Over 350 different languages are spoken in the USA. Although the majority of US citizens and residents speak only English, 64 million people report speaking another language at home. Around 29 million people, or around one in ten adults in the US, have Limited English Proficiency, meaning they “do not speak English as their primary language” and “have a limited ability to read, speak, write, or understand English.”
LEP persons are entitled to language assistance in the form of written translation or oral interpreting when using public services. Access to language services is guaranteed by law in Title VI of the Civil Rights Act (1964), which prohibits discrimination based on national origin, including language proficiency, and Executive Order 13166 (2000).
In spite of legal provisions, this seldom happens. LEP persons are often denied access to public services or have limited access, receive inaccurate or incomplete information, and have to rely on friends and family members, including children, whose English proficiency may only be marginally better than their own, sometimes to share sensitive personal information.
In a time of violent right-wing anti-immigration hysteria, with the increased threat of mass immigration raids and deportations, the effect is that LEP individuals and communities are further distanced from and less likely to access essential services. Marginalised communities are pushed further to the edges of society and rendered invisible.
Health Care Rights Law
The Obama administration passed the Patient Protection and Affordable Care Act (ACA) in 2010. This law introduced a raft of healthcare reforms, with one aim being to “Make affordable health insurance available to more people”. It includes a unique anti-discrimination provision in section 1557, the Health Care Rights Law, which prohibits discrimination, in federally-funded or administered healthcare programmes on bases that include national origin, and thus immigration status and English proficiency.
The law came into force in July 2016 and introduced major changes and standards for language access. For meaningful access to healthcare, providers are required to provide LEP patients and/or those accompanying them with a “qualified interpreter”, one who adheres to interpreter ethics, demonstrates proficiency in speaking both English and at least one other language, is “able to interpret effectively, accurately, and impartially” and uses specialist vocabulary. “Qualified” implies that the interpreter has undergone some form of medical interpreter training. The same applies to the use of translators for written materials.
The law prohibits the use of minor children, adult family members and friends as interpreters. Bilingual medical staff are not to be used as medical interpreters unless they are formally trained. It allows and sets standards for the use of video remote interpreting (VRI), including the use of qualified interpreters, as well as over the telephone. In addition, LEP healthcare users can now bring private discrimination cases under the law before the federal courts.
Providers, insurance companies and other entities involved are required to provide notices to all users and the general public about their rights and the services they are entitled to. These must include taglines in the top 15 languages spoken in the state. Model translations in multiple languages are available online.
Rights at Risk
President Trump and the Republican Party have threatened to repeal the ACA many times. On 24 May, the Office for Civil Rights (OCR) of the US Department of Health and Human Services (HHS) proposed reforms to the regulations issued under section 1557. Citing costs and litigation related to non-discrimination in relation to gender identity and abortion rights in particular, the changes would “retain protections for non-English speakers, including the right to meaningful language access to healthcare, qualification standards for translators and interpreters, and limitations on the use of minors and family members as translators in healthcare settings”. However, it would save around $3.6 billion over 5 years by removing regulatory paperwork, including $3.2 billion saved by removing “billions of “tagline” notices [sent] each year informing patients and customers of their ability to have “significant documents” translated in at least 15 languages”. Insurance companies have lobbied strongly for the tagline requirements to be removed, citing them as an unnecessary cost.
The OCR claims that most people who receive these taglines do not to require translation: “the money saved could be used to more effectively address individual needs of non-English speakers such as by providing increased access for translators and interpreters”.
The 204-page proposal provides that more money will be saved by removing the right to litigate in the federal courts and replacing VRI with audio/telephone interpreting. The physical nature of a medical examination makes a telephone interpreter a poor substitute for an in-person or quality video interpreter.
The proposal acknowledges that removing notices could result is less use of healthcare services by LEP persons who are unaware of their remaining rights, as well as less litigation due to unawareness of how to proceed. According to one advocacy organisation, “This proposal is the latest effort by the Trump Administration to undermine the civil rights of underserved and marginalized communities, including those who are LEP. If finalized, many people will not know their rights and will be more likely to experience discrimination and barriers to care.”
The first private lawsuit related to language discrimination was filed by a Texas man in 2018, claiming that he and his son, both Mandarin speakers, were not provided with an interpreter upon his discharge from an initial hospital visit or translated discharge instructions leading to further complications and readmission. The case is due to go to trial this year, but the proposed amendment may mean it will be stayed in case any changes are made that could affect it. Not providing an interpreter under the ACA can result in a fine of $70,000 for each patient encounter.
Rights in Practice
If no changes are being proposed to the provision of interpreters and translators, that may be because no practical changes have been made in this underserved field since 2016. Over 90% of providers are estimated not to be complying with the requirements on interpreter and translator provision. The onus on becoming “qualified” lies with interpreters and translators who must pay for training themselves, often in excess of $500. For some minority languages, there are no qualifications or certification available for linguists.
No research has been carried out into how wide scale the lack of language access really is, but it remains a major barrier to adequate healthcare. The upshot is that millions of people are simply not being provided with essential healthcare. Patient satisfaction and the outcomes they choose are also poorer when there is both cultural and linguistic misunderstanding. The language barrier also makes people more reluctant to access healthcare. According to one doctor, “the Trump administration’s tougher stance on immigration has created an atmosphere in which immigrants have become more hesitant to speak out”.
While the proposed changes seem to suggest that less awareness and less protection of rights will result in lower use of services and legal disputes and thereby save money, in the longer run providing interpreting and translation services, and adhering to the provisions of section 1557, actually save more money through fewer malpractice claims and readmission rates.
Healthcare is a booming industry. Why then are language services seen an unnecessary cost when professional, qualified linguists facilitate the process and keep other costs down? The idea that some people are not entitled to the same level of healthcare as others due to language proficiency is itself discriminatory. However, language discrimination as a barrier to accessing services is seldom taken into consideration. Removing the rights of vulnerable minorities may well be the first step on the road to repealing the ACA altogether, denying healthcare access to far more people.
At present, the move is only a proposal with comments having been accepted until 13 August; over 30,000 have been submitted on the various proposals made. The comments will then be considered over a two-month period with further possible changes and no likely resolution until later this year.
Silence in Immigration Court
While the ACA amendments are currently a proposal, major changes have taken place in the immigration courts over the past month, where the use of in-person interpreters is officially being phased out. Immigration judges were informed in June by the Executive Office for Immigration Review (EOIR), which runs the immigration courts, that as of mid-July in-person interpreters would be replaced by “pre-recorded, subtitled orientation videos or telephone calls for immigrants at their master hearings”. This is the first hearing before the court, where an undocumented immigrant may appear without a lawyer, and they are informed of their rights and their next hearing is scheduled. Failure to attend the next hearing can result in automatic deportation. Such hearings are usually carried out in rapid succession and a judge can “hear 60-100 cases in a single morning”.
The new system has been used in New York and Miami, and has so far been applied in hearings where no lawyer is present. Witnesses in court in New York said the video was roughly 20 minutes, it was “dubbed in Spanish with Spanish subtitles” and “After the video, immigrants received an 11-page FAQ handout in Spanish”. Both the video and the handout used technical legal language that would be difficult for people unfamiliar with courts to understand.
Languages in Court
In 2018, “almost 92 percent of all hearings required an interpreter”. Executive order 13166 requires an interpreter to be present at the hearing when an immigrant does not speak English. The courts “typically have staff translators for Spanish and Mandarin, the two most common foreign languages they deal with”, but over 700 freelance interpreters covering over 350 languages are hired on an as-needed basis via a contract with defence contractor SOS International (SOSi).
Qualified and competent interpreters are not available for all languages. In recent years, there has been a large influx of non-Spanish speaking migrants and asylum seekers from Central America, particularly from Guatemala and Honduras, who speak indigenous languages, such as the Mayan language K’iche’, which in 2018 was the twelfth most frequently used language spoken in immigration courts.
There are few qualified interpreters available for these languages, even in their home countries. In spite of this problem existing across the legal system and other public services for many years, there has been no attempt to address it through training or recruitment. Relay interpreting is sometimes used: “with the judge’s English first being translated into Spanish before being translated to the indigenous language”. The use of a Spanish-language orientation video is of no use for such immigrants, or for those speak Spanish but are illiterate. There are plans to produce the orientation videos in a further 20 languages.
The reasons given for this change are to increase efficiency and save money. With respect to efficiency, the longstanding backlog at the immigration court is almost up to one million cases. While this is blamed on migrants and asylum seekers, “an analysis of court data by The Marshall Project shows that under the Trump administration the immigration court backlog has grown far faster in one year than the inflow of migrants.”
Concerning potential savings, the president of the National Association of Immigration Judges, Ashley Tabaddor, said, “Interpreter cost is not a surprise cost — it’s an integral part of every case”. Ultimately where interpreters are concerned, the real issue is the lack of. In 2018, 1.2 million hearings were held with their presence required in over 90% of cases.
Need for Speed
Former Attorney General Jeff Sessions made major changes to the immigration courts through his “Strategic Caseload Reduction Plan”. Nearly 200 new immigration judges have been hired since 2017 to speed up deportations and deal with the backlog. Quotas have been placed on the number of cases judges must complete each year. A recent report by the Southern Poverty Law Center (SPLC) accuses Trump’s attorney generals of “seeking to actively weaponize the immigration court system against asylum seekers and immigrants of color”.
Although there has been no interpreter recruitment drive, technology is being used to deal with the difficulty of finding interpreters. Part of Sessions’ plan, there has been increasing use of video teleconference (VTC) court hearings, involving interpreters, via “immigration adjudication centers” from which judges conduct VTC hearings on different days to different courts. There are currently two such facilities.
VTC presents its own problems: “A 2017 study from the Executive Office of Immigration Review (EOIR) found that “issues with poor video and sound quality, can disrupt cases to the point that due process issues may arise.”” Nonetheless, in 2018, there were more than 125,000 VTC hearings in the immigration courts, an increase of 14.5% on the previous year, or 7% of the total. The use of VTC is contributing to higher deportation rates.
In June 2018, the Immigration and Customs Enforcement (ICE) New York Field Office announced that detainees would no longer be transported from immigration detention centres to court and that all hearings would be conducted via VTC. In response, in February, three legal organisations in New York filed a lawsuit against the use of VTC, claiming that “VTC-only hearings have had disastrous effects on detained immigrants, the ability of their attorneys to effectively represent them, and the efficiency of the immigration court”.
In December 2018, judges were instructed to use telephone interpreters for languages other than Spanish. However, “dial-in interpretation is often inadequate, because the translation services are hard to schedule and the quality of the telephone connections can be poor”.
Like the healthcare language access issue, Obama’s policies paved the way for the Trump administration’s current actions. Absent thus far from the current outrage over the use of orientation videos and the phasing out of in-person interpreters is the agency SOSi, responsible for the provision of interpreters to the courts under a 2015 contract worth up to $80 million. Refusing to comment on the current situation, the company has played no small role in the unravelling of the immigration courts.
Previously, the contract was held by Lionbridge Technologies, which currently holds a contract for telephone interpreting for the EOIR, along with Language Services Associates. Under the current SOSi contract, rates of pay for interpreters fell from $60 per hour to $35. Experienced interpreters organised and protested. After the company replaced them with cheaper, inexperienced interpreters, in 2017, the National Labor Relations Board (NLRB) found in favour of the interpreters. Many qualified immigration interpreters, however, still refuse to work under SOSi’s terms of work and pay. Judges and advocates have noted that the quality of interpreting fell under the current contract and it has contributed to the backlog. In 2016, the first full year of the contract, “2,457 hearings were adjourned due to interpreter no-shows”, up from 1105 the previous year.
The contract with SOSi was made on an annual basis with optional renewal each year after the first for a further four years up to August 2020. In spite of the problems, the contract has been renewed each year. This is not the first time that SOSi has put its own profits above the quality standards it committed to in contracts with the US government or used unqualified linguists. SOSi may well have made the lowest and perhaps most appealing bid but its performance has helped to nudge the court slowly into the situation it currently faces vis-à-vis interpreters.
No One Is Listening
Problems in the immigration court go back a long way and lie in their rationale and function within a system designed to dehumanise and deny fundamental rights. A recent American Bar Association report calls the courts “irredeemably dysfunctional.” With respect to interpreters, it recommends the EOIR “increase efforts to identify, certify, and expand access to qualified interpreters in immigration proceedings, particularly interpreters for uncommon languages and indigenous regional dialects, so that noncitizens’ due process rights are protected.”
Other recommendations concern reducing the use of video and telephone interpreting and echo similar suggestions made in a 2011 Brennan Center report on the courts, demonstrating how little has changed.
The stated rationale of saving money and increasing efficiency is simply an excuse. These measures send out a clear message of exclusion that needs no translation for those targeted. By marginalising and excluding people from the public realm linguistically, it helps to create and perpetuate a false media and public image of who they are, excludes them from discourse about them and fuels state racism.
While people are aware of bolder moves by the administration such as deportation raids and family separations, attacks on language rights are more subtle. Language discrimination is a soft form of discrimination. As Leon Rodriguez, a former director of the Office for Civil Rights states, “When you think about housing discrimination, it’s sort of clear: You don’t want to get caught renting to one family and not another. Language access is softer. It doesn’t have the same shock value.”