Article – Discrimination Against Non-English Speaking Clients

by Abbie J. Widger

This article was written for The Nebraska Health Care Association.

The purpose of this article is to revisit the policies and procedures regarding Limited English Proficient (LEP) persons.  It is illegal to discriminate against a person based on national origin.  Yet, the definition of “national origin” is somewhat confusing in the long-term care or hospice settings.

A discussion on discrimination begins with Section 601 of Title VI of the Civil Rights Act of 1964.  This Act provides that no person shall, “On the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving federal financial assistance.”[1]    Regulations implementing the Act forbid recipients of federal financial assistance (health care facilities) from “utilizing criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, or national origin.”[2]

In 1974, the U.S. Supreme Court in Lau v. Nichols[3] held that Title VI prohibits conduct that has a disproportionate effect on LEP persons because such conduct constitutes national origin discrimination.  In the Lau case, a San Francisco School District with a significant number of non-English speaking students of Chinese origin was required to take reasonable steps to provide them with a meaningful opportunity to participate in federally funded educational programs, including instruction or participation in their native language.

The legislative history of the Civil Rights Act indicates that Title VI was enacted in part to combat discrimination in health care.[4]  The Civil Rights Act prohibits claims of intentional discrimination, and disproportionate adverse impact discrimination, which means a decision which has a disproportionate impact on a protected group.  An example of intentional discrimination is be to require all African American patients to pre-pay a procedure when that procedure is furnished to non African American patients on a bill later basis.  An example of a disproportionate adverse impact would be a hospital’s decision to place a limit on its number of Medicaid beds.[5]

In 2003, the Department of Health & Human Services Office for Civil Rights (OCR) issued “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons”[6] in response to a Presidential Executive Order.  The OCR policy guidance specifically states it is to assist recipients of federal funds (e.g., long term care facilities and hospice) in fulfilling their responsibility to provide meaningful access to limited English proficient persons under existing law.  LEP persons include those seeking health related services.  The guidance states, for example, that a long term care facility is to determine the extent of its obligation to provide LEP services by analyzing the process to ensure meaningful access to programs.  There are four factors to consider in the analysis:  (1)  the number or proportion of LEP persons eligible to be served or likely to be encountered by the program;  (2) the frequency of which LEP persons come in contact with the program; (3) the nature and importance of the program, activity or service provided by the program to people’s lives; and (4) the resources available to the recipient and the cost.

The Department of Justice website contains examples of national origin discrimination.[7]  One example is an HMO that tells a Mexican American woman with cerebral palsy to come back another day for an appointment while it provides immediate assistance to others.  Another example is a hospital near the Texas/Mexican border that dresses its security officers in uniforms to resemble INS uniforms to scare Latinos away from the emergency room, and Latino patients are told to bring their own translators before they can see a doctor.

The Office of Civil Rights has a list of stories involving persons with limited English proficiency.[8]  Examples involving hospitals include failing to provide language access services to LEP patients in the emergency department, failing to adequately inform LEP patients of medical complications, and failing to adequately explain procedures.  In all cases, these hospitals were treating large populations of LEP patients.

Language has become a topic for Ombudsmen across the nation.  A 2011 article discusses how elder care centers are trying to bridge the language gap.  One suggestion is to use the Alzheimer’s Association free 24-hour translation hotline with access to some 170 languages.  The website is http://www.alz.org/we_can_help_24_7_helpline.asp, and the number is 1-800-272-3900.

Most long term care facilities already have policies and procedures on LEP persons and the analysis that should be completed at the time of admission.  The analysis should include the four criteria listed above from the OCR guidance.  If it does not, you may consider determining whether you serve the LEP population and the meaningful way in which the LEP population is served.


[1] 42 U.S.C. § 2000d

[2] 45 C.F.R. § 80.3(b)(2)

[3] 414 U.S. 563 (1974)

[4] Civil Rights Division, US Department of Justice Title VI Legal Manual (2001) available at http://www.justice.gov/crt/about/cor/coord/vimanual.php

See also Rosenbaum, Sara and Joel Teitelbaum, Civil Rights Enforcement in the Modern Health Care System: Reinvigorating the Role of the Federal Government in the Aftermath of Alexander v. Sandoval, 3 Yale J. Health Pol’y L. & Ethics 215 (Summer 2003)

[5] Linton v. Carney, 779 F. Supp. 925 (M.D. Tenn 1990)