Hospital Layoffs and Language Access Connection

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Physician says impending hospital layoffs will make it “difficult to take care of our non-English speaking patients” 

In Massachusetts, the federally funded Family Health Center of Worcester has laid off 35 workers, furloughed 15 and has closed branches in Southbridge and Webster. Health Center CEO Louis Brady said that the health care center, which provides medical services for low-income patients, has been dealing with financial hardships and a malware computer attack, according to the Worcester Telegram & Gazette

Brady said the furloughed workers are expected to be back on board by December 1. The Telegram & Gazette further reported that according to Brady, the health center: 

“run(s) on a number of revenue streams, including federal and state grants, with the largest portion of the budget coming from Medicaid reimbursement set by the state.” 

Laurel Balach, a doctor at the health center, said the layoff announcement left health-center staffers feeling “blindsided by the decision, which was shared with the staff on September 1.” 

Dr. Balch expressed concerns about how the center would continue to serve limited English proficient (LEP) patients while the layoffs were in place.  

“Probably the biggest hit is interpreter case managers, all of whom were furloughed. The bulk of the impact is yet to be seen but it is absolutely going to be difficult to take care of our non-English speaking patients.” 

The COVID-19 pandemic has had a significant financial impact on hospitals and health systems. According to the American Hospital Association, they have faced “massive financial losses throughout the COVID-19 pandemic and continue to experience staffing shortages, rising expenses, and supply chain issues.” 

In addition, according to Becker’s Hospital CFO Report, community hospitals across the country have faced numerous financial challenges in the past few years, a situation that the COVID pandemic did not improve.  

“Particularly hard hit are rural hospitals, with 50 facilities closing since 2010, according to the article. Community hospitals in states that have not expanded Medicaid programs are under more pressure, as they tend to have a higher proportion of Medicaid and indigent patients.” 

However, despite the financial challenges facing the Family Health Center of Worcester and other healthcare providers, a key, salient question remains unanswered: When a health care provider considers and implements layoffs and cost cutting measures, how does that provider factor in the life-saving importance of ongoing language services? 

Cost-cutting likely does not mean cutting back on hand-washing protocols, surgical gloves, medicines, and electricity to power equipment and lighting. These are all inarguably crucial for a healthcare provider to continue operations. 

But Dr. Balch raises an important consideration: “… It is absolutely going to be difficult to take care of our non-English speaking patients.” If this is true, what plans does the Worcester Family Health Center have to continue to give non-discriminatory access to patients in need of medical care who do not speak English? 

Eliminating language services or so reducing language staffing and funding are just not options for a federally funded health care provider, such as Worcester Family Health Center. If Dr. Balch is correct, how does the Center avoid significant medical malpractice, liability, and national origin discrimination problems inherent in seemingly putting language services on hold for several months?  

Language services are as vital to health care as medicines, anti-biotics, MRI machines, and sterile equipment. A health center clearly could not operate without such essential tools, the same way it cannot operate with significantly scaled back or non-existent language services that “make it difficult to take care of … non-English speaking patients.” 

As we await the U.S. Department of Health and Human Services’ new and final nondiscrimination regulations pursuant to Section 1557 of the Affordable Care Act, it may be helpful to review basic health care non-discrimination law. 

Federal law (Title VI of the 1964 Civil Rights Act and Section 1557) require federally subsidized health care providers to:

“provide meaningful access to LEP individuals in their health programs and activities. Given existing requirements to provide language assistance to LEP individuals under Title VI and Section 1557, informed by the Department’s 2003 Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons (HHS LEP Guidance). 

For LEP individuals, the lack of proficiency in English and the use of non-English languages is often tied to their national origin. It is well-established that an entity may violate Title VI and its implementing regulation by failing to take reasonable steps to provide meaningful access to LEP individuals,  See, e.g., Lau v. Nichols, 414 U.S. 563, 566 (1974). 

Taking reasonable steps to assess and meet the needs of each LEP individual eligible to be served or likely to be directly affected by the covered entity’s health program or activity is important to ensure compliance with both Title VI and 1557.  

The need for a case-by-case determination is particularly important in the area of health care. Ensuring accurate, timely, and high-quality communication within the health care context is particularly important to LEP individuals and their families, who can be put in danger by not understanding a physician or other health care provider and the health protocols those individuals may prescribe. For example, an LEP parent or guardian may leave a doctor’s office misunderstanding how to properly care for their child, putting the well-being of the child at risk due to miscommunication between the parent or guardian and the doctor regarding the health details of the child.  

Vigorous communication standards are extremely important in helping to minimize the health care risks LEP people face in the health care system, including lower rates of outpatient follow up, poor medication adherence, and a lack of understanding of diagnosis and discharge instructions. See:  U.S. Dep’t Health & Human Servs., Ctrs. for Medicare & Medicaid Servs., Guide to Preventing Readmissions Among Racially and Ethnically Diverse Medicare Beneficiaries, p. 4 (Sept. 2015), https://essentialhospitals.org/wpcontent/uploads/2016/01/OMH_Readmissions_Guide.pdf.” 

Source: U.S. Department of Health and Human Services

 

Worcester and other health care entities may well face economic and staffing challenges, supply chain delays and disruptions, and financial imperatives. As long as these entities accept, receive, and spend federal funds to provide health care programs, services, and activities, they must also provide continuing language services to “LEP individuals and their families, who can be put in danger by not understanding a physician or other health care provider and the health protocols those individuals may prescribe.”  

Language services as a line item must be treated as an essential, non-negotiable part of any budget. Although uncertain times may militate in favor of some language service reductions, they cannot be so problematic as to “make it difficult to take care of … non-English speaking patients.” If budget cuts make language services effectively unworkable, health care providers may well rue the day they put language access on the chopping block as they realize that their budget reductions were essentially, according to the well-worn axiom, “penny wise and pound foolish.” 

© Bruce L. Adelson 2022. 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 faculty member at the Georgetown University School of Medicine and University of Pittsburgh School of Law where he teaches organizational culture, implicit bias, cultural and civil rights awareness.  

Mr. Adelson’s blogs are a Bromberg exclusive. 

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