Academic journal article Asian American Policy Review

From Lau V. Nichols to the Affordable Care Act: Forty Years of Ensuring Meaningful Access in Health Care for Limited English Proficient Asian Americans, Native Hawaiians, and Pacific Islanders

Academic journal article Asian American Policy Review

From Lau V. Nichols to the Affordable Care Act: Forty Years of Ensuring Meaningful Access in Health Care for Limited English Proficient Asian Americans, Native Hawaiians, and Pacific Islanders

Article excerpt

Abstract

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.

Introduction

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. (1) Approximately 71 percent of Asian Americans and 29 percent of Native Hawaiians and Pacific Islanders (NHPIs) speak a language other than English at home. (2) 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. (3) Since 1991, our nation's LEP population has increased by 81 percent; Asian Americans and NHPIs constitute a significant part of this growing demographic. (4) 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. …

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