University of New Mexico Hospital Letter of Finding
Mr. Stephen McKernan
Vice President for Hospital Operations, UNMHSC
Chief Executive Officer, UNM Hospitals
The University of New Mexico Health Sciences Center
2211 Lomas Boulevard N.E.
Albuquerque, New Mexico 87106
Re: Investigation of Limited English Proficiency (“LEP”) Issues
Dear Mr. McKernan:
The U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR) has completed its investigation of the complaint filed against the University of New Mexico Hospital (the Hospital) which is affiliated with the University of New Mexico Health Sciences Center in Albuquerque, New Mexico. On March 6, 2006, OCR received the complaint of national origin discrimination filed by the complainant, on behalf of his mother, the affected party, who is a Limited English Proficient (“LEP”) person. Specifically, the complaint alleges that on February 14, 2006, [RECIPIENT’S NAME REDACTED], M.D. an orthopedic physician at the Hospital, failed to provide language assistance for the affected party, in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et. seq., and its implementing regulations, 45 C.F.R. Part 80 (hereinafter “Title VI”).
OCR conducted this investigation pursuant to its authority to enforce Title VI, which prohibits discrimination on the basis of race, color, or national origin by recipients of Federal financial assistance from HHS. As a recipient of HHS funds, including but not limited to Medicare Part A, Medicaid, and grants from the National Institutes of Health (NIH), the Health Resources and Services Administration (HRSA), and the Agency for Healthcare Research and Quality (AHRQ), the Hospital is subject to the requirements of Title VI.
Based on a review and analysis of the facts and the law, OCR has concluded that there is insufficient evidence that the Hospital violated Title VI in the affected party’s case. However, in response to OCR’s investigation and provision of technical assistance, the Hospital has taken a number of voluntary corrective actions to improve its language services program. The following is a report of our findings and corrective actions taken by the Hospital.
The Hospital, a 544-bed facility which operates clinics throughout the community, is the primary teaching hospital for the University of New Mexico School of Medicine. In a previous complaint filed with OCR in March 2000, the New Mexico Advocates for Children and Families (NMACF) alleged that the Hospital failed to provide language services to LEP persons, specifically those of Mexican, Cuban, Navajo, or Vietnamese national origin, to ensure effective communication. The NMACF claimed that the Hospital relied on neighbors and family members, including minor children, to interpret, and that it was difficult to obtain interpreters during evening and weekend hours. Further, the complaint alleged that patients were required to return for services when interpreters were unavailable. In some situations, discharge information and prescriptions were provided only in English and there were no signs or notices in languages other than English. The complaint also alleged that staff and providers were not properly trained on language assistance services; that male interpreters were inappropriately used with female patients; and that culturally appropriate interpreter services were rarely offered.
OCR initiated an investigation of NMACF’s complaint and found multiple examples of the Hospital’s failure to provide meaningful access to LEP persons. These findings were held in abeyance because litigation against the Hospital on these issues was pending and OCR awaited the outcome of that litigation before proceeding. After the litigation was dismissed, OCR resumed its investigation of the Hospital by consolidating NMACF’s complaint into this complaint due to the similarity of the allegations.
The affected party was scheduled for an appointment with [RECIPIENT’S NAME REDACTED] in the Orthopedic Department at 1:30 p.m. on February 14, 2006. The complainant explained to OCR that he accompanied his mother, the affected party, to her appointment to provide her with physical assistance. During the appointment, the complainant alleges that he was forced to serve as an interpreter for the affected party in order to facilitate effective communication because neither the Hospital nor [RECIPIENT’S NAME REDACTED] provided language assistance services. The complainant was previously advised by the Hospital’s appointment clerk that [RECIPIENT’S NAME REDACTED] spoke Spanish and would be able to communicate with the affected party without the use of an interpreter. The complainant alleges that during the appointment [RECIPIENT’S NAME REDACTED] spoke only in English, and he did not offer to speak in Spanish, or offer to contact a Hospital interpreter. The complainant acknowledged that he did not ask [RECIPIENT’S NAME REDACTED] to speak in Spanish nor did he request an interpreter during the appointment.
The complainant further alleges that [RECIPIENT’S NAME REDACTED] was rude to them by making statements that persons of Mexican origin, such as the complainant and the affected party, would not pay for services rendered by the Hospital; that they did not have the means to pay for services rendered; and other derogatory statements about Mexicans. The complainant claims that after the appointment he spoke with the other physician who was in the room, and she apologized for [RECIPIENT’S NAME REDACTED] conduct.
The Hospital asserts that it has taken significant steps to improve language assistance services for LEP persons, and denies the allegation that it discriminated against the affected party by failing to provide language assistance services. [RECIPIENT’S NAME REDACTED], a Professor in the Department of Orthopedics, is considered to be fluent in Spanish. According to the affected party’s medical records, the affected party came to the United States from Mexico in 2005 and she needed language assistance. During her appointment, the affected party expressed an interest in hip surgery. The medical record goes on to state:
As patient is self-pay, the cost of the operation may be limiting and burdensome for the family without some type of financial assistance. The patient’s son and the patient do say they have adequate financial reserves; however, are agreeable to investigating other options for financial assistance prior to operation.
According to the Hospital, the affected party was charged five dollars on February 14, 2006. The affected party also met with the Admitting Department for a financial review. The review showed that she did not qualify for insurance coverage by any programs and she was placed in the Hospital’s 905 self pay discount payment program for the period of October 7, 2005 through December 12, 2006. The affected party’s surgery was approved and she would have been requested to pay $25 at the time of the procedure. After the surgery was performed, the Hospital would have developed a monthly payment arrangement based on what the affected party could afford to pay for 60% of the bill. The remaining 40% of the bill would have been written off as directed in the Hospital’s Self Pay Patient Payment Policy. The Hospital provided OCR with copies of its Self Pay Patient Payment Policy, Medical Services and Financial Assistance for Non-United States Citizens (Aliens) Policy, Self Pay Collection Policy, and Language Interpreter Services Policy.
According to the Hospital, [RECIPIENT’S NAME REDACTED] scheduled the affected party for a follow-up appointment on May 16, 2006, and was prepared to do the procedure. The Hospital claims they were unaware of [RECIPIENT’S NAME REDACTED] refusing to communicate in Spanish to LEP patients or that he used other language assistance methods. Further, the Hospital’s records show that [RECIPIENT’S NAME REDACTED] saw three other LEP patients during February 7 though February 28, 2006, and the Hospital claims he would have communicated with them in Spanish to achieve effective communication. The Hospital provided statements from other staff interpreters who considered [RECIPIENT’S NAME REDACTED]’s bilingual abilities to be effective and proficient, and had on occasion observed him using these skills with his patients.
OCR’s investigation revealed that a complaint was filed with the Hospital against [RECIPIENT’S NAME REDACTED] by another Spanish-speaking patient around June 2006. Although this complaint did not claim that [RECIPIENT’S NAME REDACTED] or the Hospital denied the patient interpreter services, the patient felt that [RECIPIENT’S NAME REDACTED] was rude to her during her appointment on May 16, 2006, because she did not speak English, although she had lived in the United States for nine years. The patient also observed [RECIPIENT’S NAME REDACTED] “talking down” to another Spanish-speaking patient that was across the hall from her. [RECIPIENT’S NAME REDACTED] denied the allegations of discrimination, and claimed he ordered appropriate tests and referred the patient to a trauma specialist. The following is an excerpt from [RECIPIENT’S NAME REDACTED]’s June 30, 2006 response to this patient’s complaint:
I do not treat any patients in the way she alleges I treated her. … In the future I will go out of my way to avoid contact with patients in the General Ortho clinic, nor will I speak Spanish to them, (although I am fluent in [S]panish and as a courtesy to the patients and the hospital I often speak to them in [S]panish) [emphasis added] as it is in this clinic where I find the most unappreciative patients, ….
During this investigation, OCR learned that [RECIPIENT’S NAME REDACTED] moved out of the State of New Mexico and only practices at the Hospital one day a month to perform complex joint reconstruction surgeries. The only witness, Shannah Redmon, M.D., is the resident physician who evaluated the affected party. According to Dr. Redmon, there was a misunderstanding between RECIPIENT’S NAME REDACTED] and the complainant regarding payment issues. As she remembered it, [RECIPIENT’S NAME REDACTED] was trying to help the affected party and the complainant understand the cost of hip replacement surgery and the possible complications, which could be financially burdensome on any family. [RECIPIENT’S NAME REDACTED] strongly suggested that the affected party apply for financial assistance, and the affected party and the complainant felt that [RECIPIENT’S NAME REDACTED] was implying that they were poor Mexicans who would not be able to pay for the elective hip surgery. Dr. Redmon could not recall whether Dr. [RECIPIENT’S NAME REDACTED] spoke to the affected party and the complainant in English or Spanish. However, she noted that on other occasions, she witnessed [RECIPIENT’S NAME REDACTED] speak to patients in either English or Spanish, depending upon the patient’s preference.
Discussion and Analysis
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, 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 subjected to discrimination under any program or activity receiving Federal financial assistance.” 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.
The HHS regulations promulgated pursuant to Section 602 forbid recipients from “utiliz[ing] 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.” 45 C.F.R. 80.3(b)(2).
The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974), interpreted regulations promulgated by the former U.S. Department of Health, Education, and Welfare (HHS’s predecessor), 45 C.F.R. 80.3(b)(2), to hold that Title VI prohibits conduct that has a disproportionate effect on LEP persons because such conduct constitutes national origin discrimination. In Lau, a San Francisco school district that had 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.
In compliance with Title VI and its implementing regulations, a recipient of HHS funds must ensure – with limited exceptions – that LEP persons can effectively participate in, or benefit from, Federally-assisted programs and activities. When a recipient encounters an LEP person attempting to access its services, the recipient should make the LEP person aware that he or she is entitled to free language assistance services, which may include a qualified interpreter. A recipient may not require an LEP person to use a family member or friend as an interpreter. However, a recipient should respect an LEP person’s desire to use his or her own interpreter unless there are concerns with the interpreter’s competency, conflicts of interest, or other issues. In summary, the failure of a recipient of HHS funds to take reasonable steps to provide LEP persons with a meaningful opportunity to participate in Federally-assisted programs may constitute a violation of Title VI. See 42 U.S.C. § 2000d; 45 C.F.R. Part 80.
The complainant maintains that the affected party was not provided with effective communication services from [RECIPIENT’S NAME REDACTED] or the Hospital, and the affected party had to instead rely upon the complainant to interpret for her. The complainant states that neither he nor the affected party requested interpreter services before or during the appointment because they were informed that [RECIPIENT’S NAME REDACTED] spoke Spanish.
The Hospital maintains that it is unaware of any occasion prior to June 2006 in which Dr. [RECIPIENT’S NAME REDACTED] refused to communicate in Spanish to an LEP patient and provided statements from witnesses who verified that he had, in fact, communicated with other patients in Spanish. In addition, the sole non-party witness in this case could not verify whether [RECIPIENT’S NAME REDACTED] communicated in Spanish or English during the affected party’s appointment, but she acknowledged that there was a misunderstanding between the parties regarding the payment for medical services. OCR, therefore, has concluded that there is insufficient evidence to find that [RECIPIENT’S NAME REDACTED] did not communicate (or refused to communicate) in Spanish with the complainant or the affected party. With regard to the affected party’s payment issues, the evidence shows that the Hospital was willing to assist the affected party by implementing a payment plan and [RECIPIENT’S NAME REDACTED] was prepared to perform the procedure.
Corrective Actions Taken
In order to resolve the systemic issues found in the investigation of NMACF’s case and the complainant’s case, the Hospital provided documentation to OCR that it has taken the following voluntary corrective actions:
1. Notice of Nondiscrimination
The Hospital’s Patient Rights and Responsibilities brochure notifies patients in English, Spanish, and Vietnamese that they have the right to receive healthcare regardless of their race, color, or national origin; and that they have the right to have “interpreter services available if [they] do not understand or speak English.” UNM Hospital, Patient Rights and Responsibilities (rev. May 2009). In response to OCR’s technical assistance, the Hospital incorporated its Nondiscrimination Policy into the Patient Rights and Responsibilities Form; included provisions which prohibit discrimination on the basis of race, color, national origin, disability, and age; and added contact information for the Patient Assistance Coordinator in case patients have questions about their rights.
2. LEP Policy
The Hospital revised its Language Interpreter Services Policy, most recently in July 2009, and the policy was implemented throughout the Hospital; its off-site clinics; and in the other hospitals affiliated with the University of New Mexico Health Sciences Center. The policy provides staff with detailed procedures for assessing patients’ primary languages; informing patients of their rights to free language assistance services; obtaining on-site or contracted interpreter services; and documenting patients’ LEP information. The policy specifically addresses the use of family members or companions as interpreters. LEP persons may choose to provide their own interpreter only after they are notified of the availability of the Hospital’s free language assistance services, which includes qualified interpreters. The policy states that “Hospital staff will make a notation in the patient’s record that an offer of an interpreter was made and [if] declined [staff will] enter the name of the person serving as [an] interpreter at the patient’s request.” The policy goes on to state that “LEP patients who chose to use a family member or companion …will be informed they have the right to change their mind and request [that the] Hospital [provide an] interpreter at any subsequent time.” UNM Hospital, Language Interpreter Services Policy (rev. July 2009). The policy encourages staff to obtain a Hospital interpreter if the patient-provided interpreter is hampering effective communication between staff and the LEP person. The policy also advises staff to avoid the use of minors as interpreters.
The policy states that language services should be provided within a reasonable period of time in all circumstances when necessary to achieve effective communication and to ensure patients receive the full benefits of the Hospital’s services. The policy also includes emergency procedures, grievance procedures, staff training procedures, and procedures for monitoring the Hospital’s language services. The Hospital instituted its Interpreter Language Services Department to coordinate the overall operation of its language resources. The Department also is available to assist staff in interpreting the policy and procedures relevant to effective communication.
3. Oral Language Services (Interpreters)
The Hospital’s Language Interpreter Services Policy provides information about the Hospital’s on-site interpreter resources as well as its video and telephone interpreter services. The Interpreter Language Services Department includes Spanish, Vietnamese, and Navajo interpreters. The Hospital also has a number of qualified bilingual employee interpreters who have been tested by the American Council of the Teaching of Foreign Languages (ACTFL) Office. The qualified bilingual employee interpreters include the following: 284 Spanish; four Navajo; three Vietnamese; two Farsi and two Hindi; and one each capable of interpreting German, Mandarin, Portuguese, Romanian, Swahili, Tagalog, and Urdu. The Hospital’s policy states that only employees who have passed its language-qualifying test may interpret medical information. Interpreters may also take the “Bridging the Gap: A Medical Interpreter Training,” to improve their interpretation and communication skills. The list of on-site interpreters, which is available on the Hospital’s intranet and internet, identifies the interpreters’ name, department, languages, telephone numbers, and hours of availability. Forty Spanish interpreters; one Navajo interpreter; and one German interpreter were specifically identified as being available in the evenings. Seven Spanish interpreters were specifically identified as being available on the weekends.
To supplement the Hospital’s on-site interpreters, the Hospital has deployed video interpretation equipment for Spanish and Vietnamese speakers throughout its on-site diagnostic and inpatient units and its off-site clinics. The Hospital also contracts with Pacific Interpreters, a telephone interpretation agency, to provide medical interpretation for over 120 languages, 365 days a year, 24 hours a day. The Hospital’s policy directs staff to use the telephone interpreter service when a requested language is not available from an on-site interpreter. Staff are instructed to obtain interpreters by contacting the Interpreter Language Services Department, Pacific Interpreters, or by directly contacting the Hospital’s qualified bilingual employee interpreters.
The Hospital insists that LEP patients can be seen without delay, rescheduling, or cancellation due to its Interpreter Language Services Department, bilingual employee interpreters, and its contracted interpreter services. The Hospital also provided OCR with copies and photos of signs posted in Spanish and Vietnamese at entry points, elevators, and waiting rooms. The signs inform patients that if they need language services, they can ask and language services will be provided. The signs also notify patients that they may be eligible for financial assistance regardless of their immigration status. In addition, the Hospital provided OCR with its Spanish and Vietnamese language notification cards that are available to patients at points of entry throughout the Hospital to signify that they would like to have language services. The cards provide contact numbers for staff to obtain Hospital interpreters and telephone interpretation services.
4. Written Language Services (Translations)
The Interpreter Language Services Department translates many of the Hospital’s documents; and more complex documents are translated by Pacific Interpreters. To date, the Hospital has printed translations of over 900 forms and vital documents. Some medical discharge information is also available on the Hospital’s intranet, under the Patient and Family Education Catalog. For documents that have not been translated into a needed language, staff are directed to obtain a Hospital interpreter to provide translation services and convey the information in the document. An interpreter is also provided when an LEP person cannot read documents which have been translated into their native language.
5. Grievance Procedures
In response to OCR’s technical assistance, the Hospital developed and implemented a uniform process for receiving and responding to grievances and concerns specifically from LEP persons who need language assistance services. The procedures are included in the Hospital’s Language Interpreter Services Policy and the Patient Grievance Policy. The Hospital designated its Director of Interpreter Language Services as the Language Access Coordinator who will receive and respond to language access questions and grievances. The grievance procedures state that patients may also file a complaint with OCR in addition to their internal grievance with the Hospital.
6. Training Program
The Hospital provides all employees with information about the Hospital’s language assistance services, and the procedures for accessing those services during New Employee Orientation. There is also a yearly web-based training module for all staff, physicians, and other providers related to the Hospital’s language services. The Hospital provided OCR with copies of its Language Access PowerPoint presentations, which include information about the Interpreter Services Department; patient rights; cultural awareness of Hispanic, Navajo, and Vietnamese cultures; and effective communication through the use of interpreters. The information specifically references Title VI; procedures to obtain an interpreter; and the Hospital’s translation services. Staff members are instructed to use the Hospital’s language services, unless the patient prefers that a family member or friend interpret, and the patient has been notified of the Hospital’s offer for free language assistance services. Employees in the Clinical Operations Department, whose routine duties include interactions with the public, are provided with additional information on the language assistance services and procedures. In addition, the Hospital provided OCR with specific dates and documentation of various language access presentations, memorandums, and other training events.
7. Monitoring Program
To monitor the utilization of its languages services, the Hospital developed a self-evaluation process that measures the following criteria at least every three years: (1) the current LEP population in the service area or population affected or encountered; (2) the frequency of encounters with LEP language groups; and (3) the availability of resources, including technological advances. Additionally, the Hospital evaluates whether existing language services are meeting the needs of LEP persons; whether staff know and understand the LEP policy; and whether current services are still available and vital. The Hospital implemented its Community Interpreter Advisory Committee to improve interpreter services and monitor the effectiveness of the program, which is regularly evaluated by the Hospital’s Language Access Coordinators. These Coordinators represent various Hospital departments, and provide input, education, and information within each department regarding language access.
Based on the information obtained during this investigation, OCR found that the Hospital notified the complainant and the affected party that [RECIPIENT’S NAME REDACTED] spoke Spanish; and that there was insufficient evidence to conclude that the affected party was denied language assistance in violation of Title VI.
Nevertheless, the Hospital has taken voluntary corrective actions to improve its overall language services program. These improvements include the following: (1) a revised LEP Policy; (2) the coordination of interpreters and translations through the Interpreter Languages Services Department; (3) a mandatory staff training program on language services; (4) an interpreter qualification testing and training program; (5) the posting of signs and cards informing the public of the availability of language assistance services; (6) the translation of over 900 forms and vital documents; and (7) periodic reviews and monitoring to ensure the effectiveness of language services for LEP persons.
As a result of the corrective actions taken by the Hospital, OCR has closed this complaint as of the date of this letter. This determination applies only to the matters addressed in our investigation of this complaint, it neither covers issues or authorities not specifically addressed herein nor does it preclude future determinations of compliance that are based on subsequent investigations.
The complainant may have the right to file a civil lawsuit to remedy unlawful discrimination. The complainant may wish to consult an attorney about his or her right to pursue a private lawsuit, any applicable statute of limitations that sets the deadline or maximum period of time within which a lawsuit may be filed, and other relevant considerations.
No Federally funded recipient or public entity or person may intimidate, threaten, coerce, discriminate or retaliate against anyone because he or she has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing held in connection with a complaint under the statutes or regulations enforced by OCR. The Complainant or any other individual who believes that he or she is being subjected to such discriminatory or retaliatory conduct because of filing a complaint with OCR or participating in the resolution of a complaint, may file a complaint with OCR concerning such conduct, which shall be handled under OCR’s investigative procedures.
Under the Freedom of Information Act, OCR may be required to release this letter and other information about this case upon request by the public. In the event that OCR receives such a request, OCR will make every effort, as permitted by law, to protect information that identifies individuals or that, if released, could constitute a clearly unwarranted invasion of personal privacy. If you have questions about this matter, please contact Karmen Todd, Civil Rights Analyst, at (202) 260-0290.
Ralph D. Rouse