Laws

Title VI of the Civil Rights Act of 1964 Medicaid law and related regulations The Hill-Burton Act Miscellaneous Federal programs		The Emergency Medical Treatment and Labor Act Tort Liability State Laws

section links

Overview

Reports
Laws

Title VI of the Civil Rights Act of 1964

Title VI of the Civil Rights Act of 1964 states, "No person in the United States shall, on 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." Title VI applies to all recipients of federal funds, without regard to the amount of federal funds that they have received. It covers doctors who treat Medicaid or Medicare patients as well as hospitals that receive millions in federal grants.

Under federal law, providers are not only prohibited from singling out patients based on race or national origin, they cannot employ practices that have a discriminatory impact on individuals based upon their race or national origin. Federal regulations that implement Title VI provide that:

A recipient . . . may not . . . utilize 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 [with] respect [to] individuals of a particular race, color or national origin. [42 C.F.R. 80.3(b)(2)]

The failure of providers to overcome language barriers to care has a serious discriminatory effect on foreign born non-English speaking patients, depriving them of services that are as effective as those received by the rest of the community. This discriminatory effect violates Title VI rules. The courts have not addressed whether language discrimination in health care violates Title VI rules. However, in Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court has held that failure to provide bilingual education violates Title VI and its implementing regulations. Title VI can be enforced through administrative proceedings before the Office for Civil Rights of the Department of Health and Human Services (OCR) or through direct litigation in federal court. Advocates have pursued claims against hospitals, clinics and social service agencies for failure to provide language access before the OCR, sometimes with great success. In Washington, Evergreen Legal Services pursued a series of administrative complaints against hospitals and social service agencies before the Office for Civil Rights of the Department of Health and Human Services. The resolution of these complaints produced a system of trained, qualified interpreters that serves health clinics, hospitals and state administrative agencies in areas throughout the state. OCR review has some disadvantages as well. Because OCR has a limited staff, OCR review can take years. While OCR has the power to suspend federal funding to facilities that violate Title VI, federal statutes and regulations require OCR to settle complaints whenever possible and these settlements have sometimes produced meager and disappointing results for complainants. Plaintiffs also may bring Title VI claims directly in federal court. Title VI litigation offers plaintiffs the advantage of control over their own cases. While OCR maintains control over administrative investigations of Title VI complaints, Title VI plaintiffs can present their own cases as they see fit. Plaintiffs can obtain discovery of facts they may not be able to uncover in an administrative proceeding and have more control over the pace of the case. Litigation has disadvantages as well. To date, no reported decision holds that failure to provide language access in health care constitutes discrimination based on race or national origin. OCR has twice drafted, but never implemented, regulations that would have made this point clear. Advocates mounting a challenge on this basis would have to urge the court to extend Title VI in a new context, a potentially difficult prospect in these conservative times.

Medicaid law and related regulations

A number of Medicaid provisions require state Medicaid agencies and providers to overcome language barriers. Under federal regulations, state agencies must publish, in quantity, and make available bulletins that explain the rules governing eligibility and appeals "in simple and understandable terms." 42 C.F.R. 435.905(b). State agencies must provide services "without delay." 42 C.F.R. 435.906. At least one reported decision has construed similar state law provisions to require the use of interpreters. Siemion v. Illinois Dep't of Public Aid, 522 N.E.2d 627 (Ill.App. 1988). State agencies must inform applicants and recipients of their administrative hearing rights in a language understood by the claimant, and must provide interpreters at hearing. Health Care Financing Agency, State Medicaid Manual 2900.4 and 2902.9. Long-term care residents must receive notice of their rights in a language understood by them. 42 C.F.R. 483.10(b)(1). States must inform non-English speaking individuals about Medicaid services for children using methods of communication that they can understand. Health Care Financing Agency, State Medicaid Manual 5121.A.

In addition, in some states, Medicaid managed care has become a vehicle for expanding the availability of linguistically appropriate health care services. Thirty nine states and the District of Columbia have obtained waivers allowing them to implement managed care for their Medicaid populations. Medicaid Managed care contracts increasingly require plans that enroll Medicaid recipients to provide non-English speaking enrollees with appropriate interpreting and translation services. Under California's managed care contract, plans must collect data on the language needs of their Medicaid patients. Plans are required to provide non-English speaking patients with access to qualified interpreting and translation services when patients contact plan personnel or plan providers. Plans also are required to create consumer advisory committees consisting of representatives from immigrant communities to advise them in the formulation of policies on language access. --H.S.

The Hill-Burton Act

Under the Hill-Burton Act, facilities that have received federal funds undertake a "community service" assurance that lasts forever. 42 U.S.C. 291 et seq. This obligation requires facilities to make services "available to all persons residing . . . in the facility's service area without discrimination on the ground of race, color, national origin, creed or any other ground unrelated to an individual's need for service or the availability of the needed service in the facility." 42 C.F.R. 124.603(a).

OCR has held that the requirement of non-discrimination contained in Hill-Burton requires hospitals to address the needs of non-English speaking patients. Past OCR administrative remedies have required hospitals to develop lists of bilingual interpreters; establish procedures for communicating with non-English speaking patients at all hours of a facility's operation; and notify patients that interpretive services are available.

To enforce Hill-Burton, patients must first file a complaint with OCR. If the agency fails to take action within six months of the complaint's filing, the claimant can pursue judicial relief. --H.S.

Miscellaneous Federal Programs

A number of federally financed programs have special obligations to provide linguistically appropriate health care services. State programs that receive funds under the federal Vaccines for Children Program must identify providers who are able to communicate with limited-English speaking parents in their own language. 42 U.S.C. 1396s(c)(5)(B). Federally financed community health centers and migrant health centers that serve substantial numbers of limited English speaking patients must provide linguistically and culturally appropriate services and outreach. 42 U.S.C. 254b and 254c. --H.S.

The Emergency Medical Treatment and Active Labor Act

To avoid federal restrictions on patient dumping, hospitals are required to take an active role in communicating with patients who come to their facilities in an emergency condition.

Under the Emergency Medical Treatment and Active Labor Act (EMTALA) 42 U.S.C. 1395dd, hospitals that accept Medicare and have emergency facilities are prohibited from discharging or transferring patients who suffer from emergency conditions, unless they have provided adequate medical screening. Hospitals are also prohibited from transferring patients who have not been stabilized, unless they obtain the patient's informed consent and determine that the medical benefits of the transfer outweigh the risks involved.

Plainly, a hospital must make some attempt to communicate with a non-English speaking patient prior to discharge or transfer in order to avoid potential liability under EMTALA. While the standards of adequacy under EMTALA are relatively low, the act of turning away a non- English speaking patient suffering from an emergency condition due to a hospital's lack of interpretation services appears to violate the statute's mandates. In addition, the transfer of a non-English speaking patient before she has been stabilized is improper, absent genuine and effective communication of the potential consequences of the transfer in a language the patient could understand. Hospitals that violate EMTALA can be cited by the federal Health Care Financing Administration and fined up to $50,000 for each violation. In addition, violations of EMTALA can be the basis for civil lawsuits for money damages and injunctive relief. --H.S.

Tort Liability

When providers perform medical procedures on individuals with whom they have never effectively communicated, who have no understanding of the consequences of the procedure, the potentials for tort liability are endless. National standards set by the Joint Committee on Accreditation of Hospitals, the Joint Committee on Accreditation of Healthcare Organizations and the National Committee on Quality Assurance all call for the use of linguistically appropriate services. Violation of these standards, as well as simple common sense, indicate that failing to overcome language barriers to health care constitutes professional negligence.

In addition, in most states, a provider who performs medical procedures on a patient without their informed consent has committed a battery, and faces liability for negative consequences resulting from the procedure. In light of the potential liability involved in failing to provide linguistically appropriate services, it is astonishing that so many providers fail to make serious efforts to overcome language barriers to health care.--H.S.

State Laws

A handful of state statutes require providers to furnish linguistically appropriate health care services. Those few states that have adopted these protections have often stated provider obligations in equivocal terms. For instance, California Health and Safety Code 1259 requires hospitals to provide qualified interpreters "to the extent possible, as determined by the hospital." With a few notable exceptions, these state provisions also have largely been unenforced. They nevertheless remain valuable tools for advocates seeking to broaden language access for non-English speaking patients. In San Francisco, legal services attorneys filed a lawsuit under California's Dymally-Allatorre Act, Welfare and Institutions Code 7290 et seq., challenging the county welfare office's language access policies. Under the terms of a settlement reached between the parties in 1992, the county has translated various documents into Chinese, Spanish and Vietnamese personnel and hired additional bilingual staff. State agencies have also broadened language access through administrative proceedings. In Massachusetts, the Department of Public Health requires hospitals to provide qualified interpreters for non-English speaking patients as a condition of receiving permission to expand their facilities under the state's Determination of Need process. --H.S.

essentials | models and practices | policy | legal issues | networking
table of contents | contact us | who we are

Copyright © 2003, DiversityRx; www.diversityRx.org, Last update: Tuesday, March 25, 2003

 DiversityRx is sponsored by: