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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto

December 29, 2001

Brenda Aguilar
Office of Information and Regulatory Affairs
Office of Management and Budget
Executive Office of the President
Washington, DC 20503

Re: EO 13166

Dear Ms. Aguilar:

This is in response to the request by the Office of Management and Budget (OMB) for comments on Executive Order 13166 (EO 13166). The Association of American Physicians & Surgeons ("AAPS") is a national, nonprofit organization of thousands of physicians, which was founded in 1943.

As recognized by OMB's request, it is "particularly challenging" to estimate the costs and burdens of EO 13166 due to the enormous "breadth and depth of activities" covered by it. OMB acknowledges that EO 13166 requires the provision of translators for the "anything a federal agency does," including "the provision of federal benefits or services, the imposition of a burden on a member of the public, and any other activities a federal agency conducts." OMB concedes that this mandate sweeps in "anything from the receipt of benefits such as Social Security to law enforcement activities or the imposition of taxes."

EO 13166 unjustifiably shifts the burden of understanding the English language from the listener to the speaker. This is extremely costly to the physician and enormously costly to society. It is also completely unjustified. AAPS objects to EO 13166 on all three grounds.

Communication is an integral part of the patient-physician relationship. When the physician cannot understand the patient, the physician invariably takes steps to remedy the miscommunication. But only the patient can decide whether he understands the language of the physician. Retrospective determination in a legal proceeding is unlikely to be reliable or fair, as it will be colored by prospect of gain after a bad result from whatever cause. This prospect will chill the patient-physician relationship. Good, cost-effective medical care depends on the physician's having the authority as well as the responsibility to determine the adequacy of communication. The informal use of interpretation by family members or friends chosen and provided by the patient is much preferable from the medical standpoint to reliance on hired interpreters unfamiliar with the patient's needs. A strange interpreter cannot help but intrude into a delicate meeting between patient and physician. Shifting the burden of translation to the physician would be highly disruptive to the patient-physician relationship. Moreover, it could degrade rather than improve the mutual understanding of patients and physicians. There are no studies to assess this question.

In addition to the obvious costs of translation, which can exceed the government payment for the services rendered, this shifting of the burden adds substantial risks of liability for alleged malpractice. Only the patient knows whether he understood his physician, but the search for a scapegoat after a disappointing result can lead to allegations of miscommunication. Under EO 13166, physicians can and will be inappropriately sued by patients who misunderstood, or whose attorneys later argue that they misunderstood. It is a costly error to shift the language burden-voluntarily assumed by persons who come to this country but choose not to learn English- to physicians. Costs must be paid in some manner, so medical costs will inevitably be higher for all patients, even English-proficient ones. The increase will, of course, be felt most acutely by those least able to afford it. Moreover, the availability of services will decline as smaller and less affluent medical practices may be forced to close altogether.

The costs imposed by EO 13166 also extend far beyond the substantial burden of compliance. American society bears a trillion-dollar cost for the countless transportation accidents, health care mishaps, and miscommunication errors resulting from the official promotion of a multilingual culture. At least two of the worst aviation accidents in history have been traced to the possible inability of key personnel to understand English (the ValuJet Flight 592 crash in the Everglades in 1996 initially attributed to misunderstanding of the English label on canisters and the jumbo jet collision on Canary Islands in 1977 attributed to "inadequate language").

The New York City Bar Association recommended mandatory English as follows:

In 1993, Chinese pilots flying a U.S.-made MD-80 were attempting to land in northwest China. The pilots were baffled by an audio alarm from the plane's ground proximity warning system. A cockpit recorder picked up the pilot's last words: "What does 'pull up' mean?" What is needed, both in the U.S. and worldwide, is a mandatory spoken English test for pilots and controllers. Aeronautics Committee of New York City's Bar Association Seeks to Raise the Bar on Safety, 12 Air Safety Week, at 33 (Aug. 17, 1998).

Many truck accidents are due to inability of the licensed drivers to understand English directions or road signs. EO 13166 ostensibly requires providing translators for applicants for truck licenses, with inevitably catastrophic results.

Costly tragedies due to miscommunication must also permeate health care and other fields where a misunderstood phrase can result in avoidable deaths. The expansive breadth of EO 13166 cited above promotes and even requires the use of translators to train individuals for life-impacting positions, when instead English proficiency should be required. Just as the pilot's last words in the above example were, "What does 'pull up' mean?", the last words some patients hear could be those of a hospital aide unable to understand an English instruction label.

The costs may go beyond unintentional accidents, as demonstrated by the 9/11 terrorist attacks. For thousands of years, language barriers have been useful as a means of deterring infiltration by an enemy seeking to cause destruction from within. Ancient Israelis detected the possible presence of an enemy based on how he pronounced the word "shibboleth." EO 13166 does the opposite by requiring Americans provide translators even for enemies of our nation. Under EO 13166, a terrorist can enter the United States and obtain services and training without ever learning the English language and thereby understanding American news, ideals, and values.

Time magazine reported after 9/11 that one trucking school trained dozens of non-English speakers through the use of translators. After the end of the training program, these trainees were able to obtain truck licenses. But, alarmingly, they were reportedly not interested in obtaining jobs upon completion of the program. New York City subsequently stopped almost every truck crossing the George Washington Bridge on selected days, ensnarling traffic and costing millions of dollars in wasted time.

EO 13166 lacks Congressional approval and is devoid of statutory basis. Its sweeping breadth attaches the draconian condition of translation, which was never contemplated or endorsed by Congress in passing the affected spending programs. OMB acknowledges that the initially cited basis for EO 13166 was overturned by the Supreme Court in Alexander v. Sandoval, 121 S.Ct. 1511 (2001). OMB insists that EO 13166 has independent authority, but is unable to cite any. None exists.

AAPS respectfully requests that EO 13166 be rescinded in its entirety.


Jane M. Orient, M.D.
Executive Director