NM center on law and poverty
 

STATE OF NEW MEXICO

IN THE SECOND JUDICIAL DISTRICT

COUNTY OF BERNALILLO

 

NEW MEXICO VOICES FOR CHILDREN,

ENLACE COMUNITARIO,

SOUTHWEST ORGANIZING PROJECT,

NATIONAL INDIAN YOUTH COUNCIL,

ALBUQUERQUE METRO NATIVE AMERICAN COALITION

 

                              PLAINTIFFS,

 

vs.                                                                                                  No.

 

THE REGENTS OF THE

UNIVERSITY OF NEW MEXICO, D/B/A

THE UNIVERSITY OF NEW MEXICO

HEALTH SCIENCES CENTER, AND

SANDRA BEGAY-CAMPBELL,

DOUGLAS BROWN,

MEL EAVES,

JACK FORTNER,

JAMES KOCH,

ROSALYN NGUYEN,

RAYMOND SANCHEZ,

IN THEIR OFFICIAL CAPACITIES

 

DEFENDANTS.

 

COMPLAINT FOR VIOLATION OF CIVIL RIGHTS

AND DECLARATORY AND INJUNCTIVE RELIEF

 

Plaintiffs for their Complaint state:

  1. This is an action for declaratory and prospective injunctive relief arising from the University of New Mexico Health Sciences Center’s (hereinafter “UNMH”) discrimination against non-English speaking residents of New Mexico, including those whose primary language is Spanish, Vietnamese, Navajo, and other languages. Defendants have failed to provide sufficient language interpreters and translation services in order to ensure effective communication and ultimately effective medical treatment, as well as to ensure that plaintiffs’ members are able to intelligently consent to medical treatment.   By failing to provide medical interpretation services, defendants are violating plaintiffs’ members’ civil rights, specifically Title VI of the Civil Rights Act, 42 U.S.C. § 2000d, 42 U.S.C. Sec. 1983, 42 U.S.C. Sec. 1981, as well as the equal protection and due process clauses of the United States Constitution, and the equal protection, due process and inherent rights clauses of the New Mexico Constitution.  This action is brought under 42 U.S.C. § 1983, 42 U.S.C. § 1981, and 42 U.S.C. § 2000d.

  2. Pursuant to N.M. Stat. Ann. § 44-6-1 to § 44-6-15 (Repl. Pampl. 1978), the New Mexico Declaratory Judgment Act, as well as 28 U.S.C. § 2201, plaintiffs seek a declaratory judgment. An actual controversy exists between the parties because, despite notice to the defendants of their legally insufficient interpretation services, defendants continue to violate plaintiffs’ members’ rights secured by the New Mexico and United States Constitutions and by federal law by failing to implement a legally sufficient interpretation and translation delivery system.  Plaintiffs seek a declaration that the manner in which the defendants are operating UNMH without legally sufficient interpretation services violates their rights under the Fourteenth Amendment to the United States Constitution, as protected by 42 U.S.C. § 1983, as well as their rights under Art. II, §§ 4 and 18 of the New Mexico Constitution. Plaintiffs also seek a declaration that defendants are violating their rights under Title VI of the Civil Rights Act through both intentional and negligent discrimination based on national origin due to their failure to provide legally sufficient interpretation services.  Finally, plaintiffs seek a declaration that defendants are violating 42 U.S.C. § 1981, because defendants are prohibiting them from receiving the full and equal benefits of the law. 

  3. Additionally, plaintiffs seek prospective injunctive relief directing the defendants to comply with their obligations under Title VI, 42 U.S.C. 2000d, as well as the due process and equal protection clauses of the state and federal constitutions, the inherent rights clause of the New Mexico Constitution, 42 U.S.C. § 1983, 42 U.S.C. § 1981, and requiring defendants to provide an interpretation and translation delivery system that meets the needs of UNMH patients and the community and complies with the law.  Specifically, plaintiffs request that UNMH at a minimum: 1) identify limited English proficient (LEP) patients; 2) develop and maintain language assistance resources sufficient to meet the identified need; 3) implement procedures for providing language assistance; 4) train personnel on these procedures; 5) inform patients of their right to interpretation services; 6) implement an accessible complaint procedure with adequate review; 7) provide signage and translation of documents; 8) recruit bi-lingual staff; and 9) develop monitoring and reporting requirements and procedures.

  4. This Court has original jurisdiction over this matter, pursuant to the N.M. Constitution, Art. VI, Section 13; N.M. Stat. Ann. § 38-3-1.1 (Cum. Supp. 1994); § 44-6-2 (Repl. Pamp. 1978) and 42 U.S.C. § 1983.  Venue is proper pursuant to NMSA § 38-3-1(G) (Cum. Supp. 1994).


PARTIES

  1. Plaintiff New Mexico Voices for Children (“Voices”) is a private, non-profit membership organization incorporated and located in Albuquerque, New Mexico. Voices is formerly known as the New Mexico Advocates for Families and Children. Voices has members who have been patients at UNMH and not received proper medical interpretation as patients at UNMH. 

  2. Plaintiff Enlace Comunitario is a private, non-profit membership organization located and incorporated in Albuquerque, New Mexico. Enlace Comunitario has members who have been patients at UNMH and not received proper medical interpretation as patients of UNMH.  

  3. Plaintiff Southwest Organizing Project (“SWOP”) is a non-profit membership organization incorporated and located in Albuquerque, New Mexico.  SWOP has members who have been patients at UNMH and not received adequate medical interpretation and translation services.

  4. Plaintiff National Indian Youth Council (“NIYC”) is an Indian civil rights organization which was founded in Gallup in 1973 and has an office in Albuquerque, New Mexico.  The NIYC has members who have been patients at UNMH and not received adequate medical interpretation and translation services.

  5. Plaintiff Albuquerque Metro Native American Coalition (“AMNAC”) is a non-profit membership organization incorporated and located in Albuquerque, New Mexico.  The AMNAC operates exclusively to improve the healthcare of all members of federally recognized tribes who reside in the Albuquerque, New Mexico metro area.  AMNAC has members who have been patients at UNMH and not received adequate medical interpretation and translation services. 

  6. Plaintiffs are members of the Community Coalition for Health Care Access, a grassroots coalition of community members and providers which had been negotiating with administrators of UNMH to attempt to improve the interpretation and translation services available at UNMH.

  7. Defendants, the Regents of the University of New Mexico, are the governing body of the University of New Mexico, which is a state educational institution named in Article 12, Section 11 of the New Mexico Constitution.  UNMH is part of the University of New Mexico and is located in Albuquerque, New Mexico.

  8. Each of the individual defendants named are Regents at the University of New Mexico.  Each is sued solely in his or her official capacity.


FACTUAL ALLEGATIONS

  1. Medical interpretation is a specific skill that requires training and education in medical terminology, language proficiency and cultural competency. In order for limited English proficient (“LEP”) patients to enjoy equal access to medical services, competent medical interpretation and translation of written materials must be provided by the health care facility.

  2. Upon information and belief, UNMH has received numerous complaints from private parties concerning their failure to provide adequate interpretation services.

  3. The Community Coalition for Health Care Access and plaintiffs have also received numerous complaints about UNMH’s interpretation services, including: 1) LEP patients who requested, but were refused interpreters; 2) children of LEP patients being asked to interpret medical conditions for their parents; 3) LEP patients who were not provided interpreters to explain their own or their children’s medical conditions; 4) LEP patients who were provided discharge and medication instructions in English, who suffered adverse medical consequences from not being able to understand the instructions.

  4. Since at least 1997, UNMH has received notice of the lack of competent and legally sufficient interpretation services for LEP patients.

  5. In July of 1997, community health workers with the Community Health Partnership (CHP) program, a project of Voices, began documenting language-based discrimination at UNMH.

  6. In the fall of 1997, CHP reported their concerns about the lack of interpretation and translation services, i.e. language discrimination, to the University Hospital Patient Ombudsman, the Office of Risk Management and the Department of Human Resources.

  7. In response, UNMH contracted with an outside agency to provide bi-lingual staff with a six hour preliminary training in medical interpretation skills.  However, no additional efforts were made by UNMH to solve the problem and reports of patients problems related to language discrimination continued unabated.

  8. In the fall of 1998, CHP and Voices, then known as New Mexico Advocates for Children and Families, again met with UNMH administrators from the Department of Ambulatory Services and provided documentation of the on-going interpreter problems, as well as the OCR Guidance Memo regarding Title VI of the 1964 Civil Rights Act and a list of recommendations for effective interpreter services. This meeting resulted in several follow up meetings.

  9. During 1998, and the first part of 1999, CHP and Voices met with administrators from Ambulatory Services, Human Resources and Risk Management, wherein administrators acknowledged that UNMH was not providing adequate and appropriate language assistance to LEP patients.

  10. In response, the six-hour training was repeated, UNMH hired eight on-call language interpreters, and Ambulatory Services agreed to reorganize patient record systems to include a file for patient language of preference.

  11. In the summer of 1999, as interpretation and translation problems continued, CHP and Voices continued to call UNMH administrators for follow-up meetings, but the administrators did not return those calls.

  12. In March of 2000, Voices, on behalf of its LEP clients, filed a discrimination complaint (hereinafter “OCR complaint”) against UNMH with the federal Department of Health and Human Services’ Office of Civil Rights. The OCR complaint alleged that the hospital discriminated against patients on the basis of national origin because people of Mexican, Vietnamese, Cuban, and Navajo descent encountered exceptional difficulties in obtaining safe, professional and effective treatment at the hospital as compared to patients proficient in the English language.

  13. As a result of the OCR complaint, in March of 2002, a team of investigators from the OCR, Region VI came to UNMH to evaluate the interpreter services.  Days before the investigators arrived, UNMH set up the Interpreter Services Program and hired a few interpreters.  This program, although an improvement, is not legally sufficient to respond to the language needs of the LEP patients in the community.

  14. The OCR complaint is still “open” and although UNMH now has an Interpreter Services Program with a few hired interpreters, serious interpretation problems continue to result in discrimination against LEP patients.

  15. In 2001, the Community Coalition for Health Care Access (the “CCHA”), a coalition of community groups and individuals, was formed. In 2002, the CCHA provided UNMH with a list of ten demands, one of which was to “ensure that adequate and professional translation and interpretation services are provided to all patients who have limited proficiency in reading and/or speaking English.”

  16. In 2003, the CCHA held two community meetings in which community members gave testimony regarding the difficulties they had accessing services at UNMH. At the June 2003 meeting, in which UNMH CEO Stephen McKernan was present, several Vietnamese-speaking individuals testified that they were not provided interpretation services for their medical appointments.

  17. In 2004, representatives of the CCHA began regular meetings with Mr. McKernan, and other administrators, regarding a variety of access to health care problems, including inadequate interpretation services.

  18. During a meeting on February 16, 2004, in response to the CCHA’s request that UNMH increase the number of qualified interpreters, Mr. McKernan acknowledged that the current translation / interpretation services at UNMH were inadequate. 

  19. On February 27, 2004, the CCHA proposed that UNMH increase the number of interpreters by adding three additional Spanish, one Vietnamese and one Navajo, in order to provide patients with greater access to qualified interpretation services.

  20. During a meeting on March 17, 2004, Mr. McKernan handed out a one-page document that he called a “gap analysis” that showed that 8439 requests for interpreters had been made in 2003, and that 1066 of those requests had not been met. The document also showed that 46,208 patients were entered into the UNMH’s master scheduling program, identified as LEP patients in need of Spanish interpretation in 2003.  At this meeting, Mr. McKernan again agreed that the interpretation services needed improvement and that further evaluation was needed.  

  21. On May 28, 2004, representatives from the CCHA met with the UNMH Administrators and the Clinical Operations Board Subcommittee on Advocacy and Community Relations to discuss, inter alia, the on-going interpretation problems. At that meeting a letter from providers at the Southeast Heights Clinic, supporting the increase in the number of full-time interpreters, was presented to the administration and members of the subcommittee. Mr. McKernan agreed to submit a request for three more Spanish interpreters to the budget committee.

  22. At the June 14, 2004 meeting, Mr. McKernan stated that three new positions for Spanish interpreters were approved and that the jobs would be posted on July 1, 2004.

  23. On July 15, 2004, the New Mexico Center on Law & Poverty sent a letter to the members of the Clinical Operations Board requesting that the Board require UNMH to conduct a comprehensive and in-depth evaluation of their interpreter services. There was no response to this letter.

  24. At the July 19, 2004 negotiation meeting, Mr. McKernan stated that no new interpreters had yet been hired.

  25. On August 6, 2004, representatives from the CCHA made a public comment at the UNMH Clinical Operations Board (“COB”) monthly meeting regarding the lack of response by the administration to the interpreter problem. CCHA pointed out that the UNMH administrative policy entitled “Language Interpreter Services” specifies that the management will conduct an evaluation every three years, but had never done one.

  26. At the August 16, 2004 negotiation meeting, Mr. McKernan stated that no new interpreters had yet been hired.

  27. On August 27, 2004, the CCHA met with the members of the COB subcommittee to discuss improving the interpretation services. At that meeting, the UNMH administration and the subcommittee agreed to form a working group to conduct an evaluation of the interpreter services, but refused to allow a community member to participate. Instead, the COB subcommittee members stated they would accept written information.

  28. At the August 27, 2004 meeting, Steve McKernan stated that only one new Spanish interpreter had been hired and that this position was a supervisory position.

  29. On October 5, 2004, the New Mexico Center on Law & Poverty provided the UNMH administration and the subcommittee with a lengthy document with attachments that outlined UNMH’s legal responsibility to the LEP community, as well as detailed examples of the components of model interpretation programs. UNMH did not respond to this document.

  30. In November 2004, the CCHA ended the negotiations with Mr. McKernan, because, inter alia, insufficient progress had been made to improve the interpretation services.

  31. On December 3, 2004, an attorney from the N.M. Center on Law and Poverty spoke at a joint Board of Bernalillo County Commissioners / Clinical Operations Board meeting about, inter alia, the inadequate interpretation services at UNMH and the resulting violations of federal law and patients’ civil rights.

  32. Despite years of notice to UNMH that the interpreter delivery system is in violation of the law, as well as multiple admissions that the system is inadequate, the language barriers persist. 

  33. Upon information and belief, currently there are only five Spanish interpreters, one half-time Navajo and one Vietnamese interpreter. These interpreters do not meet the needs of the patients, and therefore, LEP patients’ civil rights are regularly violated.  Moreover, there are no qualified interpreters available on the weekends, or outside of regular business hours during the week.  Instead, UNMH relies on untrained or inadequately trained bi-lingual staff, a telephonic interpretation system, and the help of patients’ family and friends.

  34. During 2003, approximately 46,000 new patients were identified as needing language assistance when they first encountered UNMH.  However, during that same year, only 8439 requests for interpreters were made. This means that approximately 38,000 people who were originally identified as needing an interpreter somehow went through the system without even asking for one, let alone getting one.

  35. During the first half of 2004 alone, UNMH identified approximately 27,000 people as needing language assistance.  Given the number of interpreters at UNMH, and the statistics from the year before, it is clear that most of those people received their medical care without a medical interpreter.

  36. In 2004, there were 6,492 requests for in-person interpretation and 1,521 went unmet. Although fewer requests were recorded in 2004 than in 2003, more requests for interpretation were unmet.

  37. In 2004, 7,120 calls were made to the telephone interpretation service to request Spanish interpretation.  1,098 calls were made to the telephone interpretation service to request Spanish interpretation for patients at the Women’s Care Unit alone, at a cost of $21,818.  The volume of calls for this frequently encountered language indicates a failure to provide in-person interpretation at the required population threshold.

  38. In 2004, 344 calls to the telephonic interpretation service were made requesting Vietnamese interpretation. From July to December 2004, the one Vietnamese interpreter on staff was unable to meet 155 requests for in-person interpretation.

  39. UNMH’s reliance on a telephonic interpretation system for frequently encountered languages, such as Vietnamese and Spanish, is also legally insufficient and amounts to a violation of LEP patients’ civil rights.  Telephonic interpretation should only be used as a last resort because of the privacy concerns; moreover, accurate interpretation includes clues from facial expressions and body language.  Many clinical areas are not equipped with speaker phones that would permit telephonic interpretation.  Although the telephonic system may be necessary for languages which are rare in the community, the telephonic system cannot replace the skills of an in-person medical interpreter.

  40. UNMH’s reliance on bi-lingual staff to provide interpretation services is legally insufficient and amounts to a violation of LEP patients’ civil rights.  Bi-lingual staff members have other responsibilities and cannot meet the interpretation needs of the patients.  Moreover, most of this staff receives no training in medical interpretation and, therefore, is not qualified to do medical interpretation.

  41. UNMH’s reliance on patients’ family members, friends and other patients is not only illegal, it also violates patient confidentiality. Family and friends with no medical training are unable to interpret medical terminology.  Children are being asked to interpret serious medical conditions for their parents. Moreover, privacy is violated, and family members are put in uncomfortable positions of needing to interpret extremely private or difficult news to a loved one.

  42. UNMH has an obligation to fully assess the language needs of the residents of Bernalillo County and New Mexico.  According to the 2000 Census, nearly 48,000 residents in Bernalillo County reported that they speak English “less than very well.”  Yet, the hospital has failed to study, let alone implement an interpretation delivery system that meets the needs of thousands of county residents.

  43. At all material times, the defendants acted under color of state law.

  44. Defendants have intentionally failed to provide interpretation services required by federal and state laws.

    COUNT I – VIOLATION OF TITLE VI, 42 U.S.C. § 2000d AND 42 U.S.C. § 1983

    FOR INTENTIONAL DISCRIMINATION BASED ON NATIONAL ORIGIN

     

  45. Plaintiffs incorporate by reference all preceding allegations as if fully set forth herein.

  46. Plaintiffs bring this claim against all defendants.

  47. UNMH receives federal financial assistance as defined in 45 C.F.R. 80.13(f).

  48. As a recipient of federal financial assistance from the U.S. Department of Health and Human Services, UNMH is subject in all of its programs to Title VI of the Civil Rights Act of 1964 and its implementing regulations.

  49. Title VI prohibits discrimination by a medical facility on the basis of national origin. Title VI provides: “No person in the United States shall on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. 

  50. Section 602 of the Civil Rights Act authorizes agencies “to effectuate the provisions of [Section 601]  … by issuing rules, regulations or orders of general applicability.” 42 U.S.C. § 200d-1.

  51. The Title VI regulations provide, in part, that “[a] recipient … may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin or have the effect of defeating or substantially impairing accomplishments of the objective of the program in respect to individuals of a particular race, color or national origin.” 45 C.F.R. § 80.3(b).

  52. The Title VI statute and regulations place an affirmative responsibility on federal fund recipients, such as UNMH, to adopt and implement policies and procedures that do not intentionally exclude or limit or have the effect of excluding or limiting the participation of LEP persons in their program’s benefits or activities on the basis of race, color or national origin.

  53. By continually failing to provide sufficient translation and interpretation services, including the failure to obtain informed consent in a patients’ native language, despite years of notice that a serious problem exists, UNMH intentionally discriminates against plaintiffs’ members by reason of their national origin.

  54. The policies and practices of the Regents of the University of New Mexico, acting in their official capacities and through UNMH, continue to discriminate against plaintiffs’ members based on national origin.

  55. Plaintiffs each have members who are LEP individuals who have required and/or who are likely to require medical care from UNMH in the future.  Plaintiffs’ members’ medical care will therefore be adversely affected by the failure of UNMH to provide adequate medical interpretation and translation services and plaintiffs’ members will suffer discrimination.

  56. As a result of defendants’ actions, plaintiffs are entitled to a declaratory judgment that defendants have violated Title VI and an order enjoining defendants from continuing to violate Title VI and § 1983 due to their failure to provide legally sufficient interpretation services.

    COUNT II – VIOLATION OF 42 U.S.C. § 1983: FAILURE TO PROVIDE A LEGALLY SUFFICIENT INTERPRETATION DELIVERY SYSTEM IN VIOLATION OF 42 U.S.C. 2000d.

     

  57. Plaintiffs incorporate by reference all preceding allegations as if fully set forth herein.

  58. Defendants’ violation of federal law has had a disparate impact on plaintiffs’ members, resulting in a violation of 42 U.S.C. § 1983.

  59. Title VI and its implementing regulations are intended to benefit the plaintiffs’ members.

  60. The rights established under Title VI and its implementing regulations are clear and specific and impose a binding obligation on the state.

  61. Defendants’ failure to provide adequate interpretation services violates Title VI of the Civil Rights Act, 42 U.S.C. § 2000d and its implementing regulations, 45 C.F.R. § 80 et seq., and thus constitutes a violation of 42 U.S.C. § 1983.

  62. As a result of defendants’ actions, plaintiffs are entitled to a declaratory judgment that defendants have violated 42 U.S.C. § 2000d and its implementing regulations, 45 C.F.R. § 80 et seq. and an order enjoining defendants from continuing to violate 42 U.S.C. § 2000d due to their failure to provide legally sufficient interpretation services.

     

    COUNT III -- VIOLATION OF 42 U.S.C. § 1983: DISCRIMINATION BASED ON NATIONAL ORIGIN RESULTING IN EQUAL PROTECTION VIOLATION

     

  63. Plaintiffs incorporate by reference all preceding allegations as if fully set forth herein.

  64. Defendants are violating plaintiffs’ members’ right to equal protection under the law, as guaranteed by the 14th Amendment to the United States Constitution,  in violation of  42 U.S.C. § 1983.

  65. Plaintiffs’ members are members of a suspect class because they have been discriminated against based on national origin.

  66. Defendants have discriminated against plaintiffs’ members by failing to provide language interpretation to ensure the fundamental right to emergency and medically necessary treatment.

  67. Defendants do not possess a compelling state interest that would justify discrimination against the plaintiffs’ members.

  68. Plaintiffs’ members have suffered harm, and will continue to suffer irreparable harm for which there is no adequate remedy at law as a direct and proximate result of the defendants’ violations of plaintiffs’ members’ federally guaranteed rights to receive legally sufficient interpretation services.

  69. As a result of defendants’ actions, plaintiffs are entitled to a declaratory judgment that defendants have violated plaintiffs’ members’ right to equal protection under the law, as guaranteed by the 14th Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983, and an order enjoining defendants from continuing to violate plaintiffs’ members’ right to equal protection due to their failure to provide legally sufficient interpretation services.

     

    COUNT IV – VIOLATION OF 42 U.S.C. § 1983: VIOLATION OF SUBSTANTIVE DUE PROCESS RIGHTS

     

  70. Plaintiffs incorporate by reference all preceding allegations as if fully set forth herein.

  71. Defendants are violating plaintiffs’ members’ substantive due process rights, as guaranteed by the 14th Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983.

  72. Plaintiffs’ members have failed to receive language interpretation for both emergency and medically necessary treatment. As a result, plaintiffs’ members have been denied the fundamental right to access and receive medical treatment, in violation of the due process clause.

  73. Plaintiffs’ members have suffered harm, and will continue to suffer irreparable harm for which there is no adequate remedy at law as a direct and proximate result of the defendants’ violation of plaintiffs’ members’ federally guaranteed rights to receive adequate interpretation services.

  74. As a result of defendants’ actions, plaintiffs are entitled to a declaratory judgment that defendants have violated plaintiffs’ members’ right to substantive due process under the law, as guaranteed by the 14th Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983, and an order enjoining defendants from continuing to violate plaintiffs’ members’ right to substantive due process due to their failure to provide legally sufficient interpretation services.

    COUNT V – VIOLATION OF 42 U.S.C. § 1981: VIOLATION OF PROTECTED INTEREST BASED ON NATIONAL ORIGIN
     

  75. Plaintiffs incorporate by reference all preceding allegations as if fully set forth herein.

  76. 42 U.S.C. § 1981 provides that “[a]ll persons have equal rights to make and enforce contracts … to the full and equal benefits of all laws and proceedings for the securing of persons and property as is enjoyed by white citizens.”

  77. Defendants’ actions constitute intentional discrimination based on national origin against plaintiffs’ members.  The discrimination has interfered with the plaintiffs’ members’ rights to the full and equal benefits of the laws, in violation of 42 U.S.C. § 1981.

  78. As a result of defendants’ actions, plaintiffs are entitled to a declaratory judgment that defendants have violated plaintiffs’ members’ right to the full and equal benefits of the law, in violation of 42 U.S.C. § 1981, and an order enjoining defendants from continuing to violate plaintiffs’ members’ right to the full benefits of the law due to their failure to provide legally sufficient interpretation services.

    COUNT VI - VIOLATION OF THE STATE INHERENT RIGHTS CLAUSE

     

  79. Plaintiffs incorporate by reference all preceding allegations as if fully set forth herein.

  80. Art. II, Sec. 4 of the New Mexico Constitution provides: “All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness.”

  81. By failing to provide LEP patients with adequate medical interpretation, defendants violate plaintiffs’ members’ inherent and inalienable rights of life, liberty, safety, and happiness by impermissibly infringing on plaintiffs’ members’ exercise of the pursuit of medical treatment as guaranteed by the inherent rights clause.

  82. As a result of defendants’ actions, plaintiffs are entitled to a declaratory judgment that defendants have violated the state inherent rights clause, and an order enjoining defendants from continuing to violate plaintiffs’ members’ right to life, liberty, safety and happiness due to their failure to provide legally sufficient interpretation services.

    COUNT VII – VIOLATION OF THE STATE EQUAL PROTECTION CLAUSE

     

  83. Plaintiffs incorporate by reference all preceding allegations as if fully set forth herein.

  84. Article II, Section 18 of the New Mexico Constitution provides in relevant part that no person “shall … be denied equal protection of the laws.”

  85. Plaintiffs’ members are members of a suspect class based on national origin.

  86. Defendants’ have discriminated against plaintiffs’ members by failing to provide language interpretation to ensure the fundamental right to emergency and medically necessary treatment.

  87. Defendants do not possess a compelling state interest that would justify discrimination against the plaintiffs’ members.

  88. As a result of defendants’ actions, plaintiffs are entitled to a declaratory judgment that defendants have violated plaintiffs’ members’ state equal protection rights, and an order enjoining defendants from continuing to violate plaintiffs’ members’ state equal protection rights due to their failure to provide legally sufficient interpretation services.

    COUNT VIII – VIOLATION OF STATE SUBSTANTIVE DUE PROCESS CLAUSE

     

  89. Plaintiffs incorporate by reference all preceding allegations as if fully set forth herein.

  90. Article II, Section 18 of the New Mexico Constitution provides in relevant part that “[n]o person shall be deprived of life, liberty or property without due process of law…”

  91. Plaintiffs' members have failed to receive language interpretation for both emergency and medically necessary treatment. As a result,   plaintiffs’ members have been denied the fundamental right to access and receive medical treatment, in violation of the due process clause.

  92. As a result of defendants’ actions, plaintiffs are entitled to a declaratory judgment that defendants have violated plaintiffs’ members’ state substantive due process rights, and an order enjoining defendants from continuing to violate plaintiffs’ members’ state substantive due process rights due to their failure to provide legally sufficient interpretation services. 

     

          WHEREFORE, plaintiffs respectfully request that the Court:

1.  Issue a Declaratory Judgment declaring that the defendants’ actions result in intentional discrimination against plaintiffs’ members based on national origin, violate the United States Constitution’s equal protection and due process clauses, Title VI of the Civil Rights Act, 42 U.S.C. Sections 2000d, 1983 and 1981, and the New Mexico Constitution’s inherent rights, equal protection and due process clauses; and

 2. Order immediate injunctive relief, ordering the defendants to implement a language access delivery system which shall include at a minimum:

      A. An assessment of the medical language needs of UNMH’s patients;

B.  Identification of LEP patients at registration or admission, as well as tracking to ensure    

interpretation services are available throughout all medical procedures;

C. Provision of legally sufficient language assistance services, including interpretation and translation services outside of regular business hours, the hiring of additional trained medical interpreters and contracting with trained medical interpreters for less frequently encountered languages;

D. Development of policies and procedures to ensure that LEP patients are secured language assistance services;

      E. Training and education for staff on language assistance policies and procedures;

      F. Information to patients of their language assistance rights;

      G. Complaint procedures for staff and patients, with adequate review.

      H. Sufficient foreign language signage and translation of documents;

      I. Recruitment of bi-lingual staff; and rigorous medical interpretation training of any bi-lingual staff
            before being used as a medical interpreter;

J. Ongoing monitoring of the language needs of UNMH patients to ensure that they continue to be met, with on-going input from the community and reporting to the public on the status of the language interpretation and translation delivery system at UNMH.

3.  Award reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988.

4.   Order any other such relief as the Court deems just and proper.

 

                                                                               RESPECTFULLY SUBMITTED,

 

                                                                                    Gail Evans, Legal Director

                                                                                    New Mexico Center on Law Poverty

                                                                                    Attorney for plaintiffs

                                                                              3117 Silver Ave. S.E.

                                                                              Albuquerque, New Mexico 87106

                                                                              Phone: (505) 255-2840                                                                                               Fax: (505) 255-2778

 

                                                                                                                                                                                                                       

                                                                               Maureen Sanders

                                                                               Co-legal Director of NMCLF

                                                                               Sanders & Westbrook, P.C.

                                                                               Attorney for plaintiffs

                                                                               102 Granite N.W.

                                                                               Albuquerque, New Mexico 87102

                                                                               Phone: (505) 243-2243

                                                                               Fax: (505) 243-2750

                   

                                                                                                                                                                               
                                                                               Nancy Simmons,

 Cooperating Attorney of NMCLF

 Attorney for Enlace Communitario

 122 Tulane S.E.

 Albuquerque, New Mexico 87106

 Phone: (505) 255-2575

 Fax: (505) 232-2574