This article commemorates Lau v. Nichols on its fortieth anniversary by examining language access rights in the new era of health care reform following the passage of the Affordable Care Act (ACA). Language assistance services are critical to accessing health care. Starting with Lau and ending with the ACA’s nondiscrimination provision, this article surveys the progression of these rights over time. A review of current national health care policy priorities for limited English proficient individuals completes the narrative of how language access rights have been an integral part of the Asian American, Native Hawaiian, and Pacific Islander experience.
Increased access to health care for limited English proficient (LEP) individuals, or those who speak English less than “very well,” has been an ongoing call to action for many civil rights advocates. Yet, the provision of culturally and linguistically appropriate services in publicly funded programs has not always been in line with our country’s notions of fairness and equality. The idea that LEP individuals should be protected from discriminatory treatment was recognized by the U.S. Supreme Court when it ruled that Title VI of the Civil Rights Act of 1964 required San Francisco public schools to provide bilingual education for their Chinese-speaking students. This year, 2014, marks the fortieth anniversary of that case, Lau v. Nichols.
Today, Asian Americans are the fastest-growing racial group in the United States, represented by dozens of languages and cultures.[i] Approximately 71 percent of Asian Americans and 29 percent of Native Hawaiians and Pacific Islanders (NHPIs) speak a language other than English at home.[ii] Approximately 32 percent of Asian Americans are LEP and approximately 21 percent of Asian American households are linguistically isolated, meaning that all members fourteen years or older are LEP.[iii] Since 1991, our nation’s LEP population has increased by 81 percent; Asian Americans and NHPIs constitute a significant part of this growing demographic.[iv] LEP Asian Americans and NHPIs require interpreter (oral) and translation (written) services to access and navigate the complex health care system. For these reasons, the passage and implementation of language access policies is a top priority for advocates.
This article explores the current state of language access rights in federally funded health programs and activities established under the Patient Protection and Affordable Care Act (ACA), and in particular, their impact on LEP Asian Americans and NHPIs. Part I sets the context for why language access rights in health care are important and traces the progress of these rights in health care: from the use of language as a proxy for national origin in Lau v. Nichols; to the push for federal rules implementing Title VI LEP programs and concurrent pullback of Title VI enforcement after Alexander v. Sandoval; and finally to the present day where the ACA’s nondiscrimination provision, Section 1557, holds enormous potential to revitalize the enforcement of these rights.
Part II reflects on national policy advocacy efforts to enforce language access rights for LEP Asian Americans and NHPIs, with a focus on the provision of translated applications for the federally facilitated Health Insurance Marketplace in the wake of the first Open Enrollment period. The focus on one document illustrates the complexity of opportunities and challenges facing advocates as they work to ensure equal access for LEP individuals to the Health Insurance Marketplaces and other signature ACA programs and activities.
The Expansion and Restriction of Language Access Rights Since Lau v. Nichols
The Importance of Language Access in Health Care
Two million Asian Americans and NHPIs are eligible for the ACA’s new health insurance programs, but without proactive outreach and multilingual enrollment efforts directed toward the LEP population, a much lower number will actually become insured.[v] LEP individuals require interpreter and translation services to access critical health programs and activities. Take for example, a Title VI complaint against Greenville Hospital System in South Carolina where anesthesiologists attempted to institute an internal policy to ban epidurals for LEP women in labor.[vi] Discrimination like this on the basis of limited English proficiency continues to be a driver of health care inequality. The poorer health outcomes of LEP patients are well documented as increased misdiagnoses, lower rates of drug adherence, lower utilization of primary care and preventive services, forgoing medical care altogether, and lower overall satisfaction with care.[vii]
Investments in language services are nominal relative to the government’s substantial yearly investment in public health insurance programs.[viii] Providing interpreter services costs only $0.50 more for every $100 spent on a health care visit.[ix] While the total costs to providers and other health care entities for providing interpreter services vary by consumer utilization, the total costs of providing written translation materials is a smaller, often one-time, fixed cost. Having adequate access to insurance and medical services has many benefits including effective service delivery and a healthier and more economically productive population.
In addition to readily quantifiable benefits, there is a moral imperative to providing language minorities meaningful access to health care. The absence of language assistance services often compromises a basic standard of living for individuals and families. For example, in Cleveland, Ohio, a group of Chinese residents had to charter a bus every weekend to drive more than 500 miles to New York City’s Chinatown to receive health care from culturally and linguistically competent staff who spoke their dialect.[x] In 2001, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) resolved a complaint against a psychiatric assessment center in Fresno, California, for not providing interpreters to Hmong and Spanish-speaking patients during the dispense of medication.[xi] These stories also show how limited English proficiency is closely tied with the immigrant experience. About 81 percent of the LEP population in the United States are foreign born, and about two-thirds are not U.S. citizens.[xii] One in six children who have immigrant parents have at least one parent who has difficulty speaking English.[xiii] Enforcing the rights of language minorities is important not just for the sake of carrying out the law itself but as a political ideal against anti-immigrant sentiment.
Enforcing Language Access Rights Through Lau and Executive Order 13166
Lau v. Nichols upheld the right of language minorities to have equal access to public programs and to defend this right in court by showing discrimination based on disparate impact.[xiv] Since Lau, language access rights have become a distinct area of legal and policy advocacy. One of the main challenges is that the scope of language access rights—when oral interpreter or written translation services must be provided as a matter of law—is often unclear.
In Lau, the Court held that the San Francisco school district’s failure to provide bilingual instruction to non-English-speaking Chinese students was discriminatory on the basis of national origin and thus a violation of Title VI.[xv] California’s state education laws required schools to help students become proficient in English.[xvi] The Court explained that bilingual instruction was necessary to achieve the state’s objectives and that “there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum, for students who do not understand English are effectively foreclosed from any meaningful education.”[xvii] The Court upheld the Department of Health, Education, and Welfare’s (HEW) Title VI regulations, which prohibited disparate impact discrimination. This kind of discrimination meant any activity that had the “the effect of subjecting individuals to discrimination” or had “the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.”[xviii] By validating HEW’s regulations, the Court recognized language as a proxy for national origin.[xix]
In subsequent decades, federal enforcement of Title VI and the Court’s ruling in Lau fell short of ensuring language assistance services for LEP individuals. As a result, in 2000, U.S. President Bill Clinton enacted Executive Order 13166 (“Executive Order”), clarifying the obligations of federal agencies and their recipients to provide “meaningful access” to programs and services.[xx] If Lau was in any way unclear about the nexus between national origin and limited English proficiency, the Executive Order expressly connected the two: “persons who, as a result of national origin, are limited in their English proficiency.”[xxi] The Executive Order also required federal agencies to provide guidance to programs and activities that received federal dollars.[xxii] Additionally, policy guidance from the U.S. Department of Justice (DOJ) that accompanied the Executive Order further laid out the federal government’s clear belief in the “link between national origin and language.”[xxiii]
Still, the force of the Executive Order was limited. It was not an actual law that created a right enforceable in court.[xxiv] It also did not define “meaningful access,” allowing agencies and federally funded entities broad discretion in interpreting this definition. While the Executive Order provided an opportunity for agencies to develop robust language access requirements, the result was a lax set of recommendations in the form of “guidance”—not requirements.
Sandoval’s Restriction of Language Access Enforcement Options
In 2001, while federal agencies were working to comply with the Executive Order, the U.S. Supreme Court issued an opinion in Alexander v. Sandoval, taking away the ability of individuals to challenge inadequate language assistance services using a disparate impact theory in court. In Sandoval, a Spanish-speaking individual challenged the state of Alabama’s English-only driver’s license examination as having the effect of discriminating against individuals who did not speak English.[xxv] The plaintiff argued that this policy, regardless of its intent, violated Title VI and its implementing regulations.[xxvi]
The Court did not consider the merits of the case but rather the question of whether individuals could even bring suit to enforce these particular regulations.[xxvii] Sandoval held that courts could only consider Title VI cases based on intentional discrimination, a more difficult standard to prove.[xxviii] Because courts could no longer enforce Title VI disparate impact regulations, agencies remained the only governmental entity to enforce them.[xxix] Advocates also turned away from courts and focused their attention on agencies to address language-based discrimination.
Advocates have used both legislative and administrative strategies to minimize the impact of Sandoval. Whereas legislation could, in effect, reverse Sandoval, administrative avenues would provide only more incremental changes. Since Sandoval, none of the legislative efforts in Congress to restore a private right of action for Title VI disparate impact claims have been successfully enacted.[xxx]
Federal Policy Guidance and Related Enforcement Activity to Serve Limited English Proficient Individuals
Following Sandoval, the DOJ reaffirmed the validity of the Executive Order and Title VI regulations prohibiting disparate impact discrimination.[xxxi] Despite its effort, whether or not guidance that resulted from the Executive Order had the force and effect of law remained unclear.[xxxii] HHS released its final policy guidance on Title VI compliance in 2003 (“HHS LEP Guidance”). This is the current policy that guides HHS’s LEP-related enforcement activity. In broad strokes, the guidance requires a recipient to take “reasonable steps to ensure meaningful access” and to determine reasonableness with a four-factor balancing test, applied case-by-case:
(1) The number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee; (2) the frequency with which LEP individuals come in contact with the program; (3) the nature and importance of the program, activity, or service provided by the program to people’s lives; and (4) the resources available to the grantee/recipient and costs.[xxxiii]
While providing oral interpreter services has generally been accepted as necessary to ensure meaningful access, providing written translation services has been met with more resistance. HHS LEP Guidance suggests that the only written materials that are required to be translated are vital documents, and only when such translations would not “incur substantial costs and require substantial resources.”[xxxiv] According to the guidance, vital documents include “outreach materials like brochures or other information on rights and services,” “consent and complaint forms,” “intake forms with the potential for important consequences,” and “applications to participate in a recipient’s program or activity or to receive recipient benefits or services.”[xxxv]
HHS LEP Guidance also lays out a set of circumstances providing a “safe harbor” for recipients in fulfilling their written translation obligations. A safe harbor occurs when “[t]he HHS recipient provides written translations of vital documents for each LEP language group that constitutes 5 percent or 1,000, whichever is less, of the population of persons eligible to be served or likely to be affected or encountered.”[xxxvi] This is “considered strong evidence of compliance with the recipient’s written translation obligations.”[xxxvii] However, not translating materials under these circumstances is not necessarily evidence of noncompliance. The safe harbor highlights HHS’s preference for voluntary compliance,[xxxviii] diluting the guidance’s authority as having the force and effect of law. Furthermore, throughout the guidance, there is a clear absence of the words “must” and “shall.” Rather, words such as “may,” “should,” and “could” are used, pointing to its advisory rather than mandatory nature.
Past complaints and case resolutions provide the best insight as to how HHS applies its own policy guidance. However, agency decisions are not binding precedent and there is tension between advocates and HHS on how these policies should be applied. A National Health Law Program analysis of OCR complaint resolutions between 1981 and 2002 shows that while OCR made many formal findings of compliance with Title VI, formal findings of noncompliance were rare. Rather, OCR generally reached voluntary settlement agreements when language assistance services were found to be lacking. The agreements resulted in new procedures to better serve LEP individuals, such as new systems for collecting LEP data and training staff to utilize interpreter services.[xxxix]
In recent years, advocates have requested that OCR decisions be made readily and comprehensively accessible to the public. The OCR Web site currently provides more than thirty resolution agreements and compliance reviews, seven of which involve LEP individuals.[xl] Additionally, OCR lists over twenty summaries of selected “success stories” of compliance reviews and complaint investigations specifically involving LEP individuals.[xli] The summaries primarily involve the implementation of interpreter services in hospital and state agency settings. Securing complete decisions would help advocates better understand how OCR actually determines whether an entity is in compliance with Title VI, including how it applies the four-factor balancing test.
Strengthening Language Access Rights in Health Care Through Section 1557 of the Affordable Care Act
Without a private right of action for individuals to challenge disparate impact discrimination in the courts and without LEP regulations that have the clear force and effect of law, language access rights have seen little enforcement action in the past decades. Under the Obama administration today, agency enforcement seems to be improving compared to previous administrations.[xlii] At the same time, the ACA presents a ripe political and regulatory opportunity to revive the civil rights mandate of Title VI. The ACA contains a specific nondiscrimination provision, Section 1557, extending Title VI and other civil rights laws to the ACA’s health programs and activities:
[A]n individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 . . . title IX of the Education Amendments of 1972 . . . the Age Discrimination Act of 1975 . . . or section 504 of the Rehabilitation Act . . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, 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 (or amendments).[xliii]
These programs and activities include all health plans participating in the new Health Insurance Marketplaces as well as related consumer outreach and education activities. Importantly, the enforcement mechanisms available under Title VI, Title IX, Section 504, and the Age Discrimination Act apply to all violations of Section 1557.[xliv] As an enforcement mechanism available under Title IX, a private right of action should also be available for all claims brought under Section 1557, whether related to Title IX, Title VI, or the other listed statutes.[xlv] This time, unlike Sandoval’s finding that Congress did not intend Title VI to cover disparate impact discrimination, advocates contend that Congress enacted Section 1557 with the intent to include a private right of action for all claims brought under this provision. Consistently, Section 1557 reads: “Nothing in this title . . . shall be construed to invalidate or limit the rights, remedies, procedures, or legal standards available to individuals aggrieved” under the listed civil rights statutes. Section 1557 is the legislative fix to Sandoval within the context of federally funded health programs and activities.
Section 1557’s implementing regulations need to clearly state the availability of a private right of action to prevent a future court ruling that would fail to interpret it as “an integrated remedial scheme” in which Congress intended to make available a private right of action.[xlvi] Part (c) authorizes HHS to issue implementing regulations but the agency has not done so yet. HHS has, however, recently indicated strong interest in addressing discrimination faced by LEP individuals and related enforcement mechanisms under Section 1557.[xlvii]
The opportunity to issue regulations clarifying recipients’ civil rights obligations under Section 1557 calls for HHS to review OCR’s enforcement authority and current LEP Guidance. One key question is whether Title VI policies have actually worked to ensure meaningful access to health programs and activities. The persistence of health inequities among LEP communities and documented stories of continuing access barriers to insurance and medical care suggests that policies and enforcement can be improved. One reason for OCR’s enforcement challenges could be its separation from HHS’s core programs and departments, such as Medicaid and the Health Insurance Marketplaces, which are housed at the Centers for Medicare and Medicaid Services (CMS). Many regulations promulgated for the ACA’s key programs so far have failed to mention Section 1557 despite generally referencing requirements for culturally and linguistically appropriate services. Creating regulations for Section 1557 would be an opportunity for an agency-wide overhaul to integrate nondiscrimination compliance measures and OCR’s enforcement oversight into all ACA programs and activities.[xlviii]
Section 1557 regulations are particularly important if government agency and insurance industry practices will change. Like Lau, Section 1557 holds enormous promise for ensuring equal access. But, as learned from the enforcement of Title VI for language access rights, great laws can be hampered by lack of specificity in policy and prioritization from their enforcing agencies.[xlix] While waiting for OCR to issue regulations implementing Section 1557, advocates have shared with HHS their top priorities as well as model regulations.[l]
There is reason to believe that OCR is improving as an enforcement authority alongside implementing Section 1557. In 2012, OCR proactively initiated a compliance review of critical access hospitals across ten states and published a list of effective practices for these hospitals.[li] Also in 2012, in what was seen as a progressive civil rights position, OCR interpreted sex discrimination under Section 1557 to include discrimination based on gender identity and sex stereotypes.[lii] In December 2013, OCR obtained corrective actions under its Section 1557 authority from two medical centers, finding that one had denied appropriate care to a male victim of domestic violence and another had treated male and female patients differently in its guarantor policies.[liii] These actions by OCR indicate that it is paying attention to Section 1557. Nine complaints based on sex discrimination that were recently filed by the National Women’s Law Center will further test OCR’s enforcement capabilities.[liv]
Given the current jurisprudence on Title VI language-based discrimination, advocates have focused on agency action to increase the availability and quality of language assistance services. In this section, we review recent endeavors in administrative advocacy and the leveraging of public-private partnerships to fulfill acute language needs while waiting for long-term policy changes.
Asian American and NHPI consumers looking to enroll in the ACA’s new programs and who need language assistance services have faced an uphill battle given that they can utilize only two of the four channels of enrollment: the federal call center and in-person assistance. Due to a lack of translated applications, these LEP communities can make use of neither the online application nor the mail-in paper application.
What follows is an overview of some policy priorities that have taken on a new urgency in the wake of the ACA. These priorities, if enacted, would revise standards in HHS LEP Guidance and HHS’s application of these standards.
Mandatory Translation Thresholds
Advocates are pushing back on the current voluntary safe harbor standard by recommending the adoption of a new policy. This policy would eliminate the safe harbor and instead set a mandatory percentage and numeric threshold as evidence of noncompliance. The threshold in current HHS LEP Guidance would also be changed to reflect today’s demographics of actual language need. The existing “5 percent or 1,000-person threshold, whichever is less” [lv] leaves out millions of LEP individuals. Advocates’ recommended 5 percent or 500-person threshold for the translation of vital documents is better policy.[lvi]
Far fewer LEP communities will have difficulty accessing health care if documents are translated for each language group that makes up 5 percent or 500 persons, whichever is less. For example, when using counties as proxies for service areas,[lvii] under the 5 percent or 1,000-person threshold, 1,111 counties in the United States would be required to translate vital documents for at least one non-English language. Under the proposed 5 percent or 500-person threshold, this requirement would extend to 1,386 counties.[lviii] The 5 percent or 500-person threshold draws from existing federal agency policy guidance and better ensures that the intent and statutory requirements to provide linguistically appropriate services are met.[lix] Even if the threshold remains part of a safe harbor rather than mandatory requirement, changing the threshold to 5 percent or 500 persons would make a significant difference when recipients of federal funding decide to provide language assistance services.
Various advocacy efforts are underway to revise the threshold, including efforts by the Congressional Asian Pacific American Caucus (CAPAC),[lx] National Council of Asian Pacific Americans (NCAPA), and the Leadership Conference on Civil and Human Rights.[lxi] The recommendation is also included in the 2014 version of the Health Equity and Accountability Act (HEAA), a comprehensive bill addressing racial and ethnic health disparities.[lxii]
Vital Documents and the Affordable Care Act’s Single, Streamlined Application
As outlined above, a federal recipient may fulfill its obligation of providing “meaningful access” under Title VI by translating vital documents. The federal interagency Web site LEP.gov says that a “document will be considered vital if it contains information that is critical for obtaining federal services and/or benefits, or is required by law.”[lxiii] HHS LEP Guidance is less certain in its definition of vital documents: “[w]hether a document . . . is ‘vital’ may depend upon the importance of the program, information, encounter, or service involved, and the consequence to the LEP person if the information is not provided accurately or in a timely manner.”[lxiv]
Combined, the above criteria of critical, important, and consequential supports the classification of the single, streamlined application (SSA) used in the new Health Insurance Marketplace as a vital document. Moreover, requiring the translation of an application by a government agency is not a new interpretation of HHS LEP Guidance. In fact, this interpretation is entirely consistent with OCR’s past decisions. Its 2008 resolution with the Hawaii Department of Human Services (HDHS) affirmatively stated that vital documents “shall include . . . applications” and required HDHS to “translate existing documents into any language spoken by five percent (5%) of the total population eligible to be served or likely to be directly affected or encountered by HDHS’ program, or one thousand (1,000) persons in that population, whichever is less” in order to comply with Title VI.[lxv]
In February 2013, a group of language advocates based in Washington, DC, pushed for the SSA to be translated into fifteen of the most commonly spoken languages. In their letter to CMS, advocates explained that the SSA “provides the initial entry point to apply for health insurance and is a vital component of the ACA’s ‘no wrong door’ approach to enrollment.”[lxvi] Despite continued advocacy on the federal administrative level, neither the online nor paper SSA has been translated into any language other than Spanish, continuing to foreclose two of the four available enrollment channels for LEP Asian Americans and NHPIs. Instead, in response to the February 2013 letter, CMS indicated its plan to translate the content of the application into twenty-seven languages. These “job aids” are not actual applications but function as mock applications; they cannot be completed by LEP consumers or processed by the agency.[lxvii] Although CMS responded to advocates’ concerns, its solution fell short of what is legally required under Title VI and what is needed in LEP communities.
In addition to the efforts of DC-based advocates, community-based coalitions are also bringing increased attention to the lack of translated ACA-related documents and the need for better language assistance services.[lxviii] AIM for Equity recently submitted a letter to Dr. Howard Koh, Assistant Secretary for Health at HHS, outlining the absence of translated materials, lack of quality control in current ACA-related translations, and the need for a uniform glossary of ACA-related terms to assist in standardizing translations.[lxix] As of the date of this publication, the Assistant Secretary’s office has not responded.
A few months prior to the first Open Enrollment period that was set to begin in October 2013, health equity and civil rights groups serving Asian American and NHPI communities faced a stark reality that they would be left out of federally funded and mainstream national outreach, education, and enrollment campaigns. These four organizations, consisting of the Asian & Pacific Islander American Health Forum, the Association of Asian Pacific Community Health Organizations, Asian Americans Advancing Justice | Los Angeles, and Asian Americans Advancing Justice | AAJC, combined their resources and networks of community-based organizations into one national collaborative to engage Asian Americans and NHPIs in the ACA’s new programs and policies. The collaborative, known as Action for Health Justice, now convenes over seventy Asian American and NHPI organizations in twenty-one states to provide culturally and linguistically competent ACA outreach, education, and enrollment services. With a goal of reaching 250,000 Asian Americans and NHPIs and enrolling 35,000 in the first Open Enrollment period, Action for Health Justice is also exploring the development of a uniform glossary of translated terms. This glossary would help avoid future translations of ACA-related materials plagued by inconsistencies and inaccuracies, like those recently developed by CMS. Action for Health Justice is also working to create a clearinghouse that will provide standardized translated resources in at least seven Asian and two Pacific Islander languages.
With Action for Health Justice established just in time for the start of Open Enrollment, the White House Initiative on Asian Americans and Pacific Islanders (WHIAAPF)[lxx] met with executive directors of the anchor organizations of Action for Health Justice, private funders, and HHS Secretary Kathleen Sebelius to explore the creation of a public-private partnership. Action for Health Justice demonstrated that successful ACA enrollment is possible if government and private entities work together to create a strategy responsive to the unique needs of local communities.
As initiatives like Action for Health Justice unfold, there may be some mixed messaging to policy makers who observe that advocates are undertaking voluntary translation efforts (albeit with urgency) while attempting to hold the government accountable to its Title VI translation obligations. Remembering Lau within this context of difficult political realities reminds us that policies and legal mandates do not always align. The challenge for advocates is to navigate both in order to produce optimal outcomes for their communities.
Advocacy efforts for culturally and linguistically appropriate health care for Asian Americans and NHPIs are rooted in a historic Supreme Court case. By remembering Lau v. Nichols, we remember that language assistance services have been an integral part of the Asian American and NHPI experience. Today, the provision of meaningful access for LEP consumers to the Health Insurance Marketplaces and other health reform programs is no less important than the provision of meaningful access for LEP students to public education. While debate may be out of the courtroom for now, there are several channels for positive policy change that would improve the lives of LEP individuals, including administrative advocacy and public-private partnerships.
Helen Tran is a staff attorney and National Asian Pacific American Bar Association Law Foundation Partners and In-House Counsel Community Law Fellow for health law and policy at Asian Americans Advancing Justice | AAJC. She focuses on using the Affordable Care Act’s nondiscrimination provision, Section 1557, and Title VI to address language access issues in health care.
During law school, Tran cofounded the Faculty Diversity Initiative, which successfully advocated for the hire of tenure-track Asian American law professors. She previously served on the boards of the University of Southern California Public Interest Law Foundation, Asian Pacific American Law Students Association, and Asian Pacific American Bar Association of Los Angeles County, and she was a production editor for the Southern California Review of Law and Social Justice. She externed for the Honorable S. James Otero of the Central District of California, clerked for the Impact Litigation Unit at Bet Tzedek Legal Services, and interned with the Office of General Counsel at Children’s Hospital Los Angeles.
Tran received her JD from the University of Southern California Gould School of Law and her master of health administration and bachelor of science in public policy from the University of Southern California Price School of Public Policy. She is admitted to practice in the state of California.
Déodonné Bhattarai is the Reproductive Justice Legal Fellow at the Asian & Pacific Islander American Health Forum (APIAHF), a national health policy organization dedicated to strengthening policies, programs, and research to improve the health and well-being of Asian Americans, Native Hawaiians, and Pacific Islanders. As a member of APIAHF’s policy team, Bhattarai works on health equity issues at the federal level. She analyzes issues of health care access and quality, HIV/AIDS, language access rights, maternal health, immigration, and ACA implementation—all through a reproductive justice lens.
Bhattarai was a Human Rights Law Fellow at the National Center on Homelessness and Poverty in Washington, DC, and at the Human Rights Law Network Reproductive Rights Unit in New Delhi, India. In India, she conducted on-site factual investigations and drafted public interest litigation petitions on behalf of tribal populations and prisoners suffering from egregious health disparities. During graduate school, Bhattarai worked at Prisoners’ Legal Services in Boston and in the Criminal Bureau of the New Hampshire Attorney General’s Office. Prior to graduate school, she spent years as a clinical assistant, providing health care to and advocating on behalf of low-income women and families.
[i] “Between 2000 and 2010, the Asian American population grew faster than another other racial group, at a rate of 46%.” Ramakrishnan, Karthick, and Taeku Lee. Public Opinion of a Growing Electorate: Asian Americans and Pacific Islanders in 2012. National Asian American Survey, 2012, 3.
[ii] Asian Pacific American Legal Center and Asian American Justice Center. A Community of Contrasts: Asian Americans in the United States: 2011. Asian Pacific American Legal Center and Asian American Justice Center, 2011, 25.
[iii] Ibid., 27, 29.
[iv] Whatley, Monica, and Jeanne Batalova. “Limited English Proficient Population of the United States.” Migration Policy Institute, 25 July 2013.
[v] Chu, Rose, Daniel Wong, Wilma Robinson, and Kenneth Finegold. The Affordable Care Act and Asian Americans and Pacific Islanders. Department of Health and Human Services ASPE Research Brief, 1 May 2012, 2. In California, without culturally and linguistically appropriate outreach and education, an estimated 300,000 eligible Californians, 70 percent of whom are from communities of color, will not enroll in Medi-Cal, the state’s Medicaid program. See California Pan-Ethnic Health Network (CPEHN). Medi-Cal Expansion: What’s at Stake for Communities of Color. CPEHN, January 2013, 1. Language barriers could reduce the number of LEP subsidy–eligible individuals by 119,000 in California’s health insurance marketplace. See CPEHN, UC Berkeley Labor Center, and UCLA Center for Health Policy Research. Achieving Equity by Building a Bridge from Eligible to Enrolled. CPEHN, UC Berkeley Labor Center, and UCLA Center for Health Policy Research, January 2013.
[vi] Perkins, Jane, Mara Youdelman, and Doreena Wong. National Health Law Program, Ensuring Linguistic Access in Health Care Settings; Legal Rights and Responsibilities, 2003, Appendix C.12.
[vii] Teitelbaum, Joel, Lara Cartwright-Smith, and Sara Rosenbaum. “Translating Rights into Access: Language Access and the Affordable Care Act.” American Journal of Law and Medicine 38(2-3): 350-351, 2012.
[viii] In 2012, the federal government spent $732 billion on the three major government health insurance programs of Medicare, Medicaid, and the Children’s Health Insurance Program. See Center of Budget and Policy Priorities. Policy Basics: Where Do Our Federal Tax Dollars Go? Center of Budget and Policy Priorities, 12 April 2013.
[ix] Office of Management and Budget (OMB). Report to Congress, Assessment of the Total Benefits and Costs of Implementing Executive Order No. 13166: Improving Access to Services for Persons with Limited English Proficiency. OMB, 14 March 2002, 43-52, 55.
[x] Asian Services in Action, Inc. “June and the Lins: A Long Journey.” Asian Services in Action, Inc., 17 December 2012.
[xi] Perkins, Youdelman, and Wong, Ensuring Linguistic Access in Health Care Settings, Appendix C.31.
[xii] Whatley and Batalova, Limited English Proficient Population.
[xiii] Capps, Randy et al. The Health and Well-Being of Young Children of Immigrants. Urban Institute, 2004, 18.
[xiv] The significance and reach of Lau on language rights have been subject to different interpretations. Some limit the case’s significance to the bilingual education context, while others recognize its broader impact on public programs generally. “The enduring legacy of Lau is that school districts may no longer ignore the plight of non-English-speaking students; school districts must have programs in place to address their special needs.” National Asian Pacific American Legal Consortium. Lau v. Nichols (1974) & Asian Americans 30th Anniversary. National Asian Pacific American Legal Consortium, 13 September 2004. More broadly, “Lau was an important case because it established that racial and ethnic minorities could go to court to enforce the disparate impact regulations of Title VI. . . . The Lau Court [also] recognized that government programs had an affirmative duty to provide language assistance services in order to make the term ‘equal access’ meaningful.” Villazor, Rose Cuison. “Language Rights and Loss of Judicial Remedy: The Impact of Alexander v. Sandoval on Language Minorities.” In Awakening from the Dream: Civil Rights Under Siege and the New Struggle for Equal Justice. Denise C. Morgan, Rachel D. Godsil, and Joy Moses, eds. Carolina Academic Press, 2005, 139-140.
[xv] Lau v. Nichols, 414 U.S. 563, at 568 (1974).
[xvi] Ibid., 565.
[xvii] Ibid., 566.
[xviii] Ibid., 568.
[xix] Teitelbaum, Cartwright-Smith, and Rosenbaum, “Translating Rights into Access,” 355.
[xx] Executive Order 13166. Improving Access to Services for Persons with Limited English Proficiency. U.S. Department of Justice, 11 August 2000; “Enforcement of Title VI of the Civil Rights Act of 1964—National Origin Discrimination Against Persons with Limited English Proficiency; Policy Guidance Document.” Federal Register 65(159), 16 August 2000; National Asian Pacific American Legal Consortium. Fact Sheet: Limited English Proficiency and Executive Order 13166. National Asian Pacific American Legal Consortium, 13 March 2002.
[xxi] Executive Order 13166.
[xxii] Ibid., Sec. 3. Federally Assisted Programs and Activities.
[xxiii] “Enforcement of Title VI; Policy Guidance Document,” Federal Register. “While there is not always a direct relationship between an individual’s language and national origin, often language does serve as an identifier of national origin. The same sort of prejudice and xenophobia that may be at the root of discrimination against persons from other nations may be triggered when a person speaks a language other than English.” Ibid.
[xxiv] “This order is intended only to improve the internal management of the executive branch and does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers or employees, or any person.” Executive Order 13166.
[xxv] Alexander v. Sandoval, 532 U.S. 275, 278-279 (2001).
[xxvi] Ibid., 279.
[xxviii] Ibid., 285. See also, The Leadership Conference. “Sandoval Decision Threatens Disparate Impact Regulations.” Civil Rights Monitor 12(1), 2002. “Limiting civil rights protections to instances where individuals can prove animus or subjective discriminatory motive will leave intact many practices that are in fact discriminatory but cannot be shown to be so because 1) the search for an affirmative intent to harm is really inapplicable to the practice at issue, or 2) proving subjective intent is extremely difficult.” Ibid.
[xxix] Additionally, the Court’s observation that it was “strange” for agencies have enacted disparate impact regulations to implement Title VI had severe consequences on how the rights of LEP individuals would thereafter be enforced. Sandoval, 532 U.S. at n.6. The Court’s majority questioned “the continued viability of Title VI regulations” and “whether Title VI extends to discrimination on the basis of the language.” Health Consumer Alliance. Language Access Responsibilities Under Federal Civil Rights Laws. Health Consumer Alliance, November 2004.
[xxx] Fairness and Individual Rights Necessary to Ensure a Stronger Society: Civil Rights Act of 2004 (FAIRNESS Act), S. 2088, 108th Cong; Fairness and Individual Rights Necessary to Ensure a Stronger Society: Civil Rights Act of 2004 (FAIRNESS Act), H.R. 3809, 108th Cong; Environmental Justice Enforcement Act of 2006, S. 4009, 109th Cong; Civil Rights Act of 2008, S. 2554, 110th Cong.; Civil Rights Act of 2008, H.R. 5129, 110th Cong.; Environmental Justice Enforcement Act of 2008, S. 2918, 110th Cong.; Environmental Justice Enforcement Act of 2008, H.R. 5896, 110th Cong.; Transportation Opportunity and Accountability Act of 2011, H.R. 2019, 112th Cong.; Violence Against Immigrant Women Act of 2012, H.R. 5331, 112th Cong.; Servicemembers’ Protection Act of 2012, S. 3322, 112th Cong.; Violence Against Immigrant Women Act of 2013, H.R. 629, 113th Cong.
[xxxi] Boyd, Ralph F. Jr. “Executive Order 13166 (Improving Access to Services for Persons with Limited English Proficiency).” Memorandum for Heads of Departments and Agencies, General Counsels and Civil Rights Directors. Office of the Assistant Attorney General, U.S. Department of Justice, 26 October 2001, 2.
[xxxii] Ibid., 2.
[xxxiii] “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons; Policy Guidance Document.” Federal Register 68(153): 47314, 47322, 8 August 2003.
[xxxiv] Ibid., 47319.
[xxxv] For other written materials that could be considered vital documents, see “Guidance Regarding Title VI,” Federal Register 68(153): 47319.
[xxxvi] Ibid., 47318-47319.
[xxxviii] “The goal for Title VI and Title VI regulatory enforcement is to achieve voluntary compliance.” Ibid., 47321.
[xxxix] Perkins, Youdelman, and Wong, Ensuring Linguistic Access in Health Care Settings, Appendix C.5-C.37.
[xl] Office for Civil Rights (OCR). Recent Civil Rights Resolution Agreements & Compliance Reviews. U.S. Department of Health and Human Services (HHS).
[xli] OCR. Enforcement Success Stories Involving Persons with Limited English Proficiency: Summary of Selected OCR Compliance Reviews and Complaint Investigations. HHS. In 2006, only eleven decisions were listed on OCR’s Web site. OCR. Summary of Selected OCR LEP Complaint Investigations and Compliance Reviews. HHS, 19 September 2006.
[xlii] “[T]he dreadful financial and operational conditions within OCR [as reported by the U.S. Civil Rights Commission in 1991] are a fixture on the landscape of government enforcement and not a recent development.” Rosenbaum, Sara, and Joel Teitelbaum. “Civil Rights Enforcement in the Modern Healthcare System: Reinvigorating the Role of the Federal Government in the Aftermath of Alexander v. Sandoval.” Yale Journal of Health Policy, Law, and Ethics 3(2): 18, 25 February 2013. “[T]he response from HHS—the key enforcement agency for federally assisted health and human services programs—was virtual silence [after Sandoval].” Ibid., 3.
[xliii] Patient Protection and Affordable Care Act, U.S. Code 42 (2010), § 18116(a). Section 1557 comes from the Congressional bill of the law, Patient Protection and Affordable Care Act, H.R. 3590, 111th Cong.
[xliv] Affordable Care Act, § 18116(a) (“Section 1557(a)”).
[xlv] For further analysis of this issue, see AA & NHPI Collaborative’s response to HHS’s Request for Information for Section 1557. APIAHF, 1 August 2013, 40. See also National Women’s Law Center. Nondiscrimination Protection in the Affordable Care Act: Section 1557. National Women’s Law Center, 3 June 2013.
[xlvi] See Alexander v. Sandoval, 532 U.S. 275, 304 (2001) (Stevens, J. dissenting) (finding that “Section 601 does not stand in isolation, but rather as part of an integrated remedial scheme. Section 602 exists for the sole purpose of forwarding the antidiscrimination ideals laid out in § 601.”). For discussion of how Section 1557 expands the jurisdiction of Title VI to the ACA’s new health programs and activities, see Youdelman, Mara. “The ACA and Application of § 1557 and Title VI to the Civil Rights Act of 1964 to the Health Insurance Exchanges.” National Health Law Program, 1 January 2011.
[xlvii] “Request for Information Regarding Nondiscrimination in Certain Health Programs or Activities; Request for Information.” Federal Register 78(148): 46559-46560, 1 August 2013.
[xlviii] The integration—or lack thereof—of OCR into major HHS programs that predated the ACA provides insight as to how civil rights enforcement can improve within the agency. Title VI compliance as a condition of federal funding was clearly absent from Medicare regulations governing the subcontracts maintained by hospitals, managed care organizations, and other covered health providers. Rosenbaum and Teitelbaum, “Civil Rights Enforcement in the Modern Healthcare System,” 20-21. CMS’s apparent lack of interest in civil rights compliance was also apparent in its Medicaid regulations: “Despite the fact that inadequate beneficiary access to health providers is epidemic and the subject of widespread discussion, CMS has never issued a written clarification stating the obligation to ensure equal access stems not only from federal Medicaid law but also from the equality in treatment dimensions of civil rights law (i.e., Title VI) itself.” Ibid., 23.
[xlix] Keith, Katie, Kevin Lucia, and Christine Monahan. Nondiscrimination Under The Affordable Care Act. The Center on Health Insurance Reforms, Georgetown University Health Policy Institute, 2013,16.
[l] Public comments from Wade Henderson, President and CEO, Nancy Zirkin, Executive Vice President, and Judith L. Lichtman, Chair, The Leadership Conference, to HHS. Request for Information Regarding Nondiscrimination in Certain Programs or Activities, 30 September 2013; Memorandum from Representatives of the Leadership Conference on Civil and Human Rights to Georgina Verdugo, Director, Office for Civil Rights, and Jennifer Cannistra, Policy Analyst and Director of Special Projects, Office of Health Reform. Proposed Regulatory Language [for Section 1557], 13 May 2011 (on file with authors).
[li] OCR. Compliance Review Initiative: Advancing Effective Communication in Critical Access Hospitals. HHS, April 2013.
[lii] Bau, Ignatius. HHS Office of Civil Rights: Gender Identity Discrimination Prohibited Under ACA Section 1557. Ignatius Bau, 9 August 2012.
[liii] OCR. Corrective Actions Taken in Sex Discrimination Cases Enforcement of “Section 1557” of the ACA. HHS Bulletin, 6 December 2013.
[liv] National Women’s Law Center. NWLC Section 1557 Complaint: Sex Discrimination Complaints Against Five Institutions. National Women’s Law Center, 3 June 2013; National Women’s Law Center. NWLC Section 1557 Complaints: Sex Discrimination Complaints Against Four Long-term Care Companies. National Women’s Law Center,16 January 2014.
[lv] “Guidance Regarding Title VI,” Federal Register, 47319.
[lvi] Including a numeric threshold in addition to a percentage ensures that more LEP individuals are accounted for despite being located in service areas with larger populations.
[lvii] “Service area” refers to the “population of persons eligible to be served or likely to be affected or encountered.”
[lviii] Based on the Migration Policy Institute tabulations of the U.S. Census Bureau’s pooled 2008-2012 American Community Survey, only 983 counties in the United States (including those in Puerto Rico) are subject to the current 1,000 or more person safe harbor threshold. When applying the 500-person threshold to service areas measured by counties, 1,317 counties in the United States are covered. Altogether, 3,216 counties had information on the languages spoken at home by respondents’ English language ability. Batalova, Jeanne. Migration Policy Institute, 27 January 2014. (Tables of counties on file with authors.)
[lix] Style and Format of Summary Plan Description, 29 C.F.R. § 250.102-2(c)(2) (2010) (“A plan which covers 100 or more participants at the beginning of the plan year, and in which the lesser of (i) 500 or more participants, or (ii) 10% or more of all plan participants are literate only in the same non-English language . . . .”). In 2011, HHS incorporated the 5 percent threshold—a change from 10 percent—to trigger the translation of vital documents. “Changes to the Medicare Advantage and the Medicare Prescription Drug Benefit Programs for Contract Year 2012 and Other Changes.” Federal Register 76(73): 21432, 21559-21560, 15 April 2011. “After reviewing the results from these sensitivity analyses, we determined that a 5 percent threshold that focuses on primary language spoken would be the most appropriate approach for beneficiaries and plans.” Ibid., 21560.
[lx] CAPAC to HHS Secretary Kathleen Sebelius, 10 May 2012 (letter on file with authors), wherein members of CAPAC responded to a final rule adopting a 10 percent per county threshold for both translation and interpretation services by outlining the problems with the threshold and proposing it be replaced with the 5 percent, 500 standard.
[lxi] NCAPA is a coalition of thirty-one national Asian American and NHPI organizations.
[lxii] HEAA (proposed), § 202 enacting §3402(b)(6) of the Public Health Services Act. For an overview of the proposed HEAA legislation, see National Latina Institute for Reproductive Health. The Health Equity and Accountability Act: A Strategic, Comprehensive Approach to Eliminate Racial and Ethnic Health Disparities. National Latina Institute for Reproductive Health.
[lxiii] LEP.gov. Commonly Asked Questions and Answers Regarding Limited English Proficient (LEP) Individuals. LEP.gov, April 2011, 3.
[lxiv] “Guidance Regarding Title VI,” Federal Register, 47318.
[lxv] For full terms of settlement, see Hawaii Department of Human Services Resolution Agreement. HHS.
[lxvi] Priscilla Huang et al. to Julie Battaile et. al., 14 February 2013; on file with authors. The group is made up of representatives from various organizations including AAPCHO, APIAHF, Community Catalyst, Center on Budget and Policy Priorities, Enroll America, Families USA, Georgetown Center on Children and Families, and the National Health Law Program.
[lxvii] Julie Battaile to Priscilla Huang and Mara Youdelman, 22 April 2013; on file with APIAHF. “Materials in Other Languages: Marketplace Consumer Application (family),” CMS.gov. Letter on file with authors.
[lxviii] Rao, Ankita. “Health Law Enrollment Efforts for Asian Americans Face Challenges of Language Diversity, Cultural Differences.” Kaiser Health News, 24 November 2013; Joffe-Block, Jude. “Language Barriers Cause Challenge For Health Care Outreach.” Fronteras, 3 October 2013.
[lxix] AIM for Equity Steering Committee to Dr. Howard K. Koh, 14 November 2013. Letter on file with authors.
[lxx] The White House Initiative on Asian Americans and Pacific Islanders “focuses on crosscutting priority areas . . . for Asian Americans, Native Hawaiians and Pacific Islanders, and ensuring access, especially linguistic access and cultural competence, for Asian Americans and Pacific Islanders . . . ” About the White House Initiative on Asian Americans and Pacific Islanders. The White House Web site. See also the 2009 Executive Order, Increasing Participation of Asian Americans and Pacific Islanders in Federal Programs. The White House, 14 October 2009.