Page 28 - Mar2019_BarJournal

BarJournal HEALTH CARE LAW

JULY/AUGUST 2015
fEaTUrE Limited English Proficient Status as a

Social determinant of Health and the

Intersection with the law

BY KATHLEEN K. LASKEY-DONOVAN

he World Health Organization therapists nor interpreters available to assist Hospitals, The Legal Aid Society of
defines the “social determinants the professionals. 7 Cleveland works to alleviate the negative
of health” as “the conditions in Fortunately, there is a law that may effects of the SDOH. Medical providers
which people are born, grow, alleviate the negative effects of LEP status as refer patients with legal problems affecting
T live, work, and age.” Examples an SDOH. Pursuant to Section 601 of Title their health to the Legal Aid attorney/
1
of the social determinants of health include VI of the Civil Rights Act of 1964, 42 USC paralegal located in their clinic. Legal Aid
socioeconomic status, education, physical §2000d, no person shall “on the ground of helps patients with issues such as obtaining
environment, employment, nutrition, and race, color, or national origin, be excluded special education for children with
access to health care. It is important to from participation in, be denied the benefits disabilities, maintaining public benefits,
recognize the social determinants of health of, or be subjected to discrimination under obtaining immigration status, alleviating
(SDOH) because they lead to health inequities any program or activity receiving Federal the conditions of unhealthy housing, and
between various groups in our society. financial assistance.” The U.S. Supreme sealing criminal records.
One trait that may not be traditionally Court has interpreted the prohibition Legal Aid works to address the SDOH
thought of as being an SDOH is being against national origin discrimination to with regard to language access. Legal Aid
Limited English Proficient (LEP). Limited protect LEP individuals, and to require collaborated with the City of Cleveland to
English proficiency refers to anyone above that federal financial assistance recipients develop a Language Access Plan that provides
the age of five who reported speaking provide meaningful access to their interpretation and translation for LEP city
English less than “very well,” as classified programs. Meaningful access can require residents. Legal Aid prepares pro se notices
8
10
by the U.S. Census Bureau. Being LEP can recipients to provide oral interpretation for LEP individuals that notify the court in
2
negatively affect one’s health in a variety of services and translation of vital documents. pending cases that they require an interpreter.
ways: inability to obtain Medicaid/Medicare In 2000, President Clinton signed Legal Aid has filed administrative complaints
because of barriers in communication; Executive Order 13166, which requires against federal financial assistance recipients
inability for the LEP patient to communicate federal agencies to implement plans so that (schools, police, county public benefit offices)
with their medical providers; which can lead LEP individuals have meaningful access when they have failed to provide LEP persons
to lack of understanding of treatment plans to their services. It also requires federal with meaningful access.
and diseases, and medical error resulting agencies to ensure that the recipients of If you encounter a situation where an LEP
3
in physical harm . Pursuant to U.S. Census their financial assistance (e.g. state/local individual is not provided interpretation or
Bureau data, the LEP population in the governments, police, courts, etc.) provide translation services by a recipient of federal
United States is also less educated and is meaningful access to their programs. In financial assistance, you may wish to help
more likely to live in poverty. 4 2002, the U.S. Department of Justice released them file an administrative complaint with
LEP victims of crime also face a risk to their guidance setting out a four-factor test the appropriate federal agency who will then
health when they are unable to report crimes for recipients to utilize when considering investigate the complaint. If the entity is
to the police due to lack of interpretation whether they are providing meaningful found to have violated Title VI, the agency
services. A 2013 national survey of domestic access. The four factors are: (1) the number will work with it to become compliant. More
violence service providers found that or proportion of LEP persons eligible to be information on the administrative complaint
11
63.5% of respondents indicated that lack of served or likely to be encountered by the process go to: https://www.lep.gov/ .
language access affected immigrant victims’ program or grantee; (2) the frequency with
willingness to report domestic violence to law which LEP individuals come in contact with 1 World Health Organization, https://www.who.int/social_
enforcement either “very often” or “almost the program; (3) the nature and importance determinants/en/
2 Jie Zong and Jeanne Batalova, The Limited English Proficient
always.” 60.4% of survey respondents said of the program, activity or service provided Population in the United States, Migration Policy Institute
5
the same in human trafficking cases, as well as by the program to people’s lives; and (4) the (July 8, 2015)
9
57.9% of respondents in sexual assault cases. resources available to the recipient. 3 Alexander R. Green, MD, MPH and Chijioke Nze, Language-Based
6
Inequity in Health Care: Who is the “Poor Historian”?, AMA. J.
Therapy and counseling were also reported Through medical-legal partnerships Ethics. 2017;19(3):263-271, available at: https://journalofethics.ama-
assn.org/article/language-based-inequity-health-care-who-poor-
as resources that LEP crime victims could at the MetroHealth System, St. Vincent historian/2017-03
not access because there were no bilingual Charity Medical Center and University 4 Zong and Batalova, supra note 2.
28 | Cleveland Metropolitan Bar Journal clemetrobar.org