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language access

Pennsylvania man challenges organizations to spend the money needed for language access

A Harrisburg (PA) man is calling on all organizations to accommodate Spanish speaking patients following his terrified mother’s 2020 experience at a local hospital.

Although media reported that the hospital, UPMC Pinnacle Osteopathic, had in-house language assistance capabilities, they were not used initially for his mother.

The good intentions of having systems in place mean nothing when they are not provided to enable language accessible communications with limited English proficient people as federal law requires. According to WHTM, the nurse who attended to Nilda Fernandez “wasn’t aware” of the available language services.

AS WHTM reported on May 1:

“George Fernandez has been his mom, Nilda’s, interpreter since he was 11. He said it’s his joy, and under normal circumstances, he could lend his language skills no problem, but that wasn’t an option at UPMC Pinnacle Osteopathic earlier this week due to coronavirus visitor limitations.

I witnessed a nurse screaming at my mom — screaming — saying, ‘sit down,’ Fernandez said.

Fernandez started recording himself minutes after his mother came running out of UPMC Pinnacle Osteopathic shaking and crying. She was admitted for chest pains, and it was determined that she needed further care. They gave her an x-ray without explaining in Spanish what was happening.

It was never communicated to her that she was going to need an x-ray. So, automatically in her mind she thought, ‘oh my gosh. I’m sick. I have COVID. I’m being tested for COVID,” Fernandez said.

Fernandez had to usher her back inside, and that’s when he says he heard a staff member yelling at her in English — a language she doesn’t understand.

Translation software is available at the hospital, but Fernandez said his mother’s nurse wasn’t aware. He has a friend that works at the hospital and it took a phone call to straighten it out.

If you don’t ask a patient if you’re allergic to something or if you don’t perform the instructions right before your medical examine, that could cost that person’s life, Fernandez said.”

UPMC’s Response:

In a post-incident statement, UPMC responded to what the Fernandez family experienced:

“Members of our leadership team have been communicating with this patient’s family to provide information and clarify the services that are available. We are committed to providing the best possible interpretation services for our patients and families and ensuring we are in compliance with all state and federal guidelines for maintaining patient and staff safety in our facilities during the COVID crisis.

During the COVID-19 emergency, interpretation services remain an important priority for UPMC. In-person interpreters may not be available as we support social distancing. Additionally, to protect the safety of all our patients and staff, UPMC has visitor restrictions in place. These restrictions are consistent with policies that have been implemented in inpatient settings across the U.S…”

Fortunately, UPMC did remedy what had occurred. But George Fernandez does not believe this is enough.

As WHTM reported:

“They did a phenomenal job in getting back up from their mistake, and my mom is now on her way to recovery,” Fernandez said.

He hopes the incident will spark a different kind of recovery.

My mother was the chosen one to bring this to light one more time, because this has happened to thousands of Latinos in Central Pa,” Fernandez said.

The Importance of Language Access:

Fernandez said the solution is for all companies — across the board — to spend the money needed to level the language playing field. I encourage top level executives in health care and social human services to really walk their talk and put their money where their mouth is, Fernandez said.”

In any healthcare situation, accurate communication is essential, especially so during our pandemic. The highly infectious and potentially fatal coronavirus and its ever increasing symptomology confer added urgency to the essential communication axiom and legal mandate of effective communications with limited English proficient people as well as people with communication disabilities under federal law.

Indeed, according to U.S. Health and Human Services’ March 28, 2020 Guidance:

“In this time of emergency, the laudable goal of providing care quickly and efficiently must be guided by the fundamental principles of fairness, equality, and compassion that animate our civil rights laws.  This is particularly true with respect to the treatment of persons with disabilities during medical emergencies as they possess the same dignity and worth as everyone else. 

Our civil rights laws protect the equal dignity of every human life from ruthless utilitarianism,” said Roger Severino, OCR Director.  “HHS is committed to leaving no one behind during an emergency, and helping health care providers meet that goal. Persons with disabilities, with limited English skills, and older persons should not be put at the end of the line for health care during emergencies, Severino added.

However, for staff to use legally compliant language communication modalities, such as qualified in-person interpreters and translators, Video Remote Interpreting, and telephonic interpreting, as legally appropriate and required, staff must be well-trained about the availability and use of the various modalities. Evidently, in the Fernandez’s situation, staff training and understanding of legal requirements were wanting, as witnessed by the nurse’s not being “aware” of how to communicate effectively with Nilda Fernandez.

Title VI and Legal Requirements:

It is well-recognized, as reported by May 4 by WUKY, that “experts say miscommunication is the leading cause of medical errors.” Multiple federal agencies, including the Department of Justice, have been unequivocal about the ongoing legal requirements during an emergency and the critical importance of being able to communicate with ALL people, regardless of language or disability.

Referring to Title VI of the 1964 Civil Rights Act, one of the laws prohibiting language-based and national origin discrimination, the agencies have important legal guidance for UPMC, all health care providers, and other organizations to implement during the pandemic emergency. They state:

“Title VI and its implementing regulations obligate recipients of federal financial assistance to ensure nondiscrimination in federally-assisted emergency preparedness, response, mitigation, and recovery programs and activities.  All recipients must comply with Title VI, as well as other antidiscrimination laws, at all times including during emergencies.

… Title VI’s plain text and agency regulations clarify that discrimination based on race, color, or national origin (including limited English proficiency) is prohibited.  Recipients of federal financial assistance are also prohibited from implementing facially-neutral policies and practices that have a disproportionate impact on protected groups.  Additionally, Title VI requires recipients to ensure that LEP persons have meaningful access to programs or activities, benefits, services, and vital information.

The prohibition against discrimination on the basis of race, color, and national origin can never be waived. 

Recipients of federal financial assistance engaged in emergency management activities, as well as recipients that provide emergency-related services, such as health providers and law enforcement agencies, must comply with Title VI at all times.  In fact, complying with these requirements becomes even more important during emergencies and disasters in order to ensure that no one is unjustly denied the services and support they need during times of crisis, when their physical safety or well-being are often at greatest risk, and when many of the resources they might otherwise have drawn upon for support may not be available.  Proper planning to comply with Title VI requirements avoids complications imposed by the exigencies of emergencies and disasters. “

© Bruce L. Adelson 2020. All Rights Reserved The material herein is educational and informational only.  No legal advice is intended or conveyed.

Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise.  Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney.  Mr. Adelson is a Department of Family Medicine faculty member at Georgetown University School of Medicine where he teaches organizational culture, implicit bias, cultural and civil rights awareness.

Mr. Adelson’s blogs are a Bromberg exclusive



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