While OCR has the power to suspend federal funding to facilities that violate Title VI, federal statutes and regulations require OCR to settle complaints whenever possible and these settlements have sometimes produced meager and disappointing results for complainants. Plaintiffs also may bring Title VI claims directly in federal court. Title VI litigation offers plaintiffs the advantage of control over their own cases. While OCR maintains control over administrative investigations of Title VI complaints, Title VI plaintiffs can present their own cases as they see fit. Plaintiffs can obtain discovery of facts they may not be able to uncover in an administrative proceeding and have more control over the pace of the case.
Litigation has disadvantages as well.
To date, no reported decision holds that failure to provide language access in health care constitutes discrimination based on race or national origin. OCR has twice drafted, but never implemented, regulations that would have made this point clear. Advocates mounting a challenge on this basis would have to urge the court to extend Title VI in a new context, a potentially difficult prospect in these conservative times. A number of Medicaid provisions require state Medicaid agencies and providers to overcome language barriers. At least one reported decision has construed similar state law provisions to require the use of interpreters.