December 28, 2001 (by e-mail, baguilar@omb.eop.gov, and U.S. Mail)
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 the Implementation of Executive Order 13166. Federal Register, November 30, 2001.
Dear Ms. Aguilar:
Thank you for the opportunity to provide comments on the costs and benefits associated with implementation of Executive Order 13166. The following comment is submitted on behalf of the Asian & Pacific Islander American Health Forum (APIAHF) and the undersigned organizations. The APIAHF is a national organization dedicated to promoting policy, program and research efforts to improve the health status of all Asian Americans and Pacific Islanders.
First, we applaud the Administration’s support of Executive Order 13166 and the U.S. Department of Justice’s recent reaffirmation of the Executive Order (Ralph F. Boyd, Jr., Office of Assistant Attorney General, Civil Rights Division, October 26, 2001). The provision of language-appropriate services is critically important to improving access to and participation in federal programs for Asian Americans, Pacific Islanders and other limited English proficient and immigrant populations. According to the U.S. Census Bureau, Asian Americans and Pacific Islanders (AAPIs) are the fastest growing of all racial populations, increasing 75% between 1990 and 2000. In 1990, approximately 35% of AAPIs lived in linguistically "isolated" households – households in which no one aged 14 years or older speaks English "very well." The President’s Advisory Commission on Asian Americans and Pacific Islanders, after taking testimony from hundreds of AAPI serving organizations, identified the lack of linguistic access and cultural competence as "the two primary barriers to access and participation" in government programs. The Advisory Commission further found that, "Linguistic access and cultural competence have implications for the workplace, the schools, the courts, health care, social services, public safety, transportation and housing."
We appreciate the opportunity to provide the following comment in response to the OMB’s request and hope it will be helpful. If you have any questions or want additional information, please do not hesitate to telephone Jan Liu, Policy Analyst, at 415 954-9952, or Ernest Tai, Policy Director, at 415 954-9973.
Asian & Pacific Islander American Health Forum, San Francisco, CA
Asian Americans for Community Involvement, San Jose, CA
Asian & Pacific Islander Wellness Center, San Francisco, CA
Asian Health Services, Oakland, CA
California Pan –Ethnic Health Network, Oakland, CA
Chinese for Affirmative Action, San Francisco, CA
National Asian American Pacific Islander Mental Health Association, Denver, CO
NICOS Chinese Health Coalition, San Francisco, CA
Orange County Asian and Pacific Islander Community Alliance, Garden Grove, CA
PALS for Health, Los Angeles, CA
Comment to the OMB’s Request for Information, "Assessment of Costs and Benefits Associated with the Implementation of Executive Order 13166" – Submitted by the Asian & Pacific Islander American Health Forum
I. THE COST OF COMPLYING WITH THE CIVIL RIGHTS ACT SHOULD NOT BE INCLUDED IN THE OMB’s ASSESSMENT OF THE COSTS ASSOCIATED WITH IMPLEMENTATION OF THE EXECUTIVE ORDER
A. In Assessing the Cost of Implementing Executive Order 13166, the OMB Should Not Include the Cost of Compliance Incurred by Recipients of Federal Funds
We note that the OMB has requested information regarding "interactions of LEP individuals with both federal and federally funded entities." However, the costs incurred by recipients of federal funds in complying with Title VI of the Civil Rights Act of 1964 ought not be included in assessing the cost of implementing Executive Order 13166. The Executive Order places no new requirements on these recipients beyond those already set forth in the Civil Rights Act. We understand the OMB’s charge is to assess "the total costs and benefits of implementing Executive Order No. 13166." The cost of complying with the Civil Rights Act is not a cost of implementing the Executive Order.
B. Title VI of the Civil Rights Act Already Prohibits Discrimination
Since 1964, Title VI of the Civil Rights Act has required that "no 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." Title VI’s "national origin" provision has consistently been interpreted by the courts, and the agencies charged with Title VI’s enforcement, to require the provision of language-appropriate services in order to ensure equal access to federally-funded programs. The denial of a meaningful opportunity to participate in federally-funded programs based on language ability is a clear violation of the nondiscrimination provisions of Civil Rights Act.
C. Executive Order 13166 Creates No New Requirements
The U.S. Department of Justice, in its October 26, 2001 memorandum, unambiguously states that Executive Order 13166 "does not create new obligations, but rather clarifies existing Title VI responsibilities." Executive Order 13166 clarifies that federal agencies and programs will be held to the same standard of nondiscrimination required of federally-funded programs, i.e., equal access for persons, who, as a result of national origin, are limited in their English proficiency.
In addition to Title VI, regulations have been promulgated for a number of federally-funded programs. These regulations, examples of which follow, also predate Executive Order 13166.
The Hill Burton Hospital Survey and Construction Act of 1946 provided construction funding for hospitals, nursing homes, and community health centers (Hill Burton providers). The Act requires Hill Burton providers to serve all persons living in their service areas without discrimination. Federal enforcement agencies have consistently required that Hill Burton providers serve limited English proficient patients.
The Disadvantaged Minority Health Improvement Act of 1990 requires all federally-funded community health centers to provide primary health services in the language of the intended recipient.
The proposed Medicaid Managed Care regulations require states to develop a methodology for identifying limited English proficient individuals and provide written information in all prevalent non-English languages. They further require each managed care health plan to: make its written information available in the prevalent non-English languages in its respective service area; make oral interpretation available free of charge to each enrollee and potential enrollee; and notify enrollees and potential enrollees that oral interpretation is available for any language, that written information is available in the prevalent languages and how to access those services.
In addition, many states have enacted laws and regulations that require the provision of language-appropriate services. In California, for example, the Dymally-Alatorre Bilingual Services Act (California Government Code 7290) requires all state and local agencies to: employ sufficient numbers of bilingual personnel, translate materials explaining the services offered, and translate notices that may affect individual rights. The Kopp Act (California Health and Safety Code 1259) requires general acute care hospitals to make interpreter services available 24 hours a day, post multilingual notices of the availability of language services, and record the primary language spoken by each patient. The California Medicaid program (Medi-Cal) and State Children’s Health Insurance Program (Healthy Families) also require similar services of the managed care health plans with which the state contracts.
Cities and counties, such as San Francisco and Oakland, have also passed ordinances that attempt to ensure equal access to local government services for their limited English proficient residents.
To summarize, the Civil Rights Act of 1964 and the numerous federal regulations existed well prior to Executive Order 13166. The Executive Order placed no new requirements on the federally-conducted or -funded programs or their recipients. The cost of complying with the Civil Rights Act and regulations is not at issue here. The scope of the OMB’s assessment should be limited to the costs and benefits of implementing Executive Order 13166.
II. ASSESSMENT OF THE COSTS AND BENEFITS OF IMPLEMENTING EXECUTIVE ORDER 13166
Many factors must be considered in order to assess adequately the costs and benefits of providing appropriate language services. However, as a general statement and in support of Executive Order 13166, we believe that linguistic access must be ensured in order to eliminate barriers to access and participation in federal programs. In the health setting, linguistically-appropriate and culturally-competent communication is fundamental to the quality delivery of services.
Societal Costs
Denying access to public benefits based on the beneficiary’s national origin runs counter to our nation’s founding principle of equality. Limited English proficient Americans ought not be denied their right to access publicly-funded services because they lack language skills. The very idea that the government would even consider monetizing the cost of providing equal access to federally-funded programs appears to us to be problematic, to say the least. As a country, we should not be assessing the "costs" of providing equal access, questioning whether it is worthwhile not to discriminate. Instead, at the very minimum, we must examine the societal -- the human -- costs of not providing language-appropriate services to limited English proficient persons. The following are just a few documented examples in the health setting.
Hongkham Souvannarath, a 51-year old mother of seven who came to this country from Laos as a war refugee, was jailed for 10 months without a hearing, access to a lawyer, or knowledge of the charges filed against her, all for not taking her tuberculosis medication. She had fled persecution and survived refugee camps and exile in her native country only to be jailed in Fresno, California, for an innocent mistake. Mrs. Souvannarath had stopped taking her medication because of severe side effects and because, after talking to county health interpreters who did not speak Lao, she’d concluded that the medicine could kill her. According to Mrs. Souvannarath, "I thought if I got sick in America, they would put me in hospital but instead they put me in jail." ("Woman Jailed 10 months for Refusing TB Medicine," Los Angeles Times , May 31, 1999).
A 52-year-old, Korean-speaking woman had scheduled a gynecology appointment at Olive View Medical Center, a county hospital in Los Angeles. A community-based agency called ahead to request a Korean language interpreter for her. She arrived for her appointment, but the hospital had not arranged for an interpreter or a bilingual worker. Instead, hospital staff asked a 16-year-old boy sitting in the waiting room, a complete stranger, to be her interpreter during her gynecology appointment.
An 84-year-old Chinese immigrant who spoke the Toi Shan dialect, a common southern Chinese dialect, resided at a county-run psychiatric institution in San Francisco. For over a year she wanted to leave the facility but could not communicate her request to her caretakers because no one on staff spoke her dialect. It was only after she was connected to a Toi Shan speaking community-based social worker that she was able to leave for a community care facility with Toi Shan-speaking staff.
Unfortunately, data is not currently available to identify and measure the full range of costs that result from a lack of access to medical care caused by language barriers. Most health care systems do not collect data on their patients’ preferred and/or primary languages, let alone cost-effectiveness data on the provision of language services. Further, insofar as cost data are captured, the focus has been on the immediate, negative financial costs to the health care system. The longer-term benefits have not been considered. Consider the few examples below.
1. Clinical Benefits
According to a literature review article in the Journal of the American Medical Association (JAMA), the lack of language services results in an impaired exchange of information, loss of language cues that may aid in diagnosis, incomplete patient education, lack of informed consent, less access to services and thus a lower level of preventative care.
In a study of Canadian women who did not speak English, significantly lower levels of preventative care services, such as breast exams, mammography, and Pap tests, were provided. The differences were apparent even after the factors of socioeconomic status, contact with the health care system and culture were taken into account.
2. Medical Errors
The Institute of Medicine’s (IOM) shocking new report, "To Err is Human, Building a Safer Health System," estimated that as many of 98,000 people die each year of medical errors that occur in hospitals, a number higher than the number of deaths from motor vehicle accidents, breast cancer, or AIDS. While the report does not specifically address language barriers, studies and anecdotal evidence clearly show that understanding critical information and instructions for care can be compromised by a lack of language services.
Based on a study of exit interviews conducted with patients upon discharge from a hospital emergency department, Spanish-speaking patients were significantly less likely to understand their diagnosis, instructions for taking prescribed medications, other special instructions and follow-up care plans.
Misunderstanding medication instructions can have fatal consequences. The IOM has identified medication errors as an event that occurs frequently in hospitals. Ghandi, et al. conducted a study of 11 Boston area ambulatory clinics, concluding that patients who did not speak English as their primary language were more likely to report drug complications, failure to explain side effects and other medical problems. Another study of Spanish speakers in an urban hospital found that those with poor English skills were more likely to report that the potential side effects of their medication were not explained to them (47% vs. 16% for English speakers).
3. Patient Satisfaction
A number of studies have also shown that non-English speakers are much less satisfied with the care they receive. In a survey of 2,333 hospital emergency department patients, 52% of non-English speaking patients expressed satisfaction with their care, compared with 71% of English speakers. Among non-English speakers, 14% said they would not return to the same emergency department as compared with 9.5% of English speakers.
4. Service Utilization
One of the strongest arguments for the provision of language-appropriate services in the health care setting is that the use of interpreters can actually decrease inappropriate and unnecessary provision of medical services, thereby decreasing medical care costs. Using hospital emergency rooms for primary care is known to be an inefficient, wasteful use of resources. Decreasing unnecessary hospital emergency room use and increasing use of primary care and follow-up visits will not only lead to improved health outcomes for patients, but also reduce inefficient use of available resources.
In a study of 26,573 emergency department records at the Boston Medical Center, Bernstein, et al. found patients who had interpreters, compared to those who did not, were: 1) more likely to keep clinic follow-up appointments, 2) less likely to return to the emergency department repeatedly, and 3) had the lowest total 30-day post emergency department visit costs.
According to a study on language concordance between physicians and asthmatic patients, Manson found that patients who did not speak the same language as the physician were 3.24 times more likely not to take their medication, 3.06 times more likely to miss an appointment, and 2.07 times more likely to have at least one emergency room visit.
In addition, studies have shown that, after adjusting for other factors, patients with language barriers stayed in the emergency room an average of 20 minutes longer and were charged $38 more for tests. These studies suggest that the physician’s inability to take the medical history necessary to make a diagnosis may result in more tests being ordered. Further, the difficulty in communicating follow-up instructions before discharge from the hospital may result in additional expenditure of physician time.
5. Liability Exposure
Appropriate language services will likely reduce the risk of medical care providers being sued for medical malpractice. In addition to Title VI and the federal and state language access laws, patients have employed tort law principles when they have been injured as a result of their physician's failure to communicate. The physician's failure to communicate, e.g., to inform the patient of the material risks relating to possible treatments, is a common basis for medical malpractice claims. More specifically, the physician's failure to communicate with his limited English proficient patient has been found by the courts to constitute lack of "informed consent." Snyder v. Ash, 596 N.E.2d 518 (1991); Dandashi v. Fine, 397 So.2d 442 (1981). At the federal level, the 2nd Circuit Court of Appeals found that a U.S. Public Health Service physician breached his duty to instruct and monitor his patient, when he failed to communicate with his limited intelligence, limited English proficient immigrant patient. Krusilla v. U.S., 287 F.2d 34 (1961).
Asian Americans and Pacific Islanders, A People Looking Forward: Action for Access and Partnerships In the 21 st Century. Interim Report to the President and the Nation, January 2001. President’s Advisory Commission on Asian Americans and Pacific Islanders, p. 41.
Lau v. Nichols. 414 U.S. 563 (1974).
Chang PH, Fortier JP. Language Barriers to Health Care: An Overview. Journal of Health Care for the Poor and Underserved 1995, 1998; 9 (Supplement) S5-S20.
Woloshin, Steven, MD, et al., Language Barriers in Medicine in the United States," JAMA, Vol. 273, No. 9, March 1, 1995.
Woloshin, Steven, MD, et al., "Is Language a Barrier to the Use of Preventative Services?" JGIM, Vol. 12, pp 472-477, August 1997.
Corrigan, Janet M. To Err is Human: Building a Safer Health System. Washington, D.C.: National Academy Press; 2000.
Crane, J. A., M.D. (1997). "Patient comprehension of doctor-patient communication on discharge from the emergency department." Journal of Emergency Medicine15(1): 1-7.
Ghandi TK, Burstin HR, Cook EF, Puopolo AL, Haas JS, Brennan TA, Bates DW. Drug complications in outpatients. JGIM 2000; 15: 149-154.
David, R. A. and M. Rhee (1998). "The impact of language as a barrier to effective health care in an underserved urban Hispanic community." Mt Sinai Journal of Medicine65(5-6): 393-7.
Carrasquillo, O., MD, MPH., E. J. Orav, PhD., et al. (1999). "Impact of language barriers on patient satisfaction in an emergency department." Journal of General Internal Medicine1999(14): 82-87.
Bernstein, J., RNC., Ph.D., E. Bernstein, MD., et al. (2000). The use of trained medical interpreters affects emergency department services, reduces charges and improves follow-up. Boston, Massachusetts, Boston Medical Center.
Manson, Aaron, "Language Concordance as a Determinant of Patient Compliance and Emergency Room Use in Patients with Asthma," Medical Care, December 1988, Vol. 26, No. 12, pp 1119-1128.
Hampers, Louis C. et al, "Language Barriers and Resource Utilization in a Pediatric Emergency Department," Pediatrics, Vol. 103, No. 6, pp. 1253-1256, June 1999.
