Last week, I discussed the existence of language laws and standards geared towards providing access to quality care for speakers with limited English proficiency (LEP). Though these statutes are not necessarily an aspect that should be taught to medical professionals other than interpreters, they are an important piece of knowledge for course instructors who may need to offer their students guidance. In this post, I will briefly describe the following law and standards as they apply to the context of LEP patients in the medical setting: Title VI of the Civil Rights Act of 1964, HHS Regulation on Implementing Title VI and Executive Order 13166. Of all the sources I have read or seen on the topic, the one I find best explains it is a 25 minute training video in which Paul Cushing, the regional manager of Region III for the Office of Civil Rights, explains the implications of Title VI for LEP individuals. The information in this post in summarized from that training and the video has also been embedded at the end of this post.
Title VI of the Civil Rights Act of 1964
No 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. (section 601 of Title VI of the Civil Rights Act of 1964 42 U.S.C. Section 2000d et. seq.)
The Civil Rights Act of 1964 is the main statute from which all subsequent laws and regulations on civil rights have been created. Within this law, Title VI deals specifically with the relationship between government funded agencies and discrimination. Though this may sound fairly straight forward, there is actually a rather large manual published on it describing all of its implications because, in reality, it is rather general and open to interpretation. For example, what is meant by national origin? Here, national origin is not country of citizenship but instead country of origin. What is a federally funded program? Any entity that receives or received money or financial benefits from the office of Health and Human Services including grants, loans, contracts or subcontracts –this would also include Medicaid and Medicare funds. Thus, any hospital, clinic or health program that receives any form of funding is held accountable in terms of discrimination, whether that be outright discrimination in terms of denying benefits (disparate treatment), policy or practice discrimination in terms of creating policies or standards that may negatively affect a specific group, such as moving to a location outside the reach of reliable public transportation (disparate impact), or retaliation on someone who blows the whistle on discriminatory behavior.
Up to this point, it does not sound like Title VI has anything to do with LEP individuals in the healthcare setting. For that we need to look at the HHS Regulation on Implementing Title V.
HHS Regulation on implementing Title VI
As opposed to a law, regulations are passed in order to help with the implementation of a law but still carry the same weight as the law itself. Therefore, the regulatory connection between the law and LEP individuals was made through this statement: “Recipients 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…” 45 C.F.R. Section 80.3 (b)(2). The HHS regulation Implementing Title VI (Sec. 601 & 602). This was then upheld by the Supreme Court in 1970 (Lau v. Nichols) which determined that national origin also includes aspects of language proficiency, as the two are closely related and thus national origin cannot be respected without also respecting the fact that they may speak the language of that origin and not English. Thus, as Cushing points out, “Title VI prohibits conduct that has a disproportionate effect on LEP persons because such conduct constitutes national-origin discrimination”
Executive Order 13166
The Executive Order 13166 was first passed in 2000 by Clinton Administration, reaffirmed in 2003 by the Bush Administration, and is still in effect today. Given that the HHS Regulation and supreme court presidency stipulate that access for LEP individuals is required through Title VI, the purpose of the Executive Order is to further describe what that implies. Specifically it requires, first, that federally funded agencies provide meaningful access to LEP individuals and, secondly, that federal granting agencies publish Title VI guidelines. Guidelines, as opposed to regulations, are non-enforceable recommendations that seek to provide criteria that enable entities to know when they are (or are not) in compliance with a given law. For example, Title VI and its implementing regulations require that federally funded agencies “take reasonable steps to ensure meaningful access to their programs, activities and services for LEP persons”. Nevertheless, the concept of what is reasonable is quite debatable. Thus the guidelines were created to further define those reasonable steps and meaningful access.
In defining this concept, it was first necessary to determine who is LEP: “An LEP individual is a person who does not speak English as their primary language and who has a limited ability to read, write, speak or understand English”. Next, four criteria were created to help agencies know what size of a step or change would be considered reasonable and allow for meaningful access. Since reasonable embodies the sense of that which is appropriate for a given setting, these criteria are meant to be flexible and allow agencies to follow the law within the reality of their situation. These four criteria, according to Paul Cushing, are:
- Number or proportion of LEP persons eligible to be served or likely to be affected by the program – Number of LEP persons live in the surrounding area and or enter the organization; number of minors with LEP parents served by the program; number of possible individuals being underserved by the program due to a language barrier.
- Frequency of contact: how often the program encounters these LEP individuals.
- Nature and importance of the program, activity or service: importance of the program and the possible consequences if effective communication is not achieved.
- Costs and resources available to the entity to implement language services
After evaluating these criteria, the appropriate language support to be offered should be selected (bilingual staff, staff interpreters, contract interpreters, interpreter phone lines, video conferences or community volunteers) keeping in mind the competency of the interpreter and the timeliness of the resource. In terms of competency, the interpreter should be proficient in both languages, have knowledge of the necessary specialized terminology, understand confidentiality and impartiality as well as be aware of their role as an interpreter. As for using family members as interpreters, the guidelines attempt to provide a balance between reasonable access and patient choice. If the patient wants to use a family member as an interpreter, he or she still must be informed that an interpreter can be provided without cost to them and that he or she is not required to provide his or her own interpreter. Also, it is important that the agency does not plan to rely on family members or friends of LEP patients as interpreters. The agency also must evaluate if an interpreter should be provided rather than using the one brought by the patient (such as when a husband comes to interpret in a case of suspected abuse). Further discussion on types of interpreter or language support and their benefits or drawbacks was briefly presented previously in this blog here and here.
As for written documents, the guidelines call for the translation of vital documents, that is, those that are important to a program´s functioning such as notifications of changes, program requirements, etcetera. However, due to the high cost of translation, agencies may choose to start with translating vital documents only to most the common language and then to less common ones as they are able.
Thus, the main law on LEP services in healthcare is Title VI of the Civil Rights Act, nevertheless, other regulations and guidelines that stem from that law are key to its interpretation and implementation. Understanding all of these can help health centers avoid sanctions and provide appropriate care to minority populations. For more information on these standards or for resources that can be used in-clinic with LEP patients, see the federal interagency website for limited English proficiency or the HHS´s Office of Civil Right´s site for limited English proficiency.
Mateo, Julio Jr. “Providing Healthcare to Limited English Proficient (LEP) Patients: A manual of Promising Practices.” California Primary Care Association
Carrasco, Majose. “Title VI of the Civil Rights Act: Language Access to Healthcare“. NAMI Multicultural Action Center.
Civil Rights Office. “Know the Rights that Protect Us From Discrimination Based on Race, Color or National Origin“. Department of Health and Human Services.
(2011). “Common Language Access Questions, Technical Assistance, and Guidance for Federally Conducted and Federally Assisted Programs.” Federal Coordination and Compliance Section Civil Rights Division.
(2011). “Language Access Assessment and Planning Tool for Federally Conducted and Federally Assisted Programs“. Federal Coordination and Compliance Section Civil Rights Division.
Video by Paul Cushing and the Office of Civil Rights