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Song Xie left a Houston hospital a few days after Christmas 2015. He had a stroke less than a week later caused, he says, by inadequate discharge instructions.
The instructions were written in English—a language the son providing Song Xie’s post-discharge care couldn’t read, he says. Song Xie sued Memorial Hermann Health System in a Texas state court, saying the hospital violated the Affordable Care Act’s prohibition on national origin discrimination when it didn’t translate the instructions into the son’s native language.
Providers should be prepared for this new type of litigation, which could cost them hundreds of thousands of dollars in fines and civil damages. About 20 million people in the U.S. don’t speak or understand much English, according to government data. An Associated Press-NORC Center for Public Affairs Research survey released in late July found that nearly six out of 10 Hispanic adults, for example, have difficulty communicating with health-care providers.
The ACA’s Section 1557 bars providers from discriminating against people on any basis prohibited by federal law, including national origin. A failure to address language barriers is a form of such discrimination.
Song Xie’s suit appears to be the only Section 1557 language barrier case against a provider so far, according to two attorneys who counsel hospitals and health systems on compliance matters. It may be only the tip of the iceberg.
There might be other cases involving patients with limited English proficiency (LEP) that settled before a complaint was filed, Toby K.L. Morgan, an attorney and director of compliance at Atlanta’s Emory Healthcare, told Bloomberg Law. She and Andrew Stevens, a health-care litigation associate at Atlanta’s Arnall Golden Gregory LLP, predict there will be more.
Section 1557 is relatively new, Morgan said. Many people aren’t yet aware the law gives them a right to sue providers. This will become a “more significant cause of action over time,” she said.
Song Xie’s lawsuit still has a long way to go. Memorial Hermann Aug. 14 asked the court to dismiss his claims, based on Texas medical malpractice pleading rules. Song Xie’s attorney, Marc Bozeman, of the Bozeman Law Firm in Houston, told Bloomberg Law he will argue in a response due Sept. 11 that those rules don’t apply to the Section 1557 claim.
Memorial Hermann’s attorney, Frank N. Luccia, of Luccia + Evans, Houston, declined to comment.
Section 1557 is “a work-around” for Title VI of the Civil Rights Act of 1964, Stevens told Bloomberg Law. Title VI forbids national origin discrimination, and is enforced by the Health and Human Services Department’s Office for Civil Rights.
Individual remedies under Title VI, however, are limited. LEP patients can sue providers only for intentional discrimination.
Section 1557 allows LEP patients to sue providers for unintentional, or “disparate impact,” discrimination, the HHS says. That is, a seemingly benign policy that has a greater impact on one group, could be unlawful.
All but one court, so far, has followed the HHS’s interpretation of Section 1557 in the context of sex discrimination claims, Stevens said.
Providers can review legal requirements for effectively communicating with deaf patients for guidance on how to accommodate LEP patients. The two concerns are “very similar in nature,” Morgan said.
Deaf patients’ rights are set out in the Americans With Disabilities Act and the Rehabilitation Act. The HHS OCR has fined providers between $20,000 and $200,000 for violations, Morgan said. Providers can expect similar fines for failing to provide LEP patients with translators or interpreters, she said.
Private plaintiffs normally seek an order requiring providers to stop discriminating and adopt effective communications policies. Damages are available when a plaintiff proves a provider was deliberately indifferent to his or her needs. LEP patients’ remedies likely will be similar, Stevens said.
Medical errors attributable to language barriers pose a more expensive threat, he said.
Providers can try to avoid costly litigation by complying with federal requirements for LEP patients. The HHS’s guidance on the issue is very specific.
Interpreters must be available for almost every interaction with LEP patients, except in emergencies, and must be “qualified” medical interpreters, Morgan said. Clinical personnel, who speak a patient’s language and think they don’t need an interpreter, could be a problem, she said.
Providers must accommodate all languages, Morgan said. The HHS has identified the 10 to 15 most popular languages spoken in the U.S., and has guidelines for determining the most frequently spoken languages in a provider’s geographic area, she said.
Interpreting services are expensive, so it probably pays to have full-time staff interpreters for the most popular languages, Morgan said. For less-commonly spoken languages, providers can use video or telephonic interpreting services, she said.
All written communications—informed consent forms, discharge instructions, and lab test results, for example—also must be translated into patients’ native languages. This was the danger area for Memorial Hermann, which is alleged to have sent Song Xie home with discharge instructions written only in English.
Creating an “action plan” to address LEP concerns is a good start for ensuring compliance with federal laws, Stevens said. Morgan also suggested providers appoint Section 1557 “coordinators” to develop policies and practices, assess staff capabilities, train and educate staff, and ensure important documents are translated.
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