Making language access to health care meaningful: the need for a federal health care interpreters' statute.

• Author: DeCola, Alvaro

1. INTRODUCTION II. BACKGROUND A. Existing Federal Law 1. Title VI 2. Executive Order 13166 3. Extent of Language Assistance Obligations 4. Enforcement of Federal Regulations B. Case Law Dealing With Issue of Language Access 1. Court Imposed Limitations to Actions under Title VI C. Other Federal Statutory Language Access Provisions 1. Federal Statutes III. ARGUMENT A. The Need for a Statute 1. The Court Interpreters Act 2. Quality of Current Language Services in the Health Care Industry 3. Certification of Medical Interpreters 4. State Initiatives B. Other Legal Considerations 1. Patient Rights 2. Malpractice Actions a. Lack of Informed Consent b. Breach of Duty to Warn c. Improper Medical Care C. Current Problems Due to Lack of Federal Statutory Guidance 1. Assessing Patients' Language Proficiency and Interpreters' Competence 2. Costs and Efficiency of Using Language Services 3. Maintaining a Uniform Language D. Policy Considerations 1. A Health Care Interpreter Statute 2. Right to an Interpreter 3. Access 4. Certification 5. Statutory Framework IV. CONCLUSION I. INTRODUCTION

   In Miami, Florida, the misinterpretation of a word delays treatment for Willie Ramirez and results in the eighteen-year-old-year old living the rest of his life as a quadriplegic. (1) At a doctor's office in Merced, California, Ker Moua's son, acting as the communication conduit between the doctor and his non-English speaking mother, mistranslates the doctor's instructions with respect to the prescription medication, and she overdoses. (2) In Queens, New York, Moon Chul Sun, a Korean-speaking patient, is unable to communicate with doctors for three days until an interpreter that "spoke little Korean" tells him, while he is being discharged, that the only course of treatment was to take Tylenol. (3) He dies a month later. (4) And in Phoenix, Arizona, Griselda Zamora, a thirteen-year-old girl, dies from a ruptured appendix after being discharged from a local hospital, where she was given a pregnancy test and a diagnosis of gastritis. (5)

   These cases illustrate a significant challenge facing a health care system that is unable to comply with federal regulations designed to address the needs of patients who are unable to communicate proficiently in English. One central tenet of the delivery of high-quality health care is the physician-patient relationship. Communication is essential to the development of this relationship and the status of patients' health is directly related to it. (6) The communication gap between the increasingly language diverse population throughout the United States and their health care providers not only affects the health outcomes and lives of millions of limited English proficient (LEP) American taxpayers, but it also jeopardizes their legal rights.

   Language proficiency can be a barrier to accessing health care services and understanding and exercising important rights, such as the right of self-determination to grant or withhold informed consent. It can also pose a barrier to complying with applicable responsibilities, and understanding other information provided by federally funded facilities. 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." (7) The Supreme Court has interpreted language to be a proxy for national origin and, as a result, discrimination on the basis of language is protected under Title VI. (8) Furthermore, Executive Order 13166 requires all recipients of federal financial assistance to improve access to their LEP applicants and beneficiaries. (9) In order to improve access, recipients must implement meaningful language access to health services and programs. Current Title VI dispositions with respect to language are not strictly enforced, however, causing a hardship to those who face difficulty when seeking quality health care because of their lack of English proficiency. (10)

   Currently, some health care facilities are trying to bridge the gap in communication by utilizing bilingual staff and technologically advanced systems where "patients connect with an interpreter via two-way video" or through the telephone. (11) Other facilities hire staff interpreters or contract with language agencies and telephone language lines, where an interpreter is on the phone while the doctor examines the LEP patient. (12) While these staff members and interpreters are merely proficient in the language, there is no formal testing, licensure, or certification that guarantees a minimum level of competency and quality to ensure that health care interpreters provide the "meaningful access" required by law. (13)

   Language access barriers will not be overcome unless new statutory guidance is enacted that addresses both national standards for medical interpreters and translators, and procedures to strictly enforce current federal laws related to language access. Congress should enact a statute mandating the Department of Health and Human Services (DHHS) to establish a certification program for health care language interpreters, whereby health care facilities receiving federal funds and located in areas with a statistically significant LEP population are required to appoint or employ language interpreters who have met licensure/certification requirements guaranteed by an independent government body. The statute should be defined to create a procedural scheme where a LEP patient may enforce his or her rights under the statute in order to accomplish the intent of current language access laws.

   Physicians and other health care providers usually have no way of confirming whether the interpreter, acting as the communication conduit with LEP patients, is accurate. Therefore, training and certification by an authority qualified to test these skills provides an objective verification of competence, ensuring that all participants involved in the medical examination of a LEP patient are communicating effectively. (14) The failure to promote a policy whereby medical interpreters have to meet minimum standards of qualifications not only jeopardizes the health outcomes of LEP patients, but also prevents patients from exercising their rights and increases the potential for malpractice liability of health care facilities. Exposure to civil actions based on "improper medical care, lack of informed consent, or breach of duty to warn" increases when physician-patient communication is flawed. (15) Therefore, there are legal implications, public policy issues and financial incentives to promote the enactment of a statute that will help bridge the communication gap between health care facilities and LEP patients. Moreover, a federal health care interpreter statute would ensure compliance with the existing federal laws and provide the meaningful access intended by Congress when creating them.

   This Note will argue that there are strong public policy, and legal and equity considerations for Congress to enact a federal statute to address the inadequacies of the current policies and regulations pertaining to language access to health care. The issue has become a significant one throughout the United States, given the influx of LEP Americans navigating the health care system. Part II of this writing discusses the existing federal laws dealing with language access and the hurdles faced by LEP individuals in bringing legal action, because of existing case law on the subject. Part I1 also describes other federal statutes considering language access and how the same rationales can be applied to a statute for the provision of certified interpreters in the health care context. Part III of this Note argues that there is a lack of minimum standards of competency required from language providers that makes the quality of language services inconsistent, and often deficient, throughout the nation. Consequently, the health outcomes of LEP patients are jeopardized and the exposure to civil liability on the part of physicians and health providers is increased. Part III also argues that current practices with respect to policy, legal, and financial considerations justify the enactment of a federal statute dealing with the certification of health care interpreters. The Note provides some policy issues that may be considered in the enactment of a statute. Part IV concludes that the enactment of a federal health care interpreter statute will ensure meaningful access to health care for LEP patients and will help health care providers comply with the intent of current laws.

2. BACKGROUND

   Since the 1940s, immigration has been the major contributor to population and economic growth in the United States. (16) From 1980 to 2000, the total population of the United States grew about twenty-five percent while the number of Americans who spoke a language other than English in their homes grew by almost one hundred percent. (17) By 2005, close to 23 million people reported speaking English less than "very well." (18) As a natural consequence, hospitals and health facilities throughout the United States have experienced an influx of LEP patients. Some studies reveal that eighty percent of hospitals encounter LEP patients "at least monthly, if not weekly or daily," while forty-three percent of hospitals are reported to have daily encounters with LEP patients. (19) These figures reveal that every day, thousands of LEP patients visit health care facilities throughout the country in search of medical care.

   For a large number of these patients, explaining medical issues becomes an insurmountable task because of the challenge of communicating effectively with the providers. (20) Often, this gap in communication leads to medical complications and untreated ailments. (21) Furthermore, the legal rights and recourses...