According to Time Magazine’s Sept. 13 cover story, “Who Left the Door Open?” – reporting who is coming into the country illegally and how they’re getting here – the debate will be getting a lot hotter in coming months. From the information Time’s investigation revealed, the Drudge Report estimates “that the number of illegal aliens flooding into the U.S. this year (2004) will total 3 million.” In Arizona alone, 4,000 illegal aliens are entering from Mexico in a single day, according to Time. With the Immigration and Naturalization Service estimating eight to 12 million illegal immigrants already residing in the U.S., the thought of a 25 to 37 percent increase in one year is sobering.
As the number of illegal immigrants continues to swell, and the demands by pro-immigrant activist organizations and elected officials for increased services to this group grow bolder, the question of what language should be spoken in providing those services is also getting hotter. The nonprofit group ProEnglish reports that over half the states already have English as their official language. Although polls continually show the American people strongly opposed to multilingual government, their government is already quite far down the road. Because it was deliberately done without fanfare, few Americans are aware that a federal edict issued during the waning months of the Clinton administration raised “immigrant rights” to a whole new level.
In August 2000, President Clinton issued an executive order mandating that all physicians, clinics, hospitals and other medical care providers who receive Medicare and Medicaid reimbursement for treating patients with limited English proficiency, or LEP, provide to those patients full interpreter and translator services in their own languages. Just to understand the scope of the mandate, consider that the United States Commission on Civil Rights reports there are as many as 500 different languages and dialects spoken by persons residing in the U.S.
In addition, the mandate forces these medical care professionals to ensure the competency of the medical translation and interpreter services they provide. And even though federal Medicare and Medicaid reimbursements rarely cover the actual costs of the medical services rendered, the full financial burden of providing the mandated language assistance services to LEP patients is placed solely on the medical care providers themselves; the federal government does not contribute anything to this huge financial and administrative cost.
Yet, under this edict, an LEP patient’s complaint to federal authorities that the medical professional failed to provide competent language services in his native tongue automatically triggers a federal investigation, following which the doctor or hospital can lose federal reimbursement and right to future participation in the Medicare and Medicaid programs. Worst yet, the LEP patient’s complaint can lead to a federal charge of intentional “national origin” discrimination under the Civil Rights Act of 1964, which pro-immigrant activist groups will seize upon to publicly accuse the doctor or hospital of racism.
Some may be wondering how this monumental change in law and public policy could have occurred – whereby a bureaucracy-bloated federal agency (U.S. Department of Health and Human Services) directly interferes with the age-old doctor-patient relationship by dictating how they must communicate. There was no act of Congress. The federal government didn’t even give the nation’s doctors, hospitals and other directly affected health-care providers and associations the opportunity to point out why this idea was an oppressive solution to a nonexistent problem. The edict took effect immediately upon issuance.
In July 1997, Clinton nominated civil-rights activist Bill Lann Lee as assistant attorney general for civil rights at the U.S. Department of Justice. Because Lee’s aggressive – many considered it extreme – civil-rights record turned off members of the Republican-controlled Senate, he was denied confirmation to the position. Other than a recess appointment, which would have lasted only a few months, there was no other legal means by which Lee could be seated as head of the civil rights division. Nonetheless, at the president’s insistence, Lee was sworn in and became the government’s chief civil rights lawyer.
A pro-immigrant activist and vigorous proponent of multilingual government, Lee immediately set out to insure that the nation’s LEP immigrant population – especially the 8 to 12 million people in the country illegally – would be spoken to in their native tongues by participants in federally funded programs. Because he had been rejected by the Republicans that controlled Congress, Lee needed a vehicle that was outside of Congress’ reach. He found just such a vehicle in the Civil Rights Act of 1964.
The Act prohibits “discrimination under any program or activity receiving Federal financial assistance” against any person in the United States “on the grounds of race, color, or national origin.” (Title VI.) By expanding the traditional meaning of the term “national origin” to include “language” – a different concept that Congress could have written into the Act in 1964 or at any time since, but did not – Lee had in short order created a new form of discrimination that could be enforced under the Act. Once “language” became synonymous with “national origin,” Lee knew that his goal of forcing participants in federally funded programs to become multilingual service provider would be accomplished. On Aug. 11, 2000, Clinton signed Executive Order 13166, codifying Lee’s expanded definition of “national origin.”
Dr. Jane Orient, M.D., executive director of the Association of American Physicians and Surgeons, recently expressed the profound concern this federal mandate presents for medical professionals:
Medicare was promised as a method to help senior citizens pay their bill. To get the bill passed, the government promised never, ever to interfere with the practice of medicine.
The language rule is yet one more attempt to dictate the way that physicians care for patients. If physicians accept payment through a federal program, the federal government claims the authority to tell them how they must communicate with patients who may not be proficient in English. The rules are so broad and vague that physicians will never be sure that they are in compliance. Thus, the government claims the right to judge, months or years later, whether communication was satisfactory.
Dr. Orient also decries that this edict “gives patients who claim lack of English proficiency grounds to sue the doctor any time there is a less than perfect outcome, complaining of failure to comply with the federal rule. This requires physicians to divert attention and resources from efforts that they think serve patients best in order to attempt to satisfy federal officials.”
Once, Americans were a people who warmly welcomed immigrants from all over the world, while gently encouraging and embracing the learning of English. Today, our government mandates that the thousands of non-English-speaking, indigent immigrants who pour into the country illegally be spoken to in their native language by the nation’s physicians and hospitals, while it prosecutes and castigates the physicians and hospitals whom it decides have not adequately complied with the government’s decree.
Today, it’s the medical professionals. Who will it be next?
M. David Stirling is vice president of the public-interest legal organization Pacific Legal Foundation. PLF’s recently filed lawsuit on behalf of several medical professionals challenges the legality of the government edict described in this article.
