The Fallacy of “Learning the Language” During a Pandemic
“This is a country where we speak English, not Spanish,” then-candidate Donald Trump told Americans during his bid for the Republican Party nomination for President of the United States. Despite not having an official language, this reflexive rhetoric is increasingly common in the United States.
This attitude, however, does not reflect the diversity of many American communities, nor the scheme of federal laws and regulations that protect individuals with Limited English Proficiency (LEP). Language access ensures that children can have a meaningful education in public schools until they achieve English proficiency. It requires meaningful translation services in a court of law. It guarantees what many of us take for granted when we go to the hospital — a way to communicate with nurses and doctors. On a normal day in America, a lack of meaningful language access has heartbreaking and needlessly horrific consequences. In the context of the COVID-19 pandemic, the plight of LEP individuals is nothing short of a crisis. Some towns and cities have fared better than others when it comes to keeping all of the public informed about closures, public safety measures, and medical advice.
An Introduction to Language Access in America
Title VI of the Civil Rights Act (1964) guarantees that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Discrimination based upon national origin also encompasses discrimination based upon language ability. Thus, no “program or activity” that receives federal funding may deny meaningful language access; doing so violates the rights of LEP individuals protected by Title VI of the Civil Rights Act.
“Federal funding” is not limited to monies received directly from the federal government as part of normal budgeting, such as research grants or other forms of cash flow. In the context of health care, federal funding includes money received from Medicare or Medicaid, federally-administered insurance plans. By virtue of receiving reimbursements from the federal government for services rendered to Medicare and Medicaid patients, health care providers become federally funded.
In 2000, Executive Order 13166 supplemented Title VI requirements by requiring that “each Federal agency shall examine the services it provides and develop and implement a system by which LEP persons can meaningfully access those services consistent with, and without unduly burdening, the fundamental mission of the agency.” All entities are, therefore, required to develop and maintain a Language Access Plan “to improve access to its federally conducted programs and activities by eligible LEP persons.”
Limited English Proficiency — Today
At the national level, there appears to be an agenda to deregulate language access requirements by the Department of Health and Human Services (HHS) headed by presidential appointee Alex Azar. The pandemic certainly did not create language access problems, but it has increased the barriers between LEP individuals and basic human services, especially health care. On the prevention front, it’s easy to fathom that, while the majority of Americans struggled to adjust to rapid-changing guidelines regarding masking and social distancing, LEP individuals were the last to receive such guidance. Even in July, we are living with the consequences of Americans intentionally flouting these guidelines; LEP individuals, in some cases, were not receiving the correct guidance from the outset.
The barrier to health care created by language access inequity is tangible in practically every type of community. For instance, ProPublica reported in March that some New York hospitals neglected non-English speaking patients as the state’s infection and hospitalization rates skyrocketed. In Kentucky, the tension between workplace safety and language access became evident as early as April when reporting emerged that translators at the University of Louisville hospital were working with patients face-to-face, with no personal protective equipment. Cue HHS and its March 28 bulletin, reminding “entities covered by civil rights authorities [to] keep in mind their obligations under laws and regulations that prohibit discrimination on the basis of race, color, national origin, disability, age, sex, and exercise of conscience and religion in HHS-funded programs.”
Communities of color have been disproportionately impacted by COVID-19, and so have LEP individuals. Race and ethnicity are not indicators of English proficiency but, as data is limited at this time, race and ethnicity can help us understand which communities are hardest-hit by COVID-19. According to the CDC as of June 12, non-Hispanic black persons have a hospitalization rate approximately 5 times that of non-Hispanic white persons, and Hispanic or Latino persons have a hospitalization rate approximately 4 times that of non-Hispanic white persons. This rate is undoubtedly the result of generational and systemic inequality that generally affects access and quality of health care. One form of systemic inequality is the difficulty of language access at every stage of obtaining health care: making the appointment, effectively communicating with doctors and nurses, maintaining follow-up appointments, filling prescriptions, and following through with taking medications as prescribed. Although the CDC provides resources for LEP individuals, it is incumbent upon health care providers to utilize these tools at the community level.
New HHS Rule Changes Language Access Requirements under the Affordable Care Act
Limiting the spread of COVID-19 requires community buy-in and cooperation. Thus, it’s astonishing that HHS rule-makers chose a pandemic to limit language access in the health care setting. In June, the HHS issued a new final rule that lessens the obligations of health care providers to accommodate non-English speaking patients. The Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority rule modifies a 2016 Obama-era final rule that implemented Section 1557 of the Affordable Care Act (ACA). Section 1557 was the primary anti-discrimination provision in the ACA. It required that health care providers administer notices to patients in a state’s top-15 languages. The new final rule, effective August 18, 2020, would eliminate this requirement in the name of cost savings and the “cognitive overload” of recipients. Gutting Section 1557 was not satisfactory for HHS. The new final rule also removes the requirement that health care providers must post about Section 1557 and nondiscrimination on their websites, calling the practice “administratively burdensome and counterproductive,” even though such notices would actually benefit the patients who are otherwise at risk of not knowing their Title VI language access rights.
Another major change made by the new final rule was the modified scope of a “health program or activity” as it applied to Section 1557. Under the 2016 rule, this term was broadly defined. A health program or activity could include the administration of health care services, provision of insurance coverage, and other individual assistance to those seeking coverage. Under the 2020 rule, the Office of Civil Rights limits “health program or activity” to entities engaged in the provision of health care that actually receive federal assistance.
It is unclear what effect the new final rule will have on America’s LEP population or the spread of COVID-19, or if the effect will be immediately felt. What is clear is that deregulating language access in the midst of a global pandemic reflects where priorities currently lie at the HHS and in the White House. Perhaps an invisible, anti-intellectual thread connects the individuals who seethe, “learn the language!” and the individuals who refuse to wear a mask or socially distance themselves in public.
Katie Davidson is a third-year Human Rights Advocacy Project (HRAP) fellow at the University of Louisville Brandeis School of Law. In 2017, HRAP released a report assessing the Language Access Plans of agencies providing services to the immigrant, noncitizen, and refugee community in the Louisville area. Click here to read the August 2017 report.
