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Title VI Of The Civil Rights Act Of 1964: Limited English Proficient (“LEP”) Patients and Obtaining Proper Consent

For Immediate Release: August 21, 2015

Contact: Craig M. Sandberg, 312.263.7249, craig@muslin-sandberg.com

Chicago, IL – In recent years, trial courts across the country have been asked to clarify whether, under both state and federal law, English-language consent forms alone may bind the individual who signs them. Or, it is merely a rebuttable presumption. For instance, does the signature of a Limited English Proficient (“LEP”) patient carry the same weight as someone with Engligh-languge proficiency? Does the calculus change when a hospital does not provide provide a Spanish-speaking individual an interpreter or a translated form before obtaining the patient’s signature on a consent form. As a practical matter, most individuals believe that the document they are signing is related to their consent for the proposed medical procedure and not, for instance, to any notice related to the employment status of the health care staff to the hospital, i.e., “I understand that all physicians providing services to me, including emergency room physicians, radiologists, pathologists, anesthesiologists, my attending physician and all physician consultants are independent medical staff and not employees or agents of [the hospital].” “Notice in its legal sense is information concerning a fact, actually communicated to a person by an authorized person, or actually derived by him from a proper source, and is regarded in law as ‘actual’ when the person sought to be affected by it knows thereby of the existence of the particular fact in question.” Black’s Law Dictionary 1061 (6th ed. 1990).

Notice, in the context of physican-patient relationship, is important because, as the Illinois Supreme Court noted over 20 years ago in Gilbert v. Sycamore Mun. Hosp., 156 Ill. 2d 511 (1993), there is an important “reality” related to the “business of a modern hospital.” Gilbert, 156 Ill. 2d at 520; see also York v. Rush-Presbyterian-St. Luke’s Med. Ctr., 222 Ill. 2d 147, 854 N.E.2d 635 (2006). “‘[H]ospitals increasingly hold themselves out to the public in expensive advertising campaigns as offering and rendering quality health services…Modern hospitals have spent billions of dollars marketing themselves, nurturing the image with the consuming public that they are full-care modern health facilities. All of these expenditures have but one purpose: to persuade those in need of medical services to obtain those services at a specific hospital. In essence, hospitals have become big business, competing with each other for health care dollars.’” Gilbert, 156 Ill.2d at 520. (quoting Kashishian v. Port, 481 N.W.2d 277, 282 (1992)).

Federal anti-discrimination laws require that health care facilities receiving federal funds provide professional interpretation services for their Limited English Proficient patients. Colwell v. Dep’t of Health and Human Serv., 558 F.3d 1112 (9th Cir. 2009). In Colwell, the plaintiffs-appellants filed “a pre-enforcement challenge to the Policy Guidance issued by the Department of Health and Human Services (“HHS”) in August 2003 (“2003 Policy Guidance” or “Policy Guidance”).” Colwell, 558 F.3d at 1116. “The stated purpose of the Policy Guidance is to clarify the legal obligation of recipients of federal funds to provide meaningful access for individuals with limited English proficiency (‘LEP’) to programs supported by those funds.” Colwell, 558 F.3d at 1116. LEP refers to individuals whose primary language is not English and who have limited ability to read, write, speak, and understand English.

Section 601 of Title VI of the Civil Rights Act of 1964 provides that “[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.” 42 U.S.C. § 2000d. Section 602 authorizes and directs federal agencies that are empowered to extend federal financial assistance to any program or activity “to effectuate the provisions of [section 601]…by issuing rules, regulations, or orders of general applicability.” 42 U.S.C. § 2000d-1.

“In 2000, President Clinton issued an Executive Order ‘to improve access to federally conducted and federally assisted programs and activities for persons who, as a result of national origin, are limited in their English proficiency (LEP).’ Exec. Order No. 13,166, 65 Fed.Reg. 50,121 (Aug. 11, 2000).” Colwell, 558 F.3d at 1117. The 2003 Guidance was published in order effectuate the Executive Order and federal law. Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 68 Fed.Reg. 47,311, 47,312 (Aug. 8, 2003). “The stated purpose of the 2003 Policy Guidance ‘is to assist recipients in fulfilling their responsibilities to provide meaningful access to LEP persons under existing law’ and to ‘clarif[y] existing legal requirements for LEP persons by providing a description of the factors recipients should consider in fulfilling their responsibilities to LEP persons.’” Colwell, 558 F.3d at 1118 (citing id. at 47,313). The non-discrimination requirements of Title VI may be enforced either through termination of federal financial assistance or “by any other means authorized by law.” 42 U.S.C. § 2000d-1.

The classification of a document as “vital” depends upon the importance of the program, information, encounter, or service involved, and the consequence to the LEP person if the information in question is not provided accurately and in a timely manner. This comes from a memorandum from the Joint Commission (January 2008) indicating that “consent” forms and “notices of rights” constitute “vital” materials needing interpretation. According to the National Council on Interpreting in Health Care (NCIHC), quality medical interpretation calls for accuracy, confidentiality, impartiality, respect, cultural awareness, role boundaries, professionalism, professional development, and advocacy, goals that are likely to remain unmet when relying on lay volunteers and untrained staff. National Standards of Practice for Interpreters in Health Care (“NCIHC”), National Council on Interpreting in Health Care 2005. “The Office for Civil Rights (OCR) issued a policy guidance for Title VI compliance in 2004 that states LEP persons must be notified of the availability of free interpreting services, and the services must not require friends or family to provide interpretation. Interpreters must be competent in medical terminology and understand issues of confidentiality and impartiality.” Id.

So, how does this apply in the real world? For hospitals, they should re-familiarize themselves with Title VI of the Civil Rights Act of 1964 (codified as amended at 42 U.S.C. § 2000d et seq.) and its regulations, 34 C.F.R. § 100.3 et seq. If an institution receiving federal funds is found in violation of Title VI, that institution can lose its federal funding. Loss of funding is not an ultimate aim, but, rather, a correction of systemic injustice. For patients, because institutions receiving federal funds must comply with Title VI, in the context of consent forms, it should be argued that the hospital has an affirmative obligation (i.e., duty) to provide interpreter services to patients to ensure that the consent that is obtained is both “knowing” and “voluntary”.

 A person who believes that he/she has been discriminated against because of race, color or national origin may file a complaint with Office of Civil Rights ("OCR") for the U.S. Department of Health & Human Services ("HHS") within 180 days of the date on which the discrimination took place. The State of Illinois is located in OCR Regional Office (Region V) in Chicago, Illinois. More information can be found at the OCR HHS website.

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