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A Houston man has sued a major Texas health system, alleging they mishandled his discharge. In doing so, he may have become the first person in the nation to pursue damages against a provider using the language access provision of Section 1557 of the Affordable Care Act.
The patient, a Mr. Song Xie, was hospitalized on Christmas Eve of 2015 with “abdominal pain, extreme fatigue, chest pain, and other symptoms,” according to a lawsuit filed in Harris County by attorney Marc Anson Bozeman in July of 2018. Song was diagnosed with a heart condition and discharged a few days later, but was home for less than a week before suffering a stroke and readmitting.
The lawsuit alleges that Song’s stroke (and subsequent readmission) occurred because he and his son, who are not fluent in English, could not read and did not follow his in-English post-discharge instructions. He contends that the hospital violated their duty under Section 1557 to discharge him using a qualified interpreter, that they should have provided him with translated discharge instructions, and that failing to do so has a disparate impact on limited-English proficient (LEP) patients, constituting national origin discrimination.
(In non-legal terms, disparate impact occurs when an apparently neutral action disproportionately impacts a protected class, such as patients of non-US national origin.)
Prior to the Affordable Care Act, LEP patients relied on Title VI of the Civil Rights Act for their right to interpreters and translators in healthcare settings. But Title VI did not grant patients the right to sue providers for disparate impact. That changed with Section 1557, according to Health and Human Services’ Office of Civil Rights:
“OCR interprets Section 1557 as authorizing a private right of action for claims of disparate impact discrimination on the basis of any of the criteria enumerated in the legislation.”
Song’s case is scheduled to go to trial in 2019. Should the case proceed, it’s likely the hospital will need to produce records indicating whether they provided the patient in-language care and in-language discharge instructions in compliance with Section 1557. A 2016 American Hospital Association survey questioned over 4,000 hospitals and learned that only 56% offered any sort of language services – up only 2% from the 54% recorded in 2011.
This case may be the first of its kind, but Bruce Adelson, who spent six years as a trial attorney with the US Department of Justice’s Civil Rights Division, anticipates more to come:
“This case is a long time coming, two years after Section 1557’s civil rights regulations became law,” he writes. “But just as attorneys are starting to add Section 1557 claims to their disability discrimination claims, I suspect the Xie case signals the beginning of a similar coming trend in Section 1557 national origin and language-based discrimination lawsuits against health care providers.”
Toby K.L. Morgan, an attorney and director of compliance at Atlanta’s Emory Healthcare, told Bloomberg that providers looking to avoid such lawsuits should “appoint Section 1557 “coordinators” to develop policies and practices, assess staff capabilities, train and educate staff, and ensure important documents are translated.”
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