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 require language access as well (e.g. Executive orders
cannot change regulations which must go through formal revisions and public notice-and-comment process. Executive orders cannot change regulations that must be revised and subject to public comment.
The EO directs the Attorney-General to rescind LEP guidelines based on EO13166. Many federal agencies have developed their own LEP plans and guidance. The tenor and contents of those guidances should still be valid even if they are formally rescinded, to the extent that they were built on structures of the underlying laws and regulations. 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. The EO states that agency heads are not required by law to remove, amend, or stop producing documents, products, and other services prepared or provided in languages other than English. And educate providers on how to follow the law, and LEPs about their rights. The new EO does not consider the benefits that a diverse population brings to our society, but also the consequences if communication is not effective in healthcare. Unfortunately, this EO will likely have a chilling impact on both individuals who are entitled access to languages and providers who benefit by effective communication. This may be the goal – to scare people into not seeking healthcare or asking for help communicating with healthcare providers. The Administration cannot ignore the fact that it is still the law that LEPs are not discriminated against because of the language they speak.
