Excerpted from: Raphael Metzger, Hispanics, Health Care, and Title Vi of the Civil Rights Act of 1964, 3-WTR Kansas Journal of Law & Public Policy 31 (Winter, 1993/1994)(108 Footnotes) (Full Document)
The purpose of this article is to examine the application of Title VI of the Civil Rights Act of 1964 in the context of health care delivery to Hispanics. Demographic data on Hispanics will be reviewed first, showing that Hispanics are a large and rapidly growing part of the American population. Health data on Hispanics show that U.S. Hispanic health status is significantly poorer than that of the non-Hispanic U.S. population, and poor health status is linked to lack of access to health care services. This article will show that low rates of access to health care services are, to a significant degree, the result of barriers to access that are related to language use and culture.
Next, this article will review Title VI and the debate over program-specific or institution-wide application, the intent vs. effects test controversy, and the scope of the prohibition against national origin discrimination. It will be argued that Title VI compels linguistic and/or cultural accommodation for a significant number of Hispanic health care consumers. This article will conclude by recommending promulgation by the U.S. Department of Health and Human Services (HHS) of a specific regulation compelling accommodation of limited-English proficient persons in the delivery of health services.
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A Limited English Proficiency Regulation was developed internally at HHS in July, 1991 but never reached an official rulemaking stage. The purpose of the proposed regulation was to “ensure that persons will not be excluded from participation in, be denied the benefits of, or be subjected to discrimination in programs or activities receiving funds from HHS because their proficiency of sic English is limited.” The regulation would have prohibited specific practices resulting in a disparate impact on persons with limited-English proficiency and created affirmative obligations for covered entities, including the provision of interpreters, the posting of signs, and the provision of informational literature. The regulation provides an excellent starting point for a proposed rulemaking by HHS on linguistic accommodation. Its affirmative obligations on health care facilities is based on the number of limited-English proficient persons sharing the same language in the health care facility's beneficiary population. Thus, the regulation would obviate concerns that, under such a regulation, health care facilities would face excessive burdens by having to anticipate every possible language discordance between a health care consumer and provider.
It is known by public health experts that at the very least, linguistic accommodation, such as timely availability of a medical interpreter, is a prerequisite to increasing Hispanic access to care and making service delivery effective. While the lack of policies or procedures at a health care facility to provide timely, competent medical interpreters is facially neutral, the result has been a significant disparate impact on Hispanics — exclusion from participation in federally funded health programs and from services offered by federally funded health care providers. This exclusion is expressed in indicators of Hispanic access to care and health status that are connected to the unavailability of linguistically competent services. It is also expressed in higher health care costs that result when those who do not have adequate access to preventive care must later utilize emergency room services. While issues of Title VI enforcement must be explored to develop creative ways to ensure compliance. The implementation of a regulation by HHS specifically requiring linguistic accommodation is needed to protect the civil rights of Hispanic health care consumers and to develop further the law of national origin discrimination in the context of health care delivery to Hispanics.
Raphael Metzger is the Director of Special Initiatives for the National Coalition of Hispanic Health and Human Services Organizations (COSSMHO), a private, non-profit organization based in Washington. D.C.