SFAHEYWALLENIUS MJ HealthLaw Thesis 2011

Poor health outcomes and lower quality

of care are often experienced by patients

with racial and ethnic barriers and

communication needs, particularly those

with limited-English language proficiency

and cultural issues that limit their

meaningful access to healthcare.

Provision of Language

Services in the Hospital

Setting as a Patient

Safety Imperative

Sheila Fahey-Wallenius Loyola University Chicago – School of Law Master of Jurisprudence Thesis December 2011

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Table of Contents

Provision of Language Services in the Hospital Setting as a Patient Safety Imperative

Introduction ……………………………………………………………………………………………………….. 2

Healthcare Providers’ Legal Obligations to Provide Communication Services ………… 7

Identifying & Measuring Populations in Need of Language Assistance ………… 7

Federal Laws, Regulation & Guidance ………………………………………………………… 9

State-by-State Summary of LEP-related Statutes & Regulations ………………….. 16

State of Illinois: Statutes & Regulations ……………………………………………………… 17

The Joint Commission Requirements …………………………………………………………. 19

Effective Race & Ethnicity Data Collection Remains a Challenge …………………………….. 22

The Question of “Vital” or “Non-Vital” Materials ……………………………………………………. 26

Friends & Family As Interpreters ………………………………………………………………………….. 28

Informed Consent or “Consentimiento Informado”? ………………………………………………. 29

The Bottom Line: Must Cost Be “King”? …………………………………………………………………. 31

Conclusion ………………………………………………………..………………………………………………….. 34

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Provision of Language Services in the Hospital Setting as a Patient Safety Imperative

Introduction

Poor health outcomes and lower quality of care are often experienced by patients

with racial and ethnic barriers and special communication needs, particularly those with

limited-English language proficiency and cultural issues that limit their meaningful access

to healthcare.1 Despite laws and regulations requiring the provision of adequate medical

interpretation services for these populations, unacceptable gaps remain in the manner in

which healthcare providers deliver language-appropriate care and services.2 Hospitals

need to more effectively and consistently monitor how language assistance is provided to

those patients who are entitled to such services. However, there are significant challenges

that face providers in that effort. Competing priorities and expensive initiatives – from

myriad current and pending changes to healthcare laws and regulations, the unreimbursed

and certainly not incidental cost of providing medical-related language services, and the

lack of data tracking standards for determining which patients might require language

assistance – present hurdles not easily overcome. Despite these real-world challenges and

costs that hospitals and providers incur in offering suitable language services, those costs

pale in comparison to the potential for serious patient harm or loss of human life, and are

dwarfed by the potential for the legal costs or civil monetary penalties providers would

face for failing to ensure that their limited-English proficient patients are given meaningful

access to safe and appropriate care.

1 Brian D. Smedley, et. al., (eds.) National Academies of Science, Institute of Medicine, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care, Comm. on Understanding and Eliminating Racial and Ethnic Disparities in Health Care, (2003). http://www.nap.edu/catalog/10260.html. 2 Id. at 641.

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The stakes are high. In the healthcare setting, communication barriers have

resulted in tragic consequences, as discussed in a July 2006 New England Journal of

Medicine article, describing a case in which a misinterpretation of the single word

“intoxicado,” (which means “nauseated” in Spanish, not “intoxicated” as caregivers

mistakenly believed), led to delayed diagnosis and permanent brain injury to an 18-year-

old Spanish-speaking male.3 After more than 36 hours in the hospital being worked up for

a drug overdose, the comatose patient was reevaluated and given a diagnosis of

intracerebellar hematoma with brain-stem compression and a subdural hematoma

secondary to a ruptured artery.4 A $71 million medical negligence settlement was reached

with the hospital involved in that tragedy.5 In another example, a county health

department in California paid out a $1.2 million settlement in the case of a Laotian patient

who was incarcerated, handcuffed, shackled and chained to a bed at the Fresno County Jail

for three days, after she refused medication and treatment for tuberculosis, because a non-

Laotian interpreter communicated to the patient in error that she would die from the

medication, and then erroneously communicated back to the county’s health officials that

the patient had threatened suicide if she were forced to take the medication.6

Common sense dictates that effective provider-to-patient encounters are most

successful when there is mutual trust, communication and understanding present between

them.7 If a patient is not able to adequately describe their symptoms, or the healthcare

provider cannot effectively explain to the patient information about his/her disease or

3 Glenn Flores, Language Barriers to Health Care in the United States, 355;3 N ENGL J MED. 229-231, (2006) http://www.nejm.org/doi/pdf/10.1056/NEJMp058316, citing P. Harsham, A misinterpreted word worth $71 million, 61(5) MED ECONOMICS, 289-292, (1984). 4 Id. 5 Id. 6 See Hongkham Souvannarath v. Hadden, et. al., 116 Cal. Rptr. 2d 7 (Cal. App. 4 Dist., 2002). 7 Smedley, supra note 1, at 12.

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treatment, the basic connection they need in order to develop mutual trust, communication

or understanding may be difficult, which has resulted in inadequate or even unsafe care as

the examples above suggest.8 As the Institute of Medicine (“IOM”) concluded in 2003,

“[t]he conditions in which many clinical encounters take place — characterized by high

time pressure, cognitive complexity, and pressures for cost containment — may enhance

the likelihood that these processes will result in care poorly matched to minority patients’

needs.”9

Minority populations in this country are more likely than the general population to

be uninsured, more likely to lack “meaningful access” to basic healthcare, more likely to

avoid seeking care, are overrepresented among those in publicly-funded health systems,

and have difficulty communicating effectively with their healthcare providers when they do

seek care.10 What happens when patients are unable to understand their condition or the

treatment because the words spoken to them are not understandable? Predictably,

patients might become sicker because they fail to stick to treatment regimens or know how

often to take prescribed medications or even understand when to return for follow-up

care.11 Equally predictable, it is possible that seriously ill or contagious patients could

unknowingly transmit infectious diseases to family, friends and the public-at-large if they

have not been able to understand what their provider explained to them. These are basic

8 Flores, supra, note 3. 9 Smedley, supra. note 1, at 18. 10 Institute of Medicine report brief, Unequal Treatment: What Health Care System Administrators Need to Know About Racial and Ethnic Disparities in Health Care. (March 2002). http://www.iom.edu/~/media/Files/Report%20Files/2003/Unequal-Treatment-Confronting-Racial-and-Ethnic-Disparities-in-Health-Care/DisparitiesAdmin8pg.pdf. 11 Flores, supra note 3, at 230.

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healthcare needs that can be met by providing effective language-appropriate services to

patients for whom English is not their native language.12

Certainly, there are some obvious reasons that likely contribute to the disparities in

healthcare for minority populations, from cultural and economic to language and

communication barriers. In 2002, IOM released a report brief that found that as many as

one in five Spanish-speaking people in the United States do not seek medical care due to

language barriers.13 A survey of over 4,000 limited-English proficient (“LEP”) patients who

received medical care between May and August of 2000 at 23 safety net hospitals in 16

cities found that a significant portion of respondents who needed but did not get an

interpreter reported leaving the hospital without any understanding of how to take

medications prescribed to them upon discharge.14 Nearly a decade later, in 2009, the IOM

released a follow-up report brief, concluding in part, “[c]ompelling evidence exists that

patients with limited English-language proficiency encounter significant disparities in

access to health care, decreased likelihood of having a usual source of care, increased

probability of receiving unnecessary diagnostic tests, more serious adverse outcomes from

medical errors, and drug complications.”15

12 IOM, supra note 10. 13 Institute of Medicine report brief, Unequal Treatment: Understanding Racial and Ethnic Disparities in Health Care. (March 2002). http://www.iom.edu/Reports/2002/Unequal-Treatment-Confronting-Racial-and-Ethnic-Disparities-in-Health-Care.aspx. 14 D. Andrulis, et. al., What a Difference an Interpreter Can Make, The Access Project, (April 2002). http://www.accessproject.org/adobe/what_a_difference_an_interpreter_can_make.pdf. 15 Institute of Medicine report brief, Race, Ethnicity, and Language Data: Standardization for Health Care Quality Improvement. (August 2009). http://www.iom.edu/~/media/Files/Report%20Files/2009/RaceEthnicityData/Race%20Ethnicity%20report%20brief%20FINAL%20for%20web.pdf.

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Congress enacted the Healthcare Research and Quality Act of 1999,16 requiring the

Agency for Healthcare Research and Quality (“AHRQ”), an agency of the U.S. Department of

Health and Human Services (“HHS”), to annually track and report “prevailing disparities in

health care delivery as it relates to racial factors and socioeconomic factors in priority

populations.”17 Included in the “priority populations” are those identified as LEP patients.18

AHRQ’s most recent annual National Healthcare Disparities Report was released in 2010,

reporting data on language assistance available from providers to LEP patients surveyed in

2006, determined that “[h]alf of individuals with limited-English proficiency did not have a

usual source of [language-appropriate] care.”19

Miscommunications that can and do happen in hospitals can be both costly and life-

threatening regardless of a patient’s race, ethnicity or native language, but those who

cannot understand what is communicated to them would seem to be at even greater risk of

harm.20 In fact, a 2007 study reported that serious adverse events, as reported by six

hospitals over a seven-month period in 2005, were more common in patients who did not

speak the same language as their caregivers. 21 The study, directed by The Joint

Commission (“TJC”), found that “[a]bout 49.1% of limited-English proficient patient

adverse events involved some physical harm whereas only 29.5% of adverse events for

patients who speak English resulted in physical harm. Of those adverse events resulting in

physical harm, 46.8% of the [LEP] patient adverse events had a level of harm ranging

16 Healthcare Research and Quality Act §902(g), Pub. L. 106-129, 42 U.S.C. 299 (1999). http://www.ahrq.gov/hrqa99a.htm. 17 Id. 18 Id. 19 Agency for Healthcare Research and Quality report, National Healthcare Disparities Report. AHRQ Pub. No. 10-0004, (March 2010). http://www.ahrq.gov/qual/nhdr09/nhdr09.pdf. 20 Flores, supra note 3, at 229. 21 C. Divi, et. al., Language Proficiency and Adverse Events in U.S. Hospitals: A Pilot Study. 19(2) INT J QUAL

HEALTH CARE, 60-67 (2007). http://intqhc.oxfordjournals.org/content/19/2/60.full.

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from moderate temporary harm to death.”22 (emphasis in original.) Even a native English-

speaking patient can identify with the fact that communication between healthcare

providers and patients can be difficult given the unfamiliar medical terminology involved

in conveying information and diagnoses. Add to that an inability to speak the same

language and it only stands to reason that LEP patients are more vulnerable due to

language-appropriate communication, making potential challenges to patient safety even

more critical.

Healthcare Providers’ Legal Obligations to Provide Communication Services

Identifying & Measuring Populations in Need of Language Assistance

The HHS Office for Civil Rights (“OCR”) issued detailed and significant guidance in

2003, stating that, “[i]ndividuals who do not speak English as their primary language and

who have a limited ability to read, write, speak, or understand English may be limited-

English proficient, or ‘LEP,’ and may be eligible to receive language assistance with respect

to a particular type of service, benefit, or encounter.”23 A series of federal and state laws

and regulations, as well as requirements from hospital accrediting bodies such as The Joint

Commission have been promulgated over the past decade to address concerns for patient

safety in healthcare settings related to racial, ethnic, language and communication barriers.

In 2007, following the 2005 pilot study that it commissioned,24 TJC issued its national

22 Id. 23 Office for Civil Rights, U.S. Dep’t of Health and Human Services, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited-English Proficient Persons, 68 C.F.R. § 47311-23, (2003). http://www.hhs.gov/ocr/civilrights/resources/laws/revisedlep.html. 24 Divi, supra note 21.

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report, Hospitals, Language and Culture: A Snapshot of the Nation,25 concluding that

significantly more sentinel events occur involving patients who experience communication

barriers than those who speak and understand English.26

In the United States, census figures from the year 2000, revealed that there were

nearly 23 million people considered to be limited-English proficient.27 Over time, the

percentages of the population who reported speaking English “less than very well” have

risen steadily.28 In 1980, 4.8% of the population over age five reported speaking English

“less than very well,” and by the 1990 census, that percentage had risen to 6.1%, increasing

to 8.1% in the 2000 census.29 (See also Table 1, below.) AHRQ’s 2010 report determined

that, “[a]lmost half of the people who spoke a foreign language at home reported not

speaking English very well.”30

In the state of Illinois, the number of individuals who reported speaking English

“less than very well” between the 1990 census and the 2000 census increased by 48.1%.31

In a follow-up analysis done by the Census Bureau in 2007, 21.8% of the Illinois population

age 5 years and over reported speaking a language other than English, with 9.8% speaking

25 A. Wilson-Stronks, et. al., Hospitals, Language, and Culture: A Snapshot of the Nation Exploring Cultural and Linguistic Services in the Nation’s Hospitals - A Report of Findings, The Joint Commission (2007). http://www.jointcommission.org/assets/1/6/hlc_paper.pdf. 26 Id. 27 U.S. Census Bureau, Census 2000 Brief. http://www.census.gov/prod/2003pubs/c2kbr-29.pdf. 28 Id. 29 Id. at 3. 30 AHRQ, supra note 19. 31 U.S. Census Bureau data analysis, April 2010, Detailed Languages Spoken at Home and Ability to Speak English for the Population 5 Years and Over: 2006-2009. see Table 16: Illinois. http://www.census.gov/hhes/socdemo/language/data/other/usernote.html.

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English “less than very well.”32 Population statistics clearly indicate a growing critical need

for language-appropriate communication services for the country’s LEP population.

Table 1: Census Bureau Data33

Federal Laws, Regulation & Guidance

Title VI of the Civil Rights Act of 196434 prohibits discrimination of individuals

based on “race, color, or national origin” in “any program or activity receiving federal

assistance”.35 The Rehabilitation Act of 197336 and the Americans with Disabilities Act of

199037 each mandate that both LEP and hearing-impaired patients receive the same

meaningful access to healthcare as English-speaking and hearing patients. In August of

2000, Presidential Executive Order (“EO”) 13166 was issued, requiring all federal agencies

32 U.S. Census Bureau, 2007 American Community Survey 1-Year Estimates. http://factfinder.census.gov/servlet/ADPTable?_bm=y&-qr_name=ACS_2007_1YR_G00_DP2&-geo_id=04000US17&-ds_name=ACS_2007_1YR_G00_&-_lang=en&-redoLog=false 33 Flores, G., supra note 3, at Table 1. 34 The Civil Rights Act of 1964, 42 U.S.C. §2000d, et. seq. http://www.usdoj.gov/crt/cor/coord/titlevistat.htm. 35 Id. 36 Section 504 of The Rehabilitation Act of 1973, 29 U.S.C. §794. 37 The Americans with Disabilities Act of 1990, 42 U.S.C. §12101, et. seq.

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responsible for disbursing federal monies to non-governmental recipients to publish

guidance for providing meaningful access to LEP persons in compliance with federal laws

and regulations.38 In 1974, the U.S. Supreme Court had interpreted Title VI of the Civil

Rights Act to prohibit a school district’s conduct that had a disproportionate effect on

Chinese-origin LEP students in Lau v. Nichols,39 holding that, “merely providing students

with the same facilities, textbooks, teachers, and curriculum does not translate into equal

treatment, since students unable to understand English cannot benefit from their

educational opportunity and where inability to speak and understand the English language

excludes national origin-minority group children from effective participation in the

educational program offered by a school district ” that conduct constituted discrimination

on the basis of national origin.40 (emphasis added.) Similarly, how can LEP patients

“effectively participate” in their own healthcare and medical decisions if they are unable to

understand the language spoken by their providers?

EO 13166 directed the Department of Justice (“DOJ”) to develop guidelines and

interpretation of Title VI, to be disseminated to all federal agencies in order to ensure

consistency across agencies and to recipients of federal monies, such as Medicare.41 DOJ

defined “recipients” of HHS assistance to include hospitals, health and welfare agencies at

the local, county and state levels, as well as physicians and other healthcare providers

receiving federal monies from HHS.42 HHS subsequently issued agency-specific guidance

38 Executive Order 13166. “Improving Access to Services for Persons with Limited-English Proficiency,” 65 C.F.R. §50121, (2000). http://www.usdoj.gov/crt/cor/Pubs/eolep.htm. 39 Lau v. Nichols, 414 U.S. 563 (1974). 40 Id. at 568. 41 EO 13166, supra note 38. 42 U.S. Dep’t of Justice, Enforcement of Title VI of the Civil Rights Act of 1964 - National Origin Discrimination Against Persons with Limited-English Proficiency. 65 C.F.R. §50123, (2000). http://www.justice.gov/crt/about/cor/lep/DOJFinLEPFRJun182002.php.

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pursuant to the DOJ interpretation.43 The DOJ document indicates that the LEP

population’s awareness of its rights or services available to them is the important

determinant for “meaningful access.”44

In 1999, the HHS Office of Minority Health (“OMH”) commissioned IOM to conduct a

study of the disparities in healthcare experienced by those with cultural or linguistic

barriers, and the subsequent report confirmed serious health consequences and higher

mortality rate were experienced by patients who spoke and/or understood English less

than very well.45 In March 2001, OMH issued its final report and set forth fourteen

National Standards for Culturally and Linguistically Appropriate Services in Health Care. The

standards are collectively referred to as the “CLAS” standards.46

Four of the fourteen OMH standards, numbered 4 through 7, are mandatory, while

the remaining ten standards are described as “recommended for adoption as mandates.”47

The four mandatory standards are:

Standard 4

Provide language assistance service at no cost to each patient/consumer with

limited English proficiency at all points of contact, in a timely manner during

all hours of operation.

Standard 5

Provide to patients/consumers - in their preferred language - both verbal

offers and written notices informing them of their right to receive language

assistance services.

Standard 6

Assure the competence of language assistance provided to limited English

43 DOJ interpretation of 45 C.F.R. §80.1, et. seq. http://www.hhs.gov/ocr/part80rg.html and www.usdoj.gov/crt/cor/lep/Oct26Memorandum.htm. 44 Id. 45 IOM, supra note 11. 46 Office of Minority Health, U.S. Dep’t of Health and Human Services, National Standards on Culturally and Linguistically Appropriate Services (CLAS) in Health Care. 65 C.F.R. §80865, (2000). http://www.omhrc.gov/clas. and http://www.thinkculturalhealth.org/LanguageAccessServices.asp. 47 Id.

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proficient patients/consumers by interpreters and bilingual staff. Family and

friends should not be used to provide interpretation services.

Standard 7

Make available easily understood patient-related materials and post signage

in the languages of the commonly encountered groups and/or groups

represented in the service area.48

In September 2005, OMH issued its Patient Centered Guide to Implementing

Language Access Services in Healthcare Organizations guide.49 The OMH guide contained no

new requirements or mandates, but rather focused on offering step-by-step

recommendations for the development of and enhancements to the provision of language

services in patient encounters at all access points, from appointment scheduling to

admission and registration to discharge planning, in order to comply the with various laws

and regulations.50

In August 2003, pursuant to EO 13166 and the DOJ requirements, OCR published its

LEP guidance document.51 The OCR guidance set forth the analyses HHS would utilize in

assessing a provider’s compliance, including determining whether the provider had taken

“reasonable steps to ensure meaningful access to its programs and activities” by LEP

persons, in accordance with federal law.52 The OCR guidance sets forth a four-factor

analysis that providers must undertake as a starting point for implementing policies and

programs to ensure meaningful access.53 Further, the guidance addressed the DOJ

interpretation relating to whether policies of the recipient provider may have the “effect of

48 Id. 49 Office of Minority Health, U.S. Dep’t of Health and Human Services, A Patient-Centered Guide to Implementing Language Access Services in Healthcare Organizations. (2005). http://minorityhealth.hhs.gov/Assets/pdf/Checked/HC-LSIG.pdf. 50 Id. 51 OCR, supra note 23. 52 Id. 53 Id.

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subjecting individuals to discrimination because of their race, color, or national origin.”54

DOJ’s emphasis on “effect” relates to HHS’ commencement of enforcement actions even in

cases where the “discriminatory impact of the recipient’s practices are unintentional.”55

OCR indicated in its guidance that the four factors - along with the detail regarding each

of the factors - were intended to facilitate a balance rather than “imposing an undue burden

on small business, local government, or small non-profits.”56 The four-factor analysis

incorporated into the OCR guidance, and referenced in subsequent healthcare industry

studies and requirements, includes its recommendation that providers conduct an

assessment of:

1) Number or proportion of LEP persons eligible to be served or likely to be encountered by the facility

The guidance suggests that providers carefully collect and examine its own data and that of outside sources to conduct analysis of whether minority populations who are eligible for their services may be underserved because of language barriers.

2) Frequency with which LEP individuals do, or should, come in contact with the facility’s programs and services

The guidance advises to “take care to consider whether appropriate outreach would increase frequency of contact with LEP groups, who should have access.”

3) Nature, importance and urgency of the programs or services provided to people's lives are determinative of the level and immediacy of the language services (including the consequences of inadequate interpretation/translation)

OCR recommends providers determine whether delay of access to services or information would have serious or life-threatening implications for LEP persons, and suggests providers consider conducting community surveys to assess how the LEP population rates its satisfaction with services available and offered.

4) Resources available to the facility

54 Id. 55 Id. 56 Id.

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The guidance distinguishes between providers with smaller budgets or serving an area with small numbers of LEP individuals from those with significant resources and/or for those serving a large, diverse population, cautioning that providers in the latter category “ensure that their stated resource limitations are well-substantiated” before limiting language assistance in any way.57

On the subject of providers’ available resources, the guidance stated the position

HHS would take when investigating reports and patient complaints of discrimination or

disparate impact as follows: “[c]laims of lack of resources to translate all vital documents

into dozens of languages does not relieve recipients of the obligation to translate such

documents into at least several of the more frequently-encountered languages and to set

benchmarks for continued translation services.”58 The OCR guidance also cautioned that its

coverage was to extend to all parts of a provider’s operations, including funds passed

through to sub-recipients of federal monies it receives, such as local community health

clinics and academic medical center partners.59 The OCR guidance then detailed five

elements of its assessment of whether a provider was in compliance with its guidance:

Accurate Identification of LEP individuals; Documentation of language assistance measures and plans; Training of staff regarding assessing patients experiencing communication barriers,

access to language services, and the providers policies and procedures for communication services;

Effective Notice to LEP persons of language services available, such as the posting of multi-language notices at all intake and entry points, informational brochures, minority community group outreach, multi-language automated telephone menus, non-English media publications;

Annual monitoring of data and updating its LEP plan following a review and analysis of changes in demographics, types/importance of services and programs.60

57 Id. 58 Id. 59 Id. 60 Id.

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The OCR guidance also provided additional detail specific to interpretation (oral)

and translation (written) language services, addressing competency, proficiency and

timeliness of interpretation and translation, setting forth a safe harbor for compliance, and

while OCR acknowledged that it might be cost-prohibitive to translate all of a providers’

written documents, it suggested that providers set internal benchmarks for translations of

what it defined as “vital documents.”61 On the topic of competency and timeliness of

interpretation and translation services, the guidance acknowledged that while formal

certification is not required by law, it cautioned providers that interpreters had to be

proficient in both English and the patient’s native language, and for more skilled

translators to be utilized for written translation of vital documents.62 OCR’s safe harbor

provisions indicated that it considered what it termed as “strong evidence of compliance”

with a provider’s translation obligations as “providing written translation of vital

documents for each LEP language group that constitutes the lesser of 5% or 1,000 of the

population of persons eligible to be served, or likely to be affected or encountered, or when

there are fewer than 50 persons in a language group that reaches the 5% trigger, that the

recipient provides written notice in the primary language of all such groups of the right to

receive free oral interpretation of written materials.”63

To assist providers, OCR created a self-assessment tool for them to utilize for

determining the adequacy of their communication services in accordance with the

guidance.64 The self-assessment tool addressed the elements OCR considered to be critical

61 Id. 62 Id. 63 Id. 64 Office for Civil Rights, U.S. Dep’t of Health and Human Services, Language Assistance Self-Assessment and Planning Tool for Recipients of Federal Financial Assistance. http://www.lep.gov/selfassesstool.htm.

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to a provider’s compliance with the guidance, including development of a “Language

Assistance Plan (“LAP”) for LEP beneficiaries or potential beneficiaries.”65 The tool

described the effective LAP as being:

“(1) based on sound planning;

(2) adequately supported so that implementation has a realistic chance of success;

and,

(3) periodically evaluated and revised, if necessary.”66

OCR suggested a provider establish goals such as, “basic language training for staff,

language assistance policy design and implementation, and outreach initiatives for

language isolated communities.”67 It further communicated its belief that effective

planning for the provider’s LAP required five steps:

(1) Identification of LEP persons;

(2) Specific language assistance measures to be taken;

(3) Training of its staff;

(4) Provision of adequate notice to LEP persons of the language assistance available;

and,

(5) Monitoring and regular updating of the LAP.68

State-by-State Summary of LEP-related Statutes & Regulations

For the purposes of this work, I will focus on language assistance related laws in the

state of Illinois. In 2008, the National Health Law Program produced a 50-state summary

65 Id. at Part B. 66 Id. 67 Id. 68 Id.

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publication of all statutory and regulatory requirements related to provision of healthcare

services to LEP populations, available at the National Health Law Program’s website.69

State of Illinois: Statutes & Regulations

In Illinois, state laws and regulations that govern the provision of language

assistance include the Illinois Language Assistance Services Act (“ILAS”)70 and the Illinois

Fair Patient Billing Act (“IFPB”).71 ILAS defined requirements for language assistance (both

oral interpretation and written translation) for those individuals identified as experiencing

language or communication barriers.72 It further defined the individuals who were to be

covered by ILAS as individuals having limited-English proficiency who constituted at least

5% of the patients served annually by a facility.73 Amendments to ILAS became effective on

October 11, 2007.74 The amendments required compliance in several areas that were

previously regarded as merely permissive.75 The Illinois Department of Public Health

(“IDPH”) promulgated regulations,76 setting a compliance date of April 1, 2008, requiring

providers to meet the following criteria:

Adopt and review annually a policy for provision of language assistance services to

patients or residents with language or communication barriers.

Ensure that interpreters are available, either on the premises or accessible by

telephone, 24 hours a day. 69 Jane Perkins & Mara Youdelman, Summary of State Law Requirements Addressing Language Needs in Health Care. NATIONAL HEALTH LAW PROGRAM (2008). http://www.healthlaw.org/images/pubs/nhelp_lep-state-law-chart_12-28-07.pdf. 70 Illinois Language Assistance Services Act. 210 ILCS 87 (2007). http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1235&ChapterID=21. 71 Illinois Fair Patient Billing Act. 210 ILCS 88, (2007). http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2798&ChapterID=21. 72 ILAS, supra note 70. 73 Id. 74 Id. 75 Id. 76 Illinois Dep’t of Public Health, Language Assistance Services Code. 77 Ill. Admin. Code §940. http://www.ilga.gov/commission/jcar/admincode/077/07700940sections.html.

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Annually transmit to the Illinois Department of Public Health a copy of the updated

policy, including a narrative description of the facility’s efforts to ensure adequate

and speedy communication between patients or residents with language or

communication barriers and staff.

Develop, and post in conspicuous locations, notices that (1) advise patients or

residents and their families of the availability of interpreters, (2) the procedure for

obtaining an interpreter, and (3) the telephone numbers to call for filing complaints.

Notices posted, at a minimum, in the emergency room, the admitting area, the

facility entrances, and outpatient areas, informing patients that interpreter services

are available on request, with a list of all the languages of the population of the

geographic area served by the facility.

Staff Training.77

The 2007 amendment of ILAS also encouraged, but did not mandate, facilities do

one or more of the following:

Identify and record a patient’s primary language and dialect on the patient’s medical

chart, bedside notice, patient ID bracelet, and/or nursing card.

Prepare and maintain a list of interpreters who have been identified as proficient in

sign language and in the languages of the population of the geographical area served

by the facility.

Review all standardized written forms, waivers, documents, and informational

materials available to patients or residents on admission to determine which to

translate into languages other than English.

Provide non-bilingual staff with standardized picture/phrase sheets.

Develop community liaison groups to ensure the adequacy of the interpreter

services.78

77 Id. 78 Id.

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Also amended in 2007, the IFPB required that, “patient notification of the hospital’s

financial assistance programs be posted conspicuously in all admission and registration

areas of the hospital, in English, and in any other language that is the primary language of at

least 5% of the patients served by the hospital annually.”79 (emphasis added.)

But as noted in a New York Times article in 1997, while the stakes are high, solutions are

complex:

The Federal Government and many states … require hospitals to provide interpreters or risk losing Medicaid and Medicare reimbursements. But the rules on how to carry out the laws are vague and enforcement is difficult. In most cases, hiring some bilingual employees is enough to stave off a complaint. And most violations are never discovered, since immigrants who speak no English frequently do not know their rights or are reluctant to file complaints.80

Although there is case law addressing failures to provide American sign language

interpretation for hearing disabled patients, none was found that specifically

address the points made in the article with respect to LEP patients and lack of

language interpreters. A fair assumption is that it is likely that complaints that are

made are addressed at the administrative level, perhaps by consent decree with

either OCR or OMH, or its parallel state agencies.

The Joint Commission Requirements

The Joint Commission is the accrediting body that regularly monitors hospitals. It

issued additional standards in January 2006, related to collection of data about language

79 IFPB, supra note 71. 80 Esther B. Fein, Language Barriers Are Hindering Health Care, N.Y. TIMES, November 23, 1997, at 4. http://www.nytimes.com/1997/11/23/nyregion/language-barriers-are-hindering-health-care.html?src=pm.

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needs.81 At that time, it also adopted the OMH definition of “culturally competent

healthcare services that are responsive to the linguistic needs of diverse patient

populations.”82 In its Hospitals, Language and Culture: A Snapshot of the Nation report, TJC

recommended specific strategies to address language and cultural issues to serve diverse

patient populations in American hospitals, several standards and “category A, B and C”

elements of performance (“EPs”) were set, addressing requirements for the provision of

care, “in a manner conducive to the cultural, language, literacy, cognitive and

communication needs of patients.”83 Category A elements are deemed “all the time”

requirements, category B requires an effective process to deliver and measure compliance,

while category C sets an expectation of 90% compliance with the relevant EPs.84 As an

example, Standard RI.2.100 sets forth several EPs which express the expectation that the

hospital respect patients’ rights to receive health care information in a manner that he or

she understands and facilitates the provision of translation and interpretation services.85

Other TJC standards and EPs require effective collection and recording of patient data to

facilitate these communication needs.86

In early 2008, with funding from The California Endowment, TJC released its new

Hospitals Language & Culture (HLC) study, called One Size Does Not Fit All: Meeting the

Health Care Needs of Diverse Populations.87 The reports details how sixty hospitals across

81 The Joint Commission, 2006 Standards for Hospitals, Ambulatory, Behavioral Health, Long Term Care, and Home Care. 82 TJC, supra note 25. 83 Id. 84 Id. 85 Id. 86 Id. 87 A. Wilson-Stronks, et. al., One Size Does Not Fit All: Meeting The Health Care Needs of Diverse Populations. The Joint Commission; (2008). http://www.jointcommission.org/assets/1/6/HLCOneSizeFinal.pdf.

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the country addressed challenges to providing health care to culturally and linguistically

diverse patient populations.88 In August 2008, TJC began developing accreditation

standards for hospitals to promote, facilitate, and advance the provision of culturally

competent patient-centered care.89 On March 1, 2010, TJC released an updated report

entitled, Advancing Effective Communication, Cultural Competence, and Patient-and Family-

Centered Care: A Roadmap for Hospitals.90 The 2010 report announced the pending release

of a pilot program for new standards.91 In January 2011, TJC issued the new and revised

requirements for language and interpretation standards as part of a year-long pilot for

healthcare providers nationwide.92 The pilot phase will end in January 2012, at which time

accrediting decisions will be impacted by the requirements.93 The aim of the new TJC

requirements is to expand on its earlier standards in order to further improve patient-

provider communication and ensure patient safety, and among the requirements are the

need for “proof of interpreter training and fluency competence, often difficult to track,

given changing demographics and as the number of spoken languages and dialects of

patients grows and changes in a provider’s service area.”94 The 2011 requirements include

two EPs related to “Effective Communication” (PC.02.01.21; EPs 1 and 2) and one related to

“Collecting Race and Ethnicity Data” (RC.02.01.01; EP 28).95 As noted in the most recent

88 Id. 89 Id. 90 The Joint Commission, Advancing Effective Communication, Cultural Competence, and Patient-and Family-Centered Care: A Roadmap for Hospitals. (2010). http://www.jointcommission.org/assets/1/6/ARoadmapforHospitalsfinalversion727.pdf. 91 Id. 92 The Joint Commission, R3 Report: Requirement, Rationale, Reference. (2011). http://www.jointcommission.org/assets/1/18/R3%20Report%20Issue%201%2020111.PDF. 93 Id. 94 Id. 95 Id.

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annual report from AHRQ, “[c]ollection and use of data on race, ethnicity, and language are

key parts of the process of identifying health care needs and eliminating disparities.”96

Effective Race & Ethnicity Data Collection Remains a Challenge

Compliance with the cited Illinois statutes and regulations requires a hospital to

collect and record primary language data at admission, in a “statistically accurate and

meaningful” manner.97 The OCR’s guidance and TJC’s LEP guidelines both suggest that

methods of primary language data collection may include the use of a language recognition

tool, such as a healthcare-related variation of the HHS “I Speak…” language flashcard.98 The

OCR guidance also recommends that language in which the patient is most comfortable

communicating information about their healthcare be recorded in the patient’s medical

record.99 OCR describes the “I Speak…” card as a tool admissions staff can utilize in

requesting that the patient merely point to, in order to indicate the language in which they

are most comfortable communicating about their healthcare.100 The flashcard contains a

sentence in each of the 38 different languages collected by Census Bureau data, which

states: “Mark this box if you read or speak [language name].”101 Recommendations found

in TJC’s 2007 report include that collection of primary language data be a required field

captured, “in the same manner as name, address and birth date during the admission and

registration process, and requiring that it be affirmatively selected (rather than defaulted

96 AHRQ, supra note 19. 97 IDPH, supra note 76. 98 HHS language flashcards: “I Speak…” http://www.lep.gov/ISpeakCards2004.pdf. 99 OCR, supra note 23. 100 Id. 101 HHS, supra note 98.

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to English) before the registration process may be closed.”102 Two faculty members from

Northwestern University’s Feinberg School of Medicine, Drs. David Baker and Romana

Hasnain-Wynia, have long been at the forefront of urging healthcare providers to

accurately collect data on the race, ethnicity and language preference of patients.103 In

2006, they lamented that, “[d]ata collection practices for race, ethnicity, and primary

language information are quite variable, the sources are diverse and fragmented, and the

information is incomplete.”104 In 2007, Dr. Hasnain-Wynia and her team created a toolkit,

including staff training recommendations and patient encounter scripts for healthcare

providers to use to direct their efforts in both data collection strategies and for training of

front-line admitting and registration staff in requesting race, ethnicity and language

preferences.105

Recent efforts at Chicago’s Northwestern Memorial Hospital to retool the electronic

collection and capture of race, ethnicity and language data, as recommended by OCR and

TJC, brought to light some of the challenges providers face in re-writing lengthy and

complicated computer code in order to restructure patient admitting screens in a hospital’s

software applications. Information technology staff at healthcare provider operations

around the country are already challenged attempting to re-engineer their clinical

information systems to meet the Health Information Technology for Economic and Clinical

Health (“HITECH”) and Electronic Medical Record (“EMR”) provisions rolled out in the

102 TJC 2007 report, supra note 25. 103 David Baker & R. Hasnain-Wynia, Obtaining Data on Patient Race, Ethnicity, and Primary Language in Health Care Organizations: Current Challenges and Proposed Solutions. (2006), THE HEALTH RESEARCH AND

EDUCATIONAL TRUST OF THE AMERICAN HOSPITAL ASSOCIATION: 41(4 Pt.1) HEALTH SERV RES. (2006) 1501–1518. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1797091/. 104 Id. 105 R. Hasnain-Wynia, Health Research and Educational Trust Disparities Toolkit, (2007). http://www.hretdisparities.org/.

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American Recovery and Reinvestment Act of 2009, (“ARRA”).106 Coupled with

requirements to have a substantially expanded medical billing and coding data set (“ICD-

10”) framework in place by October 2013, these competing and overlapping efforts are

both expensive and labor-intensive, particularly in light of a compliance timeline that some

experts in healthcare technology alternately describe as “compressed” and “onerous.”107 108

A 2009 collaborative report from IOM, HHS and AHRQ was drafted by its joint

“Subcommittee on Standardized Collection of Race/Ethnicity Data for Healthcare Quality

Improvement” (“Subcommittee”) to identify current models for collecting and coding race,

ethnicity, and language data, “in order to ascertain what challenges were involved in

obtaining these data in health care settings; and to make recommendations for

improvement.”109 The Subcommittee report, in a detailed and thorough examination of the

current state of data collection and recommendations for adopting nationally standardized

methods, opined that the collection of race and ethnicity data in order to make the

necessary determinations about the threshold number of LEP patients in a provider’s

service area is an issue that many hospitals have struggled to effectively address.110 The

first two factors of OCR’s four-factor analysis requires an assessment of the number or

proportion of LEP individuals eligible to be served or encountered and the frequency of

106 American Recovery and Reinvestment Act of 2009, Public Law 111-5 §3002(b)(2)(B)(vii), 123 Stat. 115, 111th Cong., 1st sess. (February 17, 2009). 107 R. Lowes, Physicians Say Onerous ‘Meaningful Use’ Requirements Could Make EHR Incentives Meaningless. MEDSCAPE MEDICAL NEWS, March 9, 2010. http://www.medscape.com/viewarticle/718215. 108 D. Manos, Critics Hammer Feds at Congressional Meaningful Use Hearing, HEALTHCARE FINANCE NEWS, July 21, 2010. http://healthcarefinancenews.com/news/critics-hammer-feds-congressional-meaningful-use-hearing. 109 Institute of Medicine subcommittee report, Race, Ethnicity, and Language Data: Standardization for Health Care Quality Improvement. Ulmer, C., et. al. eds., Washington, D.C.: THE NATIONAL ACADEMIES PRESS (2009), available at http://www.ahrq.gov/research/iomracereport/iomracereport.pdf. 110 Id.

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those encounters.111 Additionally, it requires providers to identify LEP populations with

whom they are likely to have contact with in their service areas.112 The 2009 IOM

Subcommittee report found that, “[a] lack of standardization of categories for race,

ethnicity, and language data has been suggested as one obstacle to achieving more

widespread collection and utilization of these data.”113 One of the Subcommittee’s

language data collection recommendations is that entities collecting data from individuals

for purposes related to healthcare should, “collect data on an individual’s assessment of

his/her level of English proficiency and on the preferred spoken language needed for

effective communication with health care providers … and where possible … collect data on

the language spoken by the individual at home and the language in which he/she prefers to

receive written materials.”114

Conducting an accurate and up-to-date language needs assessment of the hospital’s

patient population and service areas is critical to designing appropriate language

interpreter services.115 The OCR policy guidance describes a provider’s “service area” as

the geographic area that has been approved by a Federal grant agency, and where no

service area has been approved, the relevant service area will be considered as that

designated by state or local authorities or designated by the provider itself.116 The joint

IOM/HHS/AHRQ Subcommittee report supports language and ethnicity data

standardization as meeting one of the goals set forth in ARRA, of having a national

electronic health record (“EHR”) for each individual by 2014, that will incorporate

111 OCR, supra note 23. 112 Id. 113 IOM Subcomm. supra note 108, at 24. 114 Id. at 28. 115 Baker, supra note 103. 116 OCR, supra note 23.

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collection of data on the person’s race, ethnicity, and primary language.117 Standardization

efforts for collection of race, ethnicity and language data may likely be a hybrid of

successful models that have been employed in Massachusetts and California, as reported on

in the IOM Subcommittee Report.118 Section 4302 of the Patient Protection and Affordable

Care Act (“PPACA”) contains provisions to strengthen federal data collection efforts by

requiring that all national federal data collection efforts collect information on race,

ethnicity and primary language, mirroring the Subcommittee’s recommendation that the

data collection utilize existing Office of Management and Budget (“OMB”) collection

criteria.119

The Question of “Vital” or “Non-Vital” Materials

The Subcommittee’s call for healthcare providers to determine what language the

patient prefers to receive written materials relates back to and builds upon the earlier OCR

guidance around provision of translated materials and determinations as to whether a

provider’s written materials should be designated as either “vital” or “non-vital.”120 The

OCR guidance indicated that making a determination as to whether or not a document is

"vital" depends upon (1) the importance of the program, information or service involved,

and (2) the consequence to the LEP person if the information is not provided accurately or

in a timely manner, which would effectively denying LEP individuals meaningful access.121

Examples provided of what “vital” written materials might include in the context of the

117 ARRA, supra note 106. 118 IOM Subcomm. supra note 108, at 137. 119 Patient Protection and Affordable Care Act of 2010, Pub. L. 111-148, § 4302(a)(1)(A),(C), 124 Stat. 119, 111th Cong., 2nd sess. (March 23, 2010). 120 OCR, supra note 23. 121 Id.

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provision of healthcare are such documents as consents, complaint/survey forms, intake

forms and discharge instructions, notices of eligibility criteria, notices at entrances, and

informational brochures advising LEP persons of the right to free language assistance, as

well as applications, brochures or other marketing materials that direct patients how to

participate in a provider’s programs, activities or services.122 By contrast, OCR’s examples

of “non-vital” written materials in a hospital setting would include such things as hospital

menus, brochures or flyers distributed as a public service for informational purposes only,

and large documents such as enrollment handbooks or a hospital’s chargemaster.123 In a

case in which a particular document or brochure might include both vital and non-vital

information, (such as marketing brochures offering available services) OCR recommended

that “multi-language instructions for where a LEP person might obtain an interpretation or

translation of the entire document free-of-charge” must appear on the document.124

The OCR guidance suggested that further considerations as to the correct mix of oral

(interpretation) language services and written (translation) services should be based on

what is “… both necessary and reasonable in light of the four-factor analysis.”125 The

guidance suggested providers should also consider translation of a document as a one-time

expense to be amortized over the likely lifespan of a document when analyzing whether it

is appropriate to translate into other languages.126 Safe Harbor provisions that outline

what OCR considers to be “strong evidence of compliance” apply to the translation of

122 Id. 123 Id. 124 Id. 125 Id. 126 Id.

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written documents only, not the provision of oral interpreter services.127 Those provisions

indicate that oral interpretation “may not substitute for the translation of vital written

documents in the languages of those eligible to be served or likely to be affected or

encountered.”128 The OCR guidance is clear that the provider must assess the populations

that are “eligible to receive its services” to determine its legal obligation to translate vital

documents.129 As set forth in the safe harbor, the threshold number for translation of vital

documents is reached when the LEP population is 5% or 1,000 people, whichever is less.130

It stands to reason that in many diverse urban areas, it might be likely that several

languages in a hospital’s service area could reach this threshold number of 1,000.

Recognizing the undue economic burdens that wholesale document translation would

place upon some providers, the guidance suggests recipients set benchmarks for

translating documents into the remaining “frequently-encountered” languages, over

time.131

Friends & Family As Interpreters

In Illinois, although neither the Illinois Language Assistance Services Act nor the

relevant federal laws and regulations expressly prohibit a provider from allowing an LEP

patient from voluntarily designating an adult family member or friend to provide oral

interpretation and/or written translation, TJC has strongly recommended against the

practice132 and the OCR guidance also provided procedural cautions.133 In its written LEP

127 Id. 128 Id. 129 Id. 130 Id. 131 Id. 132 TJC 2007, supra note 25.

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guidance document, OCR discussed these procedural cautions in circumstances in which a

patient requests that language services be provided by a patient’s family member or friend,

and suggests that providers record in the patient’s chart the LEP person’s choice of using a

family member as well as details of the provider’s offer to provide free language

assistance.134 Additionally, the OCR guidance suggested that healthcare provider staff

“should take reasonable steps to ascertain that family, legal guardians, caretakers and other

informal interpreters are not only competent to interpret necessary medical information,

but are also appropriate in light of the patient’s personal circumstances and subject matter

of the program, service or activity.”135 OCR guidance further advised that if the provider’s

staff believes the family/friend interpreter to be not competent or not appropriate under

the circumstances, that the provider supplement the LEP person’s given choice of

interpreter with its own competent medical interpreter. In the guidance document, OCR

provided specific examples of when a recipient should not consider the voluntary

interpreter to be competent or appropriate under the circumstances, such as in the case of

suspected violence against or abuse of the patient.136 In its March 2007 white paper, TJC

advised hospitals to include in its written language policy a prohibition on the use of family

members and children as interpreters except in the case of an emergency.137

133 OCR, supra note 23. 134 Id. 135 Id. 136 Id. 137 TJC 2007, supra note 25.

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Informed Consent or “Consentimiento Informado”?

If a healthcare provider proceeds with treatment without addressing an LEP

patient's limited capacity to understand can that provider have effectively obtained

informed patient consent?

In 1983, a woman was found on the streets of Johnson, Kansas; dressed oddly,

unwashed and unkempt, and unable to communicate anything other than what sounded

like a few Spanish words.138 Because she appeared to exhibit signs of mental illness, she

was taken into protective custody and ultimately involuntarily committed to the state

mental hospital where she was diagnosed with schizophrenia.139 She was administered

psychotropic medications and eventually developed a permanent condition that often

results from long-term treatment with psychotropic medications.140 During her

commitment she was visited by Spanish-language translators, but no effective

communication with the patient was ever reached.141 After being hospitalized and

medicated for twelve years, the Mexican Consulate notified the state hospital that their

patient matched the description of a long-missing Tarahumara Indian.142 The behaviors

that her first physicians had attributed to mental illness, including her mode of dress and

refusal to bathe, were determined to be traditional aspects of her culture.143 She did not, in

fact, speak Spanish at all, only the language of her tribe, Ramuri.144 Once an interpreter

who spoke her native language was found, she was released from the facility and

138 Quintero v. Encarnacion, No. 99-3258, 2000 U.S. App. LEXIS 30228 (10th Cir. 2000). http://ca10.washburnlaw.edu/cases/2000/11/99-3258.htm. 139 Id. 140 Id. 141 Id. 142 Id. 143 Id. 144 Id.

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repatriated to her home in Mexico.145 In a subsequent suit against the treating physicians,

the U.S. Court of Appeals for the Tenth Circuit ruled that informed consent had never been

obtained if the explanations were conducted in a language the patient did not

understand.146 Similarly, in a 2001 case involving the death of a hearing-impaired patient

whose only language was American Sign Language, the U.S. District Court for the District of

Maryland found the deceased woman’s healthcare providers could not have obtained her

informed consent, having never communicated treatment options and risks with her in her

“native language” and further held that the efficacy test is “whether an interpreter was

necessary to provide the individual with an equal opportunity to benefit from the services

provided by the defendants to patients who do not suffer from language barriers.”147

The Bottom Line: Must Cost Be “King”?

The cost of providing interpreters and translated materials for LEP patients are not

insignificant.148 Many health care providers do not provide adequate interpreter services

because of the financial burden such services impose.149 In a report issued in March 2002,

the OMB put the annual cost of interpretation services to LEP patients as high as $267.6

million, covering 66.1 million emergency room, inpatient, outpatient and dental visits.150

While providing medical interpreters is costly and requires more of a provider’s time to

145 Id. 146 Id. 147 Estate of Alcalde v. Deaton Specialty Hosp. Home, Inc., 133 F. Supp. 2d 702 (D. Md. 2001). 148 E.A. Jacobs, et. al., The Impact of Interpreter Services on Delivery of Health Care to Limited English-Proficient Patients. 16 J GEN INTERN MED. (2001) 468–474. 149 J.D. Graham, Office of Information and Regulatory Affairs’ Assessment of Costs and Benefits Associated with Implementation of Executive Order 13166. 66 C.F.R. §59824-59825 (2001). http://www.gpo.gov/fdsys/pkg/FR-2001-11-30/html/01-29903.htm. 150 National Conference of State Legislatures, STATE HEALTH NOTES 23, no. 381 (October 7, 2002). http://www.ncsl.org/IssuesResearch/Immigration/LanguageAccessGivingImmigrantsaHandinNavig/tabid/13143/Default.aspx.

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communicate with his or her patient, it is cost-effective in the long run.151 One study,

conducted in Massachusetts from 1995 to 1997, found that interpreter services enhanced

LEP patients’ access to primary and preventive care for only a moderate increase in cost.152

The study concluded that:

[T]he expenditure of $279 per person per year for interpreter services was reasonable, especially because interpretation improved patients’ utilization of preventive and primary care services, such as follow-up visits and medications, that potentially may reduce costly complications of these and other conditions. The statistically significant increase in receipt of preventive services also suggests that improving language access for patients who have limited English proficiency may lower the cost of care in the long run.153 Some evidence suggests that the unnecessary ordering of laboratory tests is reduced

when interpreters are present, thereby reducing overall costs of care to LEP patients.154

But as Dr. Jacobs and her team have suggested, “providers need reimbursement from

insurers such as Medicaid for the provision of interpreter services.”155

Payment for healthcare services should reflect the differential of care required to

accommodate the language access needs of LEP patients.156 In 2000, and more recently in

July 2010, the Centers for Medicare and Medicaid Services (“CMS”) issued a letter notifying

each state’s Medicaid Director that both Medicaid and Title XXI State Children's Health

Insurance Program (“S-CHIP”) allowed for reimbursement to providers for the costs of

providing interpreter and translation services, yet only eleven states currently reimburse

151 E.A. Jacobs, et. al., Overcoming Language Barriers in Health Care: Costs and Benefits of Interpreter Services. 94 AM J PUBLIC HEALTH 866-869 (2004). http://www.fachc.org/pdf/mig_costs%20and%20benefits%20of%20interpreters.pdf. 152 Id. at 867. 153 Id. at 868. 154 Jacobs, supra note 148. 155 Jacobs, supra note 151, at 869. 156 PATRICIA FRYE-WALKER & ELIZABETH D. BARNETT, IMMIGRANT MEDICINE 30, 32 (2007).

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providers separately for those services.157 To help offset the cost of interpreter services

states seek reimbursement from their federal match, at 75% rather than 50%, under both

Medicaid and S-CHIP by either billing for language assistance as part of another medical

service or by billing for the language service as an administrative expense.158 All other

states have chosen to bundle payment as included in a provider’s overhead.159 Although

millions of Medicare recipients speak English less than very well, Medicare does not

reimburse for interpreter services at all.160 In their textbook, Immigrant Medicine, Drs.

Frye-Walker and Barnett point out that it is health plans and hospitals that are best-

situated for underwriting the costs associated with interpretation and translation

services.161 They opine that health plans have an incentive to keep their members

healthier, thereby deterring higher medical costs, and hospitals would see less use of acute-

care, cost-intensive emergency department visits if LEP patients’ use of primary care

services were better optimized.162 Drs. Frye-Walker and Barnett note that, “a hospital’s

investment in language access services could also … reduce [their] costs of uncompensated

care.”163

The eleven states that do reimburse providers via Medicaid and/or S-CHIP monies

have developed innovative approaches to utilizing the available federal match.164 For

example, in Minnesota, the state’s health department created a spoken language resource

157 U.S. Dep’t of Health & Human Services, Centers for Medicare and Medicaid Services, Letter to State Medicaid Directors, (July 1, 2010). https://www.cms.gov/smdl/downloads/SHO10007.pdf. 158 Id. 159 FRYE-WALKER, supra note 156, at 31. 160 Glenn Flores, Pay Now or Pay Later: Providing Interpreter Services in Healthcare. 24:2 HEALTH AFFAIRS (2005) 435-444. http://content.healthaffairs.org/content/24/2/435.full. 161 FRYE-WALKER, supra note 156, at 52. 162 Id. at 39. 163 Id. at 54. 164 NCSL, supra note 150.

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guide, developed professional standards for interpreters, a translation protocol for vital

written materials, and designed new software to aid in translations.165

Conclusion

Effective communication is particularly critical in healthcare settings where even a

simple miscommunication can lead to misdiagnosis and improper or delayed medical

treatment.166 One word mistranslated can indeed mean the difference between life and

death.167 Beyond the legal obligations and accreditation requirements related to language

and communication services, there is a provider’s ethical promise to “Do No Harm” and

when reasonable measures may be taken to reduce this particular risk of harm, it is

incumbent upon healthcare providers to assure that deficits of basic communication do not

result in unnecessary harm.

This is not an issue that is going to go away or diminish with time. By 2050, the U.S.

Census Bureau estimates that nearly one in five people living in the United States will be

foreign-born.168 Healthcare providers delivering services that respond to a patient’s

cultural and linguistic needs can help bring about more positive health outcomes. Although

the current climate of increasing statutory and regulatory requirements, coupled with

rapidly decreasing reimbursement rates places heavy burdens and competing priorities

upon healthcare providers, there are also simple, straightforward steps providers can take

to ensure that LEP patients are afforded the same meaningful access to healthcare as

native-English speaking patients.

165 Id. 166 Flores, supra note 4. 167 Id. 168 U.S. Census Bureau, U.S. Interim Projections by Age, Sex, Race, and Hispanic Origin: 2000-2050. http://www.census.gov/population/www/projections/usinterimproj/.

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Utilizing tools developed and made available by federal agencies, accrediting bodies,

patient safety advocates and proponents of language-appropriate healthcare delivery is a

baseline action that can be taken by providers at all levels – from urban hospitals to rural

clinics, large physician groups to community health agencies. Successful partnerships and

collaborations around the country, such as the “Speaking Together: National Language

Services Network” initiative established by the Robert Wood Johnson Foundation in 2006,

conducted at a ten-hospital collaborative around the country over a two-year period, have

resulted in effectively enhancing the language and communication services provided to LEP

populations.169 Agencies such as the National Committee for Quality Assurance (“NCQA”)

have assembled resources and materials that providers can utilize to design a language

services assistance plan.170 In 2009, NCQA created an awards program to recognize

healthcare provider organizations around the country that have developed innovative and

effective tools for providing culturally competent and linguistically appropriate services. 171

In November 2011, the HHS Office of Minority Health unveiled its comprehensive

planning, assessment, evaluation and training tool on a dedicated website.172 Users may

register to utilize the guide and download its resources. This new Health Care Language

Services Implementation Guide reflects updated CLAS standards from OMH, and builds upon

those by providing guidance and resources for health care providers to implement

169 Robert Wood Johnson Foundation Partnership, The Sound of Success: Efficient And Effective Language Services Becoming A Reality In Some Hospitals. (2008), video highlight summary. http://www.rwjf.org/qualityequality/product.jsp?id=34929. 170 Nat’l. Comm. for Quality Assurance, Implementing Multicultural Health Care Standards: Ideas and Examples. (2010), http://www.ncqa.org/Portals/0/Publications/Implementing%20MHC%20Standards%20Ideas%20and%20Examples%2004%2029%2010.pdf. 171 Id. 172 Office of Minority Health, U.S. Dep’t of Health and Human Services, Health Care Language Services Implementation Guide (2011). https://hclsig.thinkculturalhealth.hhs.gov/default.asp.

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language access service plans.173 The online guide sets forth the basic steps for planning

and implementing a language assistance plan, with detailed information, resources,

standardized forms and webinar videos for carrying out each step in the process.174

Explanations and case studies, suggestions for creating a business case, building executive

office support and comprehensive recommendations are provided, and are supplemented

with links to resources, toolkits, documents, model policies and tips on how to effectively

complete each step.175 An interactive diagram at the end of the web guide highlights

various patient points of contact within any healthcare organization where language

services would be needed and then maps the user to not only the relevant information and

resources within the guide, but also references the applicable CLAS standard on which the

requirement is based.176

Despite the wealth of resource materials, much more must be undertaken by

government agencies and provider networks to establish standardized language code sets

that will facilitate consistent electronic collection and reporting of data to identify patient

populations not now receiving adequate communication services, in order to enable them

to fully avail themselves of medical care in their native languages. Simultaneously,

policymakers must begin to address the need for greater resources that are needed to

support and reimburse for professional interpretation services, and as the Institute of

Medicine has recommended, “more research and innovation should identify effective

means to harness new technologies (e.g., simultaneous telephone interpretation) to aid

173 Id. 174 Id. 175 Id. 176 Id.

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interpretation.”177 While we are still a long way from ensuring full and meaningful access to

our LEP patients, many resources are now available to providers to enable them to harness

the experiences and successes of organizations, agencies, patient safety advocates and

community groups who have embraced the need to provide equitable, culturally competent

and language-sensitive care to LEP patients.

The recently published OMH Health Needs Assessment planning and

implementation worksheets and tools are an accessible and important first step for

healthcare organizations to take.178 Developing an action plan for assessing the language

needs of its primary service area population, adopting and operationalizing an integrated

written plan, training staff and then periodically auditing the organization’s language

assistance policies and processes are the critical steps to a provider successfully delivering

adequate, competent and meaningful language services to its LEP patients.

It is too critical and costly – to both patients and providers - not to act swiftly and

decisively. In its report to healthcare administrators, the Institute of Medicine cited Goethe

in its call to action:

“Knowing is not enough; we must apply. Willing is not enough, we must do.”179

177 Smedley, supra note 1, at 35. 178 OMH, supra note 172. 179 IOM, supra note 10.