The U.S. Constitution and Public Health: Language Access as a Civil Right in Health Care
Charlene Pope, BSN, CNM, MPH, PhD
Assistant Professor, College of Nursing
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As an issue that benefits from its relation to Constitutional Law, language access constitutes a dimension of health care access and a concern for health service delivery and public health. Currently, 11.5% of people in the United States are foreign-born, of whom over half come from Latin America, making Spanish the most common second language (Schmidley, 2003). According to the U.S. Census Bureau nearly 18% (47 million) of people in the U.S. speak a language other than English at home. Of the estimated 300 or more languages spoken in the United States, over half of those with English as a second language (ESL) speak Spanish (28 million) with the next most frequent group speaking Asian and Pacific Island languages (7 million) (Shin and Bruno, 2003).
Civil Rights and Language Access
Amendment XIV of the US Constitution is used as the basis for protection for citizens to due process and equal rights under the law. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html
As the major reform to protect civil rights since Reconstruction, the Civil Rights Act of 1964 extended the power of the Fourteenth Amendment under the Constitution. Title VI of the Civil Rights Act denies institutions and individuals the right to discriminate on the basis of race, color, religion, or place of national origin. For health services specifically, Title VI denies the right to deny services based on language if health institutions accept federal money for public services, establishing a right to language access.
Extending Language Access
Language access is defined as meaningful access to health services, language assistance during health encounters, and equity in care for LEP patients (Pope, 2004).
The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974) held that the protection extended regarding Section 602 of the Civil Rights Act that forbid institutions or recipients of federal aid from administrative measures denying people access based on race, religion or national origin also applied to limited English proficiency (LEP) as a characteristic associated with national origin. In 2001, President William Clinton issued Executive Order 13166: Improving Access to Services for Persons with Limited English Proficiency http://www.usdoj.gov/crt/cor/13166.htm referred to as the LEP Executive Order that clarifies obligations under the protection of Title VI of the Civil Rights Act for persons with Limited English Proficiency (LEP) in health care institutions. Federal agencies and those services and institutions accepting federal monies are mandated to provide meaningful access to care for those who are LEP, as stipulated in the Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons.
To assist health providers and health service institutions, the Office of Minority Health convened a national panel that issued the National Standards for Culturally and Linguistically Appropriate Services in Healthcare (referred to as the CLAS standards) in 2001. In response to the Constitution and Civil Rights law, the recommendations define culturally and linguistically appropriate services as: Cultural and linguistic competence is the ability of health care providers and health care organizations to understand and respond effectively to the cultural and linguistic needs brought by patients to the health care encounter. http://www.omhrc.gov/clas/frclas2.htm
The Medical University of South Carolina (MUSC) began its response to LEP language access with a phone list of voluntary interpreters from the hospital staff and community and institutional access to the Language Line, phone interpretation service. When the Hispanic population in South Carolina tripled from 1990-2000, MUSC organized an Office of Medical Interpretation with a staff of 10 certified medical interpreters, supplemental use of the Language Line, a policy requiring qualified interpreters for medical encounters, and a Task Force to continue the promotion of culturally and linguistically appropriate services. All new MUSC/MUH employees receive an orientation on cultural competence, language access, and strategies to work effectively with medical interpreters and LEP patients and families. Institutions that choose not to cooperate with the law are subject to investigation and fines from the Office of Civil Rights (In South Carolina, Region IV, Atlanta, GA office).
As a member of the MUSC/MUH Cultural Diversity and Health Disparity Task Force, the MUSC College of Nursing applied for and received funding (Duke Endowment & HRSA) to continue improvements to curriculum and MUSC community services under the Hispanic Health Initiative to promote the CLAS standards and language access. The preparation of culturally and linguistically effective nurses who appreciate the gifts of the Constitution provides patients with care that meets the letter and spirit of the law.
Guzman, B. (2001). The Hispanic Population: Census 2000 Brief. Washington, DC: U.S. Census Bureau. Retrieved December 3, 2003 from http://www.census.gov/prod/2001pubs/c2kbr01-3.pdf
Office of Minority Health. (2001). National Standards for Culturally and Linguistically Appropriate Services in Health Care (CLAS). Washington, DC: U.S. Department of Health and Human Services. Also available from the Office of Minority Health.
Pope, C. (2004). Language access services in nursing. Monograph for the Office of Minority Health/AIR.
Schmidley, D. (2003). Foreign-born population in the United States: March, 2002. Current Population Reports, P20-539. Washington, DC: U.S. Census Bureau. Retrieved from the Internet (3/25/04): http://www.census.gov/prod/2003pubs/p20-539.pdf