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HOSPITAL CARE IN NEW YORK: Enforceability of the Right to Meaningful Language Access

Linda Hassberg and Bradley J. Schloss November 10, 2011

HOSPITAL CARE IN NEW YORK

Enforceability of the Right to Meaningful Language Access

November 10, 2011

Author: Linda Hassberg

By Bradley J. Schloss 1 and Linda Hassberg

I.    Introduction

Hospitals in New York State are required to provide language assistance to consumers with limited English proficiency (LEP). LEP individuals are unable to communicate effectively in English because their primary language is not English and they have not developed fluency in the English language. 2  This article provides an overview and analysis of the applicable federal and state law and complaint processes challenging violations of the right to meaningful language access available to LEP persons receiving services in New York hospitals.

II.     Enforceability of Title VI

In 1964, Congress enacted the Civil Rights Act to prohibit discrimination in many areas of society. 3  Title VI of the Civil Rights Act prohibits national origin discrimination by agencies and entities that receive federal funding. 4  In 1974, the Supreme Court issued the landmark decision, entitled Lau v. Nichols, which determined that the failure to provide meaningful language access to LEP individuals constituted national origin discrimination.  The Court held that Title VI required the defendant school district to take reasonable steps to provide the plaintiff and other LEP students with a meaningful opportunity to participate in federally funded education programs. 5 The Court found that the United States Department of Health, Education, and Welfare’s (HEW) Title VI implementing regulations and guidelines described the obligation of the school district to take affirmative steps to rectify language deficiencies in order to open instructional programs to LEP students. 6 Since most  hospitals receive federal funding,  the holding in Lau v. Nichols also extends to, a hospital’s failure to take reasonable steps to ensure meaningful access for its LEP consumers.

Unfortunately, the ability of affected individuals to ensure compliance of hospitals and health care providers with the antidiscrimination mandates of Title VI was significantly curtailed by a subsequent  Supreme Court decision.  The question of enforceability of the rights provided under Title VI was addressed in Alexander v. Sandoval 7 , in which a Spanish-speaking woman challenged Alabama’s English-only policy requiring the state driver’s license tests to be administered solely in English. 8  Mrs. Sandoval argued that the policy had a disproportionate consequence on applicants for driver’s licenses who had limited proficiency in English. 9

The Supreme Court held that individuals alleging intentional (or “direct”) discrimination under Title VI  had a private right of action to sue a federally funded agency under §601.  However, the Sandoval Court found no language in Title VI demonstrating Congress’ intent to provide a private right of action under §602, the Section which prohibits disparate (“indirect”) impact discrimination.  In other words, individual claims of Title VI discrimination will be dismissed unless they allege that an agency acted to intentionally discriminate against private individuals on the basis of national origin.  After Sandoval, the only private right of action under Title VI is a claim of intentional discrimination, not disparate impact.

III.     Federal Complaint

Although the Sandoval decision has extinguished the right of private parties to sue for disparate impact discrimination, Title VI regulations and federal funding mechanisms provide alternative means to enforce language access mandates. Pursuant to Title VI, Executive Order 13166 10  requires recipients of federal funds to take reasonable steps to ensure meaningful access to their programs by LEP persons.  To determine whether a recipient has done so, the starting point is an individualized assessment that balances four factors:

  1. the number or proportion of LEP persons eligible to be served or likely to be encountered by the program;
  2. the frequency with which LEP individuals come in contact with the program;
  3. the nature and importance of the program, activity, or service provided by the program to people’s lives; and
  4. the resources available to the recipient and costs. 11

The Executive Order directs federal agencies to provide guidance to their finance assistance recipients regarding language assistance to LEP individuals so that it constitutes meaningful access.

For hospitals, the United States Department of Health and Human Services (HHS) requires the provision of language access as a condition of federal funding.  A patient denied language services by a hospital has the option to file a complaint with the HHS Office of Civil Rights (OCR).

A complaint must:

  1. be filed in writing, either on paper or electronically, by mail, fax, or e-mail;
  2. name the health care or social service provider involved, and describe the acts or omissions, that violated the civil rights laws or regulations; and
  3. be filed within 180 days of when the complainant  knew that the act or omission complained of occurred. OCR may extend the 180-day period upon a showing of “good cause.” 12

Following the filing of a complaint, report, or receipt of other information that alleges or indicates possible noncompliance with Title VI or its regulations, OCR begins an investigation.  If the investigation results in a finding of compliance, OCR will inform the recipient in writing of this determination, including the basis for the determination. However, if a case investigation results in a finding of noncompliance, OCR must inform the recipient of the noncompliance through a “Letter of Findings” that sets out the areas of noncompliance and the steps that must be taken to correct the noncompliance. OCR must attempt to secure voluntary compliance through informal means. If the matter cannot be resolved informally, OCR may secure compliance through the termination of federal assistance after the recipient has been given an opportunity for an administrative hearing. OCR may also refer the matter to the Department of Justice to secure compliance through any other means authorized by law. 13

The following  examples of successfully resolved complaints are taken directly from the HHS web site: 14

  • University of New Mexico (UNM) Hospital (NM) – OCR Region VI resolved a complaint which alleged that a 75-year old Spanish speaking individual was not provided with language assistance services during her medical appointment. In response to OCR’s investigation and provision of technical assistance, the Hospital, a 431-bed facility, took corrective action to improve its language services program, including:
    • revising its limited English proficiency (LEP) policy;
    • coordinating its interpreters and translations through a recently established Interpreter Language Service Department;
    • mandating a staff training program on language services;
    • implementing an interpreter qualification testing and training program;
    • posting signs informing the public of the availability of language assistance services;
    • translating over 900 forms and vital documents; and
    • conducting periodic reviews and monitoring to ensure the effectiveness of language services for LEP persons.

These corrective actions also were implemented at the Hospital’s off-site clinics, as well as the UNM Children’s Hospital, UNM Children’s Psychiatric Center, UNM Adult Psychiatric Center, the UNM Cancer Center, and the UNM Carrie Tingley Hospital.

  • Marin General Hospital (MGH), Greenbrae (CA) – A community advocate on behalf of a Spanish-speaking LEP person filed this complaint against MGH. Marin County has a substantial LEP Latino population. The complaint alleged that MGH discriminated against an LEP individual on the basis of his national origin by failing to provide him with an interpreter during his hospital stay and when given discharge instructions, and that MGH’s failure to provide language assistance to LEP persons denied them an equal opportunity to access MGH’s services.

OCR’s investigation substantiated the allegations in the complaint and as a result of our investigation, MGH has taken substantial action steps to augment services to its LEP patients. In response to OCR’s finding, MGH took the following actions:

  • formed an Interpreter Task Force to enhance its services to LEP patients and visitors;
  • revised its policy on providing language assistance to LEP persons;
  • provided OCR with information on a new program offered by MGH’s parent corporation that determines if willing MGH employees can provide basic and/or medical interpretation for LEP patients and visitors;
  • contracted with a service to provide telephonic interpretation for LEP patients;
  • appointed a translation services coordinator to oversee the facility’s interpretation and translation services; and
  • began monthly training of all new hospital employees on its translation services programs and MGH’s LEP policies and procedures.

Importantly, MGH now determines if a patient is LEP during the admitting process and regularly translates discharge instructions into Spanish for its Spanish-speaking patients. MGH also provided OCR with documentation of multilingual posters; interpreter services notices, and hospital signage available in Spanish.

  • Northwestern Medical Faculty Foundation (NMFF) – Based on reports from advocacy groups, OCR conducted a review of NMFF to determine the extent to which NMFF was providing interpreter services to its patients who are limited in their English proficiency (LEP), and OCR also reviewed NMFF services to persons who are hearing-impaired. In June 2005, NMFF’s president signed two agreements with OCR, one pertaining to NMFF’s services to its hearing-impaired patients and the other pertaining to its services to its LEP patients.  On the LEP issues, the covered entity agreed:
  • to increase patient awareness of the availability of language assistance and increase staff awareness of procedures for providing language assistance;
  • to make changes in its patient tracking system to ensure that if an LEP patient used an interpreter on one visit, the patient would be asked if he or she would require an interpreter on all subsequent visits;
  • to make technological changes helpful in facilitating language assistance;
  • to include the right to interpreter services in the NMFF “Patient Bill of Rights” and provide pamphlets about the availability of interpreter services in all of its doctors’ offices;
  • to train all staff, including its physicians, on their obligations under Section 504 and Title VI; and,
  • to publish pamphlets about the availability of interpreter services that will be prominently displayed in its physician members’ offices.

Based on the descriptions of resolutions procured by HHS after investigation, it appears that a federal administrative complaint can be very effective.  As noted earlier, OCR can refer a complaint to the U.S. Department of Justice for prosecution if it deems the resolution process to be unsuccessful. 15  However, complainants do not have any control over the investigatory process and we were unable to ascertain the length of time it might take for OCR to conduct an investigation and achieve results or make a determination to refer to the Justice Department.

IV.     State Law

Article 28 of NY Public Health Law sets forth the legal obligations of hospitals, residential health care facilities, and other health care providers to their patients. The statute also charges the Commissioner of the New York State Department of Health (NYDOH) with the responsibility of monitoring compliance.  Although the statute itself does not address language access in a hospital setting, the regulations make it clear that meaningful language access is a patient right. 16

Specifically, the Patient’s Bill of Rights requires that:

(7) the hospital shall develop a Language Assistance Program to ensure meaningful access to the hospital’s services and reasonable accommodation for all patients who require language assistance. Program requirements shall include:

(i) the designation of a Language Assistance Coordinator who shall report to the hospital administration and who shall provide oversight for the provision of language assistance services;

(ii) policies and procedures that assure timely identification and ongoing access for patients in need of language assistance services;

(iii) the development of materials that will be made available for patients and potential patients that summarize the process and method to access free language assistance services;

(iv) ongoing education and training for administrative, clinical and other employees with direct patient care contact regarding the importance of culturally and linguistically competent service delivery and how to access the hospital’s language assistance services on behalf of patients;

(v) signage, as designated by the Department of Health, regarding the availability of free language assistance services in public entry locations and other public locations;

(vi) identification of language of preference and language needs of each patient upon initial visit to the hospital;

(vii) documentation in the medical record of the patient’s language of preference, language needs, and the acceptance or refusal of language assistance services;

(viii) a provision that family members, friends, or non-hospital personnel may not act as interpreters, unless:

(a) the patient agrees to their use;

(b) free interpreter services have been offered by the hospital and refused; and

(c) issues of age, competency, confidentiality, or conflicts of interest are taken into account. Any individual acting as an interpreter should be 16 years of age or older; individuals younger than 16 ears of age should only be used in emergent circumstances and their use documented in the medical record.  17

A.    Administrative Complaints

NYDOH provides a complaint process for patients whose rights under the Patient’s Bill of Rights may have been violated. As a first step, the patient should “express complaints about the care and services provided and to have the hospital investigate such complaints.” 18  As a follow up, the hospital must notify the patient that he or she can request a written response indicating the findings of the investigation.

If the patient is not satisfied with the hospital’s response, the patient may file a complaint 19 with the NYDOH’s Office of Health Systems Management. 20  The NYDOH is tasked with monitoring all health providers in New York State and the New York State Commissioner of Health has the power to conduct a comprehensive investigation of any hospital.  Such comprehensive inspection shall include, but not be limited to, a survey to determine compliance by the facility with applicable statutes and regulations, and observation of a representative sample of all patients or residents and their medical records to determine the quality and adequacy of the care and treatment provided. 21

If the commissioner determines that a hospital has violated state public health rules and regulations, then he may levy fines and other penalties. 22  In the event that these penalties do not cure the problem, “the commissioner may institute or cause to be instituted in a court of competent jurisdiction proceedings to compel compliance with the provisions of this article or the determinations, rules, regulations and orders of the commissioner or the council.” 23

B.    Litigation

There is no clear statutory basis for an LEP patient to sue a hospital directly for violation of the right to language access.  Although the statute does not expressly preclude suit by the aggrieved individual who exhausts the complaint process and remains unsatisfied with the results, we were unable to find any state court determination that a hospital had violated the rights of individual complainants established by the NY Patients’ Bill of Rights. 24

VI.     Alternative Strategies

A few legal advocates have had success in changing local hospital policy and culture to become more receptive and responsive to the needs of the  community through a form of social justice advocacy that focuses on organizing, mobilizing, and empowering affected individuals and community groups.  One example of a successful social advocacy emerged from a partnership between Make the Road and New York Lawyers for the Public Interest (NYLPI) in Bushwick, Brooklyn. 25   Using a community lawyering approach, community residents actively worked alongside organizers and lawyers in the day-to-day strategic planning of a campaign to increase meaningful access to health care.

The collaborative effort included a variety of legal and non-legal actions to force hospitals to provide equal access to health services for people with limited English proficiency. 26  Community education workshops were conducted to inform health consumers of their legal rights.  Residents were interviewed and asked to respond to surveys about their experiences at the local hospital.  The advocates compiled examples of incidents from the interviews and survey results involving: inability to communicate with doctors because of a lack of interpreters, failure to provide translations of crucial documents, and poor medical outcomes that could be ascribed to language barriers between patients and hospital staff. 27

NYLPI used the compilation to file two civil rights complaints on behalf of Make the Road.  The organizations then held a press conference to announce the complaints and released their findings to the public and the media. 28  They also engaged in public demonstrations, administrative advocacy, and lobbying that eventually succeeded in getting hospital administrators and employees to address their needs. 29

VII.     Conclusion

Neither federal nor New York State law offer a private right of action to challenge a hospital’s failure to provide adequate language access to LEP individuals. These restrictions severely curtail a traditional legal response to discrimination.  Advocates and aggrieved individuals must instead rely on administrative complaints and the willingness of federal and state agencies to mandate compliance by hospitals through investigation, recommendations for policy and procedural changes, and enforcement in the courts.  Individuals and advocacy organizations can file complaints with either the OCR or with the NYDOH.  However, complainants cannot control the scope or pace of investigation nor decide whether to pursue enforcement if persuasive methods fail.

Social justice advocacy that combines legal action with community and health care provider organizing may offer an alternative that will not only improve hospital services, but empower local community members to demand that their needs be addressed.  The hope is that such advocacy will forge a better relationship between the institution and the community it serves, one that encourages communication and interaction on a variety of issues.

Empire Justice Center is currently exploring these and other alternatives to assist LEP people who have limited legal rights.  For example, staff are collecting and analyzing information from community organizations and health care advocates about a local hospital on Long Island that reportedly is not providing appropriate language access in direct care or ancillary services such as billing,  insurance applications, and charity care to the Spanish-speaking community it serves.  Please contact Linda Hassberg for additional information.

  1.  Bradley Schloss was a 2011 summer law intern at Empire Justice Center on Long Island.  The authors thank Lawrence Antoniello, a volunteer attorney at the Long Island office, for his assistance in editing this article.
  2.  U.S. Dept. of Justice, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 65 Fed. Reg. 50,123, 50,124 (August 16, 2000), available at: http://www.usdoj.gov/crt/cor/Pubs/guidfr.pdf. Federal financial assistance includes grants, training, and use of equipment, donations of surplus property, and any other assistance provided to a recipient agency or to a program or service provided by that agency or entities that receive funding from that agency.  See 28 C.F.R. § 42.102.
  3.  42 U.S.C. §2000d et seq.
  4.  Title VI of the Civil Rights Act of 1964 provides: “[n]o person in the United States 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.”
  5.  Lau v. Nichols, 414 U.S. 563, 566 (1974).
  6.  Id. at 567-68.
  7.  532 U.S. 275 (2001)
  8.  Id. at 278-79.
  9.  Id. at 279.
  10.  Exec. Order No. 13166, 65 Fed Reg. 50,121 (Aug. 11, 2000).
  11.  67 FR 41455
  12. http://www.hhs.gov/ocr/civilrights/complaints
  13. http://www.hhs.gov/ocr/civilrights/resources/specialtopics/lep/finalproposed.html
  14. www.hhs.gov/ocr/civilrights/activities/examples/LEP
  15.  Id.
  16.  10 NYCRR § 405.7
  17.  10 N.Y.C.R.R. §405.7(a)(7)
  18.  10 N.Y.C.R.R. § 405.7(c)
  19.  Complaint form can be found at http://www.health.ny.gov/nysdoh/healthinfo/complaintform.htm
  20.  10 N.Y.C.R.R. § 405.7(b)(23)
  21.  NY CLS Pub Health § 2803(1)(a)
  22.  NY CLS Pub Health § 2803 (3)
  23.  NY CLS Pub Health § 2803(5)
  24.  Actions were brought against the hospitals by patients pursuant to the NY Patients’ Bill of Rights in addition to the Americans with Disabilities Act (“ADA”) and Rehabilitation Act (“RA”). in two federal district court cases.  Loeffler v. Staten Island University Hospital. Loeffler v. Staten Island University Hosp., 582 F.3d 268, 279 (2d Cir. 2009); Walters v. New York City Health Hosp. Corp., 2005 U.S. Dist. LEXIS 1895.  However, the claims were barred or withdrawn for procedural reasons.  Neither court ruled upon the validity of the claim, but the Walters court stated in dicta that the statute did not appear to set forth a private right of action.
  25.  For a detailed description of the Bushwick campaign and an analysis of the strengths and weaknesses of the community lawyering approach, see Rose Cuison Villazor, Community Lawyering: An Approach to Addressing Inequalities in Access to Health Care for Poor, Of Color, and Immigrant Communities, 8 N.Y.U. J. Legis. & Pub. Pol’y 35, 49- (2004-2005).
  26.  Id. at 54-58.
  27.  Id. at 56.
  28.  Id.
  29.  Id. at 58, n. 141.