“No person in the United States shall, on 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 assistance.” Title VI of the Civil Rights Act of 1964
“Only in the United States would we allow people to migrate to our country, not require them to learn English, and then require healthcare providers to not only treat the patients (in some cases with no guarantee of payment) but also to pay for the cost of the medical interpreters needed to treat those patients.” – An anonymous physician’s complaint
This sounds harsh, but this is the reality for healthcare providers in the United States today.
It doesn’t matter the size of the organization; whether it’s a huge metropolitan hospital system with lots of wealthy donors or a tiny podiatrist’s clinic, every provider is shouldered with the responsibility of paying for medical interpretation for patients.
Title VI of the Civil Rights Act of 1964 is the anti-discrimination clause for Federal programs, and at the time it was primarily aimed at eliminating race discrimination, particularly against African-Americans.
Since the 1960’s, the definition of several terms in Title VI have been expanded through additional statutes and from court cases. “Discrimination on the basis of national origin” has now been expanded to include a person’s ability to communicate in the English language by the Department of Health and Human Services in 1980.
“Receiving federal assistance” no longer means getting a subsidy or grant from the Federal government, or even a favorable tax credit or exemption. It has been further expanded to include the receipt of Medicare and Medicaid payments, even though Medicare and Medicaid payments are payments for services performed – a doctor would treat a Medicare patient, bill Medicare, and get paid by Medicare for that service.
The waters were further muddied by the Americans with Disabilities Act of 1990, a gift to the American people from President George H.W. Bush, which requires employers and places open to the public (including health care providers) to make “reasonable accommodations,” albeit without defining “reasonable.”
Finally, the Affordable Care Act of 2010 (ACA), the crowning achievement of President Obama, strengthens the regulatory requirements for patients with limited English proficiency (LEP) who require the services of an interpreter (covered institutions must take “reasonable steps to provide meaningful access” to LEP patients who are served or likely to be served).
So, a hospital, or doctor, has to provide an interpreter for a patient who doesn’t speak English or is hearing impaired.
OK. But who pays for it? Short answer: the healthcare provider.
While the Civil Rights Act and Americans with Disabilities Act do not specifically state that the provider gets to foot the bill, the ACA has a lovely provision in section 1557 which grants patients a private cause to sue for discrimination when language services are not provided.
In addition, each state has adopted its own language clarifying the issue; they pretty much agree that the provider bears the responsibility for the cost, even if the cost for language services exceeds the reimbursement the provider would receive from the patient’s insurance for seeing the patient.
So what’s a provider to do? Legally, there’s not much they can do.
A provider who refuses to provide language services or who refuses to service patients on the basis of language can face a lawsuit for discrimination under the Civil Rights Act and/or the ADA and/or the ACA.
In addition, those providers who try to recoup the cost of the language services from the patients also face trouble.
Some states have a provision in their Medicaid programs that pay for a portion or sometimes all of the cost of language services. Those are the lucky ones.
There are only two realistic options to change this: challenge the laws in court, which is an expensive option and only feasible where there are reasonable judges (so the area of jurisdiction for the Ninth Circuit Court of Appeals would be out) or change the legislation.
While all of the Republicans were running for election and re-election to Congress throughout the Obama Presidency on the issue of repealing and replacing Obamacare (which, as we’ve seen, gives more weight to the burden of the healthcare providers), those same Republicans have been strangely unable to pass any sort of meaningful healthcare legislation now that they are actually in the majority.
Maybe this is an issue that a strong Libertarian running for office can take up?
* Christine Luc is a chiropractor, wife, mother of two children under age 3, and small business owner (so she doesn’t sleep much). This makes her cranky and partial to conspiracy theories, especially ones about big government. For more conspiracy theories and American history factoids, please check out my Facebook page entitled “The Classical Liberal.”