That's an order, in any language

In talking about bilingualism and language policy in the United States, there are few better places to start than with Executive Order 13166, signed by President Clinton in August of 2000. The order specifically requires that:

Each Federal agency shall prepare a plan to improve access to its federally conducted programs and activities by eligible LEP persons. Each plan shall be consistent with the standards set forth in the LEP Guidance, and shall include the steps the agency will take to ensure that eligible LEP persons can meaningfully access the agency's programs and activities.

While the stated intent is "only to improve the internal management of the executive branch", and therefore is held not to "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", the standard interpretation of such orders is that any organization receiving federal money is subject to the same rules and regulations as any federal agency. Therefore, it became incumbent on recipients of Medicare dollars -- read: HMOs, hospitals, and insurance companies -- to provide translation services. Despite the suggestion that no new right to sue is created by the order, the official opnion of the Justice Department's Civil Rights Division is that failure to provide translation services constitutes discrimination by national origin, which is well established as a reason to sue.

We're going to look at how the medical community has responded to this for 2 reasons: 1) health care spending is one of the largest portions of government budgets at both the state and federal level (although as Sam Huntington notes in his new book, the state governments are federal; the proper distinction is state and national, but we'll continue with the common usage), and 2) since Mrs. SC is a medical student, SC reads the articles in her journals applying to this issue.

It didn't take long for the American Medical Association to respond to this order in several ways, summarized in this report. From their perspective, there are several problems with making translation services a mandatory part of receiving government funding -- perhaps unsurprisingly, they all turn out to be monetary. First, as the guidelines published by the Department of Health and Human Services note, "Coverage extends to a recipient's entire program or activity, i.e., to all parts of a recipient's operations. This is true even if only one part of the recipient receives the federal assistance", which the AMA interprets to mean: even if a single doctor in private practice sees just one Medicare-insured patient, that doctor is legally obliged to provide translation services for all of his other patients. Second, due to conflicts with other regulations protecting patient privacy, it is not permissible to use family members or otherwise willing friends and neighbors to act as translators. Finally, the administrative burden on physicians in private practice is substantially greater than on large companies; hence, the AMA recommendation that "the burden of this program should not be on physicians' offices".

Like any politically savvy organization, the AMA hedges its bets on how to handle a legislative issue. Thus, as the memo linked above notes, the organization simultaneously pursued a bill introduced by now-retired Congressman Stump from Arizona to nullify 13166, and a strategy of negotiating with the Bush adminstration to try to reduce the scope of the mandate and control the costs associated with it. The House of Representatives' official website has no record of a floor vote on Congressman Stump's bill, so we may assume it died in committee. As for the strategy of negotiation, the HHS guidelines linked above are from the end of 2003, and so with the benefit of hindsight, we can analyze the results of the AMA's lobbying.

The present-day guidelines distinguish between written ("translation") and oral ("interpretation") services, and distinguishes further between emergency and non-emergency situations. As can be seen in section VI, part B, the prohibition against family is somewhat relaxed, and another option besides hiring staff is prominently highlighted: using telephone interpreter lines. In fact, it is that last option which has become the standard for care. Even in areas with predominantly minority populations and corresponding office staff (Mrs. SC has done stints in offices serving primarily Vietnamese speakers, as well as primarily Spanish speakers), it often happens that there are more languages spoken locally than a particular doctor's office can accomodate. Thus, an office staffed by Vietnamese doctors and secretaries may still need to make use of the phone service in order to efficiently accomodate Hmong patients.

It was probably predictable that such an outcome would emerge from this political battle; such conflicts rarely end in decisive victory for one side. As an economic outcome, the worst has been avoided -- contra AMA mailings from 2000-1, there are no mass bankruptcies of doctors who can't afford translation services -- but a company which formerly struggled to survive (Language Line has been through at least three owners; the original founders, AT&T, and presently a venture capital firm) has now effectively become subsidized by government order. Aside from the economic results, the policy enshrines a state of affairs where a segment of the population is presumed permanently unable to communicate in the de facto standard language. It's this last issue that we're going to examine in more detail over the next week as we discuss Samuel Huntington's Who Are We?, and its implications for language policy in the United States.

(Edited at 8:13 p.m. on 6/16/04 as per comment.)

Comments

[Map]

'between written ("interpretation") and oral ("translation")' -- should be the other way around: "written ("translation") and oral ("interpretation")'.

[Dale Hansman]

As public relations manager for Language Line Services, I make it a habit to search for mentions of our company on the Web. Though your comments above are nearly a year old, they still ring with inaccuracies. You say: "a company which formerly struggled to survive (Language Line has been through at least three owners; the original founders, AT&T, and presently a venture capital firm)..." Language Line Services, for each of its first 20 years, experienced double-digit growth in revenues. Among the growing list of companies entering the telephone interpreting marketplace, Language Line Services continues to hold a commanding lead as the provider of language services that most organizations choose. Another inaccuracy: "(Language Line) has now effectively become subsidized by government order." Though a great many of our clients ARE from the government sector, the majority of them come from financial, insurance, healthcare, utilities and several other growing industries. The bottom line is that both immigration and government policies have created an environment that organizations of all sizes need to communicate with their limited English speaking customers, employees and business partners. Language Line Services has continued to meet the needs of these organizations with exceptional interpreters, state of the art technology, and competitive pricing. Thank you for providing the forum for me to counter your comments about our company.

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Thanks for the info,This is true even if only one part of the recipient receives the federal assistance", which the AMA interprets to mean: even if a single doctor in private practice sees just one Medicare-insured patient, that doctor is legally obliged to provide translation services for all of his other patients. Second, due to conflicts with other regulations protecting patient privacy, it is not permissible to use family members or otherwise willing friends and neighbors to act as translators.

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There's no order in languages, a language is an order itself, think about it. You need to read more about Linguistics, seriously.

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I wonder what happened to that "order" now that Obama's in Clinton's place?