The Business, Quality and Legal Case for Immigrant Health

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Providers’ Legal Obligations to Provide Language Assistance Services

By

David B. Hunt, J.D.

An elderly male Hmong patient was recently admitted to a Midwestern hospital. The patient spoke no English. No interpreter was provided to him. Instead, his attending nurse attempted to communicate with the patient via hand gestures. Each time the nurse spoke to the patient in English and gestured with her hands, the elderly gentleman would look at her, smile and nod. After three days in the hospital, a Hmong interpreter was finally arranged. When the attending nurse was asked why she hadn’t used an interpreter, she said that she and the patient were communicating just fine and that she didn’t feel the need to call one. Under further questioning however, the nurse acknowledged that she did not know how to access an interpreter, had received no training on how to communicate with patients via an interpreter and had not apprised the patient of his legal right to an interpreter. Unbeknownst to the nurse, the Hmong patient was blind.

This story is repeated every day in some form throughout the United States. Such stories represent an ongoing tragedy for Limited English Proficient (LEP) patients and their families who are denied both high quality health care as well as their civil rights. But they also represent a tragedy for many well-intentioned medical professionals who are unaware that their ignorance of existing laws requiring the provision of language assistance services could compromise patient care and create both legal liability as well as medical malpractice exposure. FN 1.

Providers’ failure to ensure meaningful access to language assistance for people with limited English skills can have serious, even life or death consequences as the following cases demonstrate:

• A hospital in South Carolina had a policy of prohibiting women with limited English skills from receiving an epidural during labor and delivery. FN 2
• Hongkham Souvannarath, a 52-year-old refugee from Laos was jailed by the Fresno California County Health Department for almost eleven months because she did not take medication for a case of tuberculosis that health officials feared could become contagious. Ms. Souvannarath stopped taking her medications, in part,because she understood a non-Laotian appointedinterpreter to say that the medicine would kill her. Souvannaroth was taken at gunpoint to the county jail after being told she was being taken to a hospital. There she was strip-searched and initially housed in a safety cell for three days because a Hmong officer misinterpreted her Laotian comment that she was “afraid to die” as a suicide threat. While in confinement she was frequently handcuffed, shackled and chained to her bed. Only one guard occasionally provided interpretation services and she was unable to communicate her needs to jail personnel. A subsequent lawsuit against the County settled for $1.2 million. FN 3.
• A young boy in Los Angeles interpreted a consent form for his father that pertained to his ailing mother. The son thought the form meant that a nurse would make daily visits to care for his mother, and the father signed the form. Instead, the mother was sent to a nursing home. FN 4.

This chapter is organized into two parts. In Part One, we will describe the existing framework of federal and state laws that require health care organizations to provide language assistance services and “culturally appropriate care” to Limited English Proficient patients. In this section, we will also describe what health care organizations and medical professionals must do to comply with these laws. In Part Two, we will describe a variety of policy initiatives currently being discussed to promote more culturally and linguistically appropriate care and the legal issues presented by these policies. In particular, this section will discuss legal issues associated with: (1) promoting the collection of data related to race, ethnicity and primary language by health plans, hospitals and government programs; (2) providing cross-cultural medical education to doctors and nurses; and (3) implementing a comprehensive language access agenda.

Part One: Federal and State Laws Requiring Language Assistance

The Civil Rights Act of 1964, of which Title VI is a part, created broad national powers to end discrimination in employment, places of public accommodation (such as hospitals) and programs and activities that receive federal financial assistance. The legislative history of Title VI indicates that health care was prominent in the minds of its authors as passage of the 1964 Act was contemporaneous with the judicial ruling in Simkins v. Moses H. Cone Memorial Hospital. FN 5. Simkins was a landmark case in which the courts struck down as unconstitutional key portions of the Hill Burton Act which had authorized the use of federal funds to construct and operate segregated health care facilities.

Title VI of the Civil Rights Act of 1964prevents federal money from being used to support activities and programs that discriminate on the basis of race, color or national origin. Section 601 of Title VI states that no person shall “on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”FN 6. Under section 602, the Department of Health and Human Services (HHS) has issued regulations that say recipients of federal funds cannot:

[U]tilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect to individuals of a particular race, color, or national origin. FN 7

In 1974, the U.S. Supreme Court affirmed these regulations in Lau v. Nichols.

FN 8. Lau involved aSan Francisco, California school district that was desegregated under court order in 1971. The desegregation process left 1,800 Chinese-American students who did not speak English in schools without supplemental English language courses. The Court recognized that “there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers and curriculum, for students who do not understand English are effectively foreclosed from any meaningful education.” FN 9 The Court held that the school district’s failure to take affirmative steps to provide language assistance constituted national origin discrimination under Title VI. FN 10

Significantly, the key provisions of Title VI of the Civil Rights Act of 1964 have gradually been incorporated into virtually every major federal statute of significance to health care. For example, Title VI’s provisions have been incorporated into Medicaid, Medicare, Medicare Plus Choice, the State Children’s Health Insurance Program (SCHIP), the Hill Burton Act, the Community Health Centers Act and the Maternal and Child Health Block Grant Programs. As a result, nearly every state and local government, health plan, hospital and physician that receives federal monies is bound by Title VI. The requirements of Title VI apply to all recipients of federal funds, regardless of the amount of federal funds received. Further, HHS has enforced Title VI against health care organizations and providers that have failed to provide language assistance to LEP patients. The rationale for doing so is virtually the same as the Supreme Court’s analysis in Lau. According to HHS, “a recipient of Federal financial assistance that does not have the ability to communicate with LEP persons deprives such persons of an equal opportunity to participate and benefit from the federal program.” As a result:

No persons may be subjected to discrimination on the basis of national origin in health and human services because they have a primary language other than English. FN 10

Litigating Language Assistance Requirements Under Federal Law

Title VI addresses two types of discrimination. The language of Title VI plainly addresses intentional discrimination. However, regulations issued pursuant to Title VI also address policies or practices that may be neutral on their face but have the effect of discriminating on the basis of race, color or national origin (the “disparate impact” theory or “effects” test).

Until recently, immigrants and other private litigants were permitted to sue to enforce Title VI regulations prohibiting acts with discriminatory effects. However, the United States Supreme Court in the 2001 case of Alexander v. Sandoval ruled that there is no private right of action under the Title VI regulations. FN 12. Sandovalinvolved a class of non-English speaking residents of Alabama, who alleged that the state’s policy of offering the driver’s license exam only in English amounted to national origin discrimination under the previously mentioned “effects” provision of the Title VI regulation. While the Court of Appeals for the Eleventh Circuit agreed, the Supreme Court ruled that private parties lacked the authority to file a lawsuit to enforce the effects provision of the Title VI regulation.

In the aftermath of Sandoval, immigrants and other private plaintiffs must now establish that the conduct in question amounts to intentional discrimination under Title VI. FN 13.Significantly however, while Sandovalapplies to private parties, it has no effect on the federal government’s ability to pursue civil rights cases using the effects test under the Title VI regulation. The authority of agencies such as the Office for Civil Rights at the Department of Health and Human Services remains unchanged.

Immigrants can invoke the protections of Title VI in one of two ways. First, one could file a written complaint with the Office of Civil Rights. Alternatively, one could file a lawsuit under Title VI. From the standpoint of the immigrant plaintiff, there are many advantages to filing an OCR complaint. Filing an OCR complaintdoes not require a lawyer. If OCR becomes involved it can investigate both allegations of intentional discrimination under Title VI and disparate impact under the Title VI regulations. If OCR investigates and makes a finding of discrimination, that can be very powerful evidence against the defendant. Moreover, the involvement of OCR frequently results in a resolution of the case, sparing both the expense and uncertainty of protracted litigation.

Once a complaint is filed, OCR will investigate its’ merits by reviewing the pertinent practices and policies of the hospital or provider that is the subject of the complaint, the circumstances under which the possible noncompliance occurred, and other factors relevant to a determination of whether the defendant has failed to comply with Title VI. If OCR finds noncompliance, it will first seek voluntary compliance by the provider. OCR’s ultimate sanction is to terminate federal funding to the provider, either in an administrative proceeding or by referring the case to the Department of Justice for litigation.

Despite the stated advantages of filing a complaint with OCR, substantial evidence suggests that this route has severe limitations. OCR has consistently lacked the funding and the staff for conducting systematic compliance reviews. FN 14. As a result, the agency has frequently been criticized as being reactive rather than proactive. Moreover, the complaint approach used by OCR has several specific problems when it comes to addressing racial and ethnic disparities in health care. First, immigrants generally are not prone to file complaints, whether out of fear of possible retaliation or possible deportation in the case of illegal aliens. Second, with some notable exceptions, the advocacy community has not been focused on this issue since the Supreme Court issued the Sandovaldecision. Third, OCR’s lack of technical expertise in the medical area results in few complaints being upheld. Finally, even after a complaint enters the system, OCR’s investigative processes are inadequate and slow in finding violations, resulting in inordinate lengths of time for case resolution and a finding of compliance in most race-related cases. (OCR has never terminated federal funding for any provider no matter how egregious the offense.)

Although OCR’s track record of effectiveness may be less than inspiring, providers dare not take it for granted. According to Thomas E. Perez, Former Director, Office for Civil Rights at the U.S. Department of Health and Human Services, language access cases are easily OCR’s most frequently encountered type of Title VI case. FN 15. Language access cases, Perez notes, are also the most frequent subjects of OCR Title VI compliance reviews.

Over the last 30 years, OCR has undertaken thousands of investigations and reviews involving language differences in health care. A sampling of recently settled OCR cases shows that intentional discrimination against immigrants and/or Limited English Proficient patients is hardly a thing of the past:

• OCR settled a case involving Visiting Nurse Services, a home health care agency in Western Massachusetts. Although the agency is located in an area with a significant Spanish speaking population, complainants alleged that the agency would not provide interpreters to LEP patients and refused to accept patients for home care services if they did not speak English.

• OCR reached a settlement with the RanchoLosAmigosRehabHospital, a county-run hospital in Los Angeles. Complainants in the case alleged that the hospital discriminated against LEP patients by failing to provide free interpreters and by routinely requiring LEP clients to bring a family member or friend to interpret for them and routinely requiring LEP clients to pay for services.

• OCR reached a settlement with a hospital located near the U.S.-Mexico border in McAllen, Texas, that ordered its security personnel to dress up in uniforms that closely resembled the U.S. Border Patrol. This policy had the effect of deterring Latinos in the area from using the facility. FN 16

The National Health Law Program has researched many of the formal complaints between OCR and providers. The overwhelming majority of these reviews involved hospitals. However, recently the subject matter of OCR reviews has broadened, to include investigations regarding:

• Renal dialysis: for failing to provide qualified interpreters (CookCountyHospitalRenalDialysisCenter);

• Managed care: for failing to ensure that Medicaid health maintenance organizations did not engage in marketing practices which deny information or enrollment opportunities to LEP persons (Illinois Department of Public Aid);

• State Department of Health: A preliminary assessment found that the North Carolina Department of Health and Human Services has turned LEP clients away because no interpreters were available; required LEP clients to use family members and friends as interpreters; and failed to assess language needs of national origin groups, evaluate interpreter competency, have procedures to determine when written materials need translation, train staff on language access requirements, and notify LEP persons that interpreter services are available to them at no cost.

OCR representatives have indicated that the most frequently encountered language access problems are providers who: (1) directly or indirectly require patients to provide their own interpreter service, through family or friends; (2) fail to provide interpreter service, or provide untrained personnel; and (3) subject people with limited English skills to lengthy delays as a result of the lack of readily available interpreter services. FN 17.

Although they involve a range of providers and situations, the OCR cases share a number of common features. Specifically, they require providers to:

• Develop a written plan for providing LEP services.
• Designate a staff person to coordinate Title VI activities;
• Provide information and training to staff on these policies;
• Post translated notices that contain information on the availability of no cost interpreters;

• Maintain effective interpreter services by emphasizing in-person interpretation and, to the extent possible, minimize telephone interpretation;

• Provide translation of important forms and documents;

• Collect and analyze data to determine if interpreter services are effective;

• Monitor subcontractors and include a nondiscrimination clause in all contracts for services. FN 18.

Recent Developments: Executive Order 13166 and DHHS Guidance

In recent years, with immigration at record highs, there has been a spate of new federal developments with respect to the provision of language assistance services to immigrants. On August 11, 2000, President Clinton issued Executive Order 13166, entitled Improving Access to Services for Persons with Limited English Proficiency. Executive Order 13166 required every federal agency that provides federal assistance, including HHS, to publish a Title VI guidance to explain to recipients of federal funds how to provide access to LEP persons and achieve compliance with the Title VI regulations. The HHS Office of Civil Rights issued an initial guidance on this topic on August 30, 2000. Subsequently, on August 4, 2003, HHS published a revised Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting English Proficient Persons (2003 HHS LEP Policy Guidance). FN 19. The Guidance made clear that it did not create new obligations but rather, clarified existing Title VI responsibilities.

What Providers Must Do to Comply With Federal Language Access Laws

OCR’s 2003 LEP Policy Guidance outlines the responsibilities of health and human service providers under Title VI to ensure that people with limited English skills can meaningfully access health and human services. It also provides a roadmap to assist providers in meeting their legal obligations. Providers who are subject to these obligations include hospitals, nursing homes, state Medicaid agencies, managed care organizations, home health agencies, state, county and local health agencies and physicians and other providers who receive Federal financial assistance from HHS.

The Guidance defines a Limited English Proficient individual as “individuals who do not speak English as their primary language and who have a limited ability to read, write, speak or understand English.” Significantly, LEP individuals may not only be the patient themselves but also parents and legal guardians of minors eligible for coverage.