The Business_ Quality and Legal Case for Immigrant Health - Confex

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    Providers’ Legal Obligations to Provide Language
                   Assistance Services
                                          By
                                  David B. Hunt, J.D.

       An elderly male Hmong patient was recently admitted to a Midwestern hospital.

The patient spoke no English. No interpreter was provided to him. Instead, his attending

nurse attempted to communicate with the patient via hand gestures. Each time the nurse

spoke to the patient in English and gestured with her hands, the elderly gentleman would

look at her, smile and nod. After three days in the hospital, a Hmong interpreter was

finally arranged. When the attending nurse was asked why she hadn’t used an interpreter,

she said that she and the patient were communicating just fine and that she didn’t feel the

need to call one. Under further questioning however, the nurse acknowledged that she did

not know how to access an interpreter, had received no training on how to communicate

with patients via an interpreter and had not apprised the patient of his legal right to an

interpreter. Unbeknownst to the nurse, the Hmong patient was blind.

       This story is repeated every day in some form throughout the United States. Such

stories represent an ongoing tragedy for Limited English Proficient (LEP) patients and

their families who are denied both high quality health care as well as their civil rights.

But they also represent a tragedy for many well-intentioned medical professionals who

are unaware that their ignorance of existing laws requiring the provision of language

assistance services could compromise patient care and create both legal liability as well

as medical malpractice exposure. FN 1.
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       Providers’ failure to ensure meaningful access to language assistance for people

with limited English skills can have serious, even life or death consequences as the

following cases demonstrate:

      A hospital in South Carolina had a policy of prohibiting women with limited

       English skills from receiving an epidural during labor and delivery. FN 2

      Hongkham Souvannarath, a 52-year-old refugee from Laos was jailed by the

       Fresno California County Health Department for almost eleven months because

       she did not take medication for a case of tuberculosis that health officials feared

       could become contagious. Ms. Souvannarath stopped taking her medications, in

       part, because she understood a non-Laotian appointed interpreter to say that the

       medicine would kill her. Souvannaroth was taken at gunpoint to the county jail

       after being told she was being taken to a hospital. There she was strip-searched

       and initially housed in a safety cell for three days because a Hmong officer

       misinterpreted her Laotian comment that she was “afraid to die” as a suicide

       threat. While in confinement she was frequently handcuffed, shackled and

       chained to her bed. Only one guard occasionally provided interpretation services

       and she was unable to communicate her needs to jail personnel. A subsequent

       lawsuit against the County settled for $1.2 million. FN 3.

      A young boy in Los Angeles interpreted a consent form for his father that

       pertained to his ailing mother. The son thought the form meant that a nurse would

       make daily visits to care for his mother, and the father signed the form. Instead,

       the mother was sent to a nursing home. FN 4.
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        This chapter is organized into two parts. In Part One, we will describe the existing

framework of federal and state laws that require health care organizations to provide

language assistance services and “culturally appropriate care” to Limited English

Proficient patients. In this section, we will also describe what health care organizations

and medical professionals must do to comply with these laws. In Part Two, we will

describe a variety of policy initiatives currently being discussed to promote more

culturally and linguistically appropriate care and the legal issues presented by these

policies. In particular, this section will discuss legal issues associated with: (1) promoting

the collection of data related to race, ethnicity and primary language by health plans,

hospitals and government programs; (2) providing cross-cultural medical education to

doctors and nurses; and (3) implementing a comprehensive language access agenda.

          Part One: Federal and State Laws Requiring Language Assistance

        The Civil Rights Act of 1964, of which Title VI is a part, created broad national

powers to end discrimination in employment, places of public accommodation (such as

hospitals) and programs and activities that receive federal financial assistance. The

legislative history of Title VI indicates that health care was prominent in the minds of its

authors as passage of the 1964 Act was contemporaneous with the judicial ruling in

Simkins v. Moses H. Cone Memorial Hospital. FN 5. Simkins was a landmark case in

which the courts struck down as unconstitutional key portions of the Hill Burton Act

which had authorized the use of federal funds to construct and operate segregated health

care facilities.
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       Title VI of the Civil Rights Act of 1964 prevents federal money from being used

to support activities and programs that discriminate on the basis of race, color or national

origin. Section 601 of Title VI states that no person 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.” FN 6. Under section 602, the Department of Health and Human Services

(HHS) has issued regulations that say recipients of federal funds can not:

       [U]tilize 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 accomplishment of the
       objectives of the program as respect to individuals of a particular race, color, or
       national origin. FN 7

       In 1974, the U.S. Supreme Court affirmed these regulations in Lau v. Nichols.

FN 8. Lau involved a San Francisco, California school district that was desegregated

under court order in 1971. The desegregation process left 1,800 Chinese-American

students who did not speak English in schools without supplemental English language

courses. The Court recognized that “there is no equality of treatment merely by providing

students with the same facilities, textbooks, teachers and curriculum, for students who do

not understand English are effectively foreclosed from any meaningful education.” FN 9

The Court held that the school district’s failure to take affirmative steps to provide

language assistance constituted national origin discrimination under Title VI. FN 10

       Significantly, the key provisions of Title VI of the Civil Rights Act of 1964 have

gradually been incorporated into virtually every major federal statute of significance to

health care. For example, Title VI’s provisions have been incorporated into Medicaid,

Medicare, Medicare Plus Choice, the State Children’s Health Insurance Program
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(SCHIP), the Hill Burton Act, the Community Health Centers Act and the Maternal and

Child Health Block Grant Programs. As a result, nearly every state and local government,

health plan, hospital and physician that receives federal monies is bound by Title VI. The

requirements of Title VI apply to all recipients of federal funds, regardless of the amount

of federal funds received. Further, HHS has enforced Title VI against health care

organizations and providers that have failed to provide language assistance to LEP

patients. The rationale for doing so is virtually the same as the Supreme Court’s analysis

in Lau. According to HHS, “a recipient of Federal financial assistance that does not have

the ability to communicate with LEP persons deprives such persons of an equal

opportunity to participate and benefit from the federal program.” As a result:

        No persons may be subjected to discrimination on the basis of national origin in
        health and human services because they have a primary language other than
        English. FN 10


          Litigating Language Assistance Requirements Under Federal Law

        Title VI addresses two types of discrimination. The language of Title VI plainly

addresses intentional discrimination. However, regulations issued pursuant to Title VI

also address policies or practices that may be neutral on their face but have the effect of

discriminating on the basis of race, color or national origin (the “disparate impact” theory

or “effects” test).

        Until recently, immigrants and other private litigants were permitted to sue to

enforce Title VI regulations prohibiting acts with discriminatory effects. However, the

United States Supreme Court in the 2001 case of Alexander v. Sandoval ruled that there is

no private right of action under the Title VI regulations. FN 12. Sandoval involved a

class of non-English speaking residents of Alabama, who alleged that the state’s policy of
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offering the driver’s license exam only in English amounted to national origin

discrimination under the previously mentioned “effects” provision of the Title VI

regulation. While the Court of Appeals for the Eleventh Circuit agreed, the Supreme

Court ruled that private parties lacked the authority to file a lawsuit to enforce the effects

provision of the Title VI regulation.

       In the aftermath of Sandoval, immigrants and other private plaintiffs must now

establish that the conduct in question amounts to intentional discrimination under Title

VI. FN 13. Significantly however, while Sandoval applies to private parties, it has no

effect on the federal government’s ability to pursue civil rights cases using the effects test

under the Title VI regulation. The authority of agencies such as the Office for Civil

Rights at the Department of Health and Human Services remains unchanged.

       Immigrants can invoke the protections of Title VI in one of two ways. First, one

could file a written complaint with the Office of Civil Rights. Alternatively, one could

file a lawsuit under Title VI. From the standpoint of the immigrant plaintiff, there are

many advantages to filing an OCR complaint. Filing an OCR complaint does not require

a lawyer. If OCR becomes involved it can investigate both allegations of intentional

discrimination under Title VI and disparate impact under the Title VI regulations. If

OCR investigates and makes a finding of discrimination, that can be very powerful

evidence against the defendant. Moreover, the involvement of OCR frequently results in

a resolution of the case, sparing both the expense and uncertainty of protracted litigation.

       Once a complaint is filed, OCR will investigate its’ merits by reviewing the

pertinent practices and policies of the hospital or provider that is the subject of the

complaint, the circumstances under which the possible noncompliance occurred, and
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other factors relevant to a determination of whether the defendant has failed to comply

with Title VI. If OCR finds noncompliance, it will first seek voluntary compliance by the

provider. OCR’s ultimate sanction is to terminate federal funding to the provider, either

in an administrative proceeding or by referring the case to the Department of Justice for

litigation.

        Despite the stated advantages of filing a complaint with OCR, substantial

evidence suggests that this route has severe limitations. OCR has consistently lacked the

funding and the staff for conducting systematic compliance reviews. FN 14. As a result,

the agency has frequently been criticized as being reactive rather than proactive.

Moreover, the complaint approach used by OCR has several specific problems when it

comes to addressing racial and ethnic disparities in health care. First, immigrants

generally are not prone to file complaints, whether out of fear of possible retaliation or

possible deportation in the case of illegal aliens. Second, with some notable exceptions,

the advocacy community has not been focused on this issue since the Supreme Court

issued the Sandoval decision. Third, OCR’s lack of technical expertise in the medical

area results in few complaints being upheld. Finally, even after a complaint enters the

system, OCR’s investigative processes are inadequate and slow in finding violations,

resulting in inordinate lengths of time for case resolution and a finding of compliance in

most race-related cases. (OCR has never terminated federal funding for any provider no

matter how egregious the offense.)

        Although OCR’s track record of effectiveness may be less than inspiring,

providers dare not take it for granted. According to Thomas E. Perez, Former Director,

Office for Civil Rights at the U.S. Department of Health and Human Services, language
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access cases are easily OCR’s most frequently encountered type of Title VI case. FN 15.

Language access cases, Perez notes, are also the most frequent subjects of OCR Title VI

compliance reviews.

       Over the last 30 years, OCR has undertaken thousands of investigations and

reviews involving language differences in health care. A sampling of recently settled

OCR cases shows that intentional discrimination against immigrants and/or Limited

English Proficient patients is hardly a thing of the past:

      OCR settled a case involving Visiting Nurse Services, a home health care agency
       in Western Massachusetts. Although the agency is located in an area with a
       significant Spanish speaking population, complainants alleged that the agency
       would not provide interpreters to LEP patients and refused to accept patients for
       home care services if they did not speak English.

      OCR reached a settlement with the Rancho Los Amigos Rehab Hospital, a
       county-run hospital in Los Angeles. Complainants in the case alleged that the
       hospital discriminated against LEP patients by failing to provide free interpreters
       and by routinely requiring LEP clients to bring a family member or friend to
       interpret for them and routinely requiring LEP clients to pay for services.

      OCR reached a settlement with a hospital located near the U.S.-Mexico border in
       McAllen, Texas, that ordered its security personnel to dress up in uniforms that
       closely resembled the U.S. Border Patrol. This policy had the effect of deterring
       Latinos in the area from using the facility. FN 16

       The National Health Law Program has researched many of the formal complaints

between OCR and providers. The overwhelming majority of these reviews involved

hospitals. However, recently the subject matter of OCR reviews has broadened, to

include investigations regarding:

      Renal dialysis: for failing to provide qualified interpreters (Cook County Hospital
       Renal Dialysis Center);

      Managed care: for failing to ensure that Medicaid health maintenance
       organizations did not engage in marketing practices which deny information or
       enrollment opportunities to LEP persons (Illinois Department of Public Aid);
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      State Department of Health: A preliminary assessment found that the North
       Carolina Department of Health and Human Services has turned LEP clients away
       because no interpreters were available; required LEP clients to use family
       members and friends as interpreters; and failed to assess language needs of
       national origin groups, evaluate interpreter competency, have procedures to
       determine when written materials need translation, train staff on language access
       requirements, and notify LEP persons that interpreter services are available to
       them at no cost.

       OCR representatives have indicated that the most frequently encountered

language access problems are providers who: (1) directly or indirectly require patients to

provide their own interpreter service, through family or friends; (2) fail to provide

interpreter service, or provide untrained personnel; and (3) subject people with limited

English skills to lengthy delays as a result of the lack of readily available interpreter

services. FN 17.

       Although they involve a range of providers and situations, the OCR cases share a

number of common features. Specifically, they require providers to:

      Develop a written plan for providing LEP services.

      Designate a staff person to coordinate Title VI activities;

      Provide information and training to staff on these policies;

      Post translated notices that contain information on the availability of no cost
       interpreters;

      Maintain effective interpreter services by emphasizing in-person interpretation
       and, to the extent possible, minimize telephone interpretation;

      Provide translation of important forms and documents;

      Collect and analyze data to determine if interpreter services are effective;

      Monitor subcontractors and include a nondiscrimination clause in all contracts for
       services. FN 18.
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         Recent Developments: Executive Order 13166 and DHHS Guidance

        In recent years, with immigration at record highs, there has been a spate of new

federal developments with respect to the provision of language assistance services to

immigrants. On August 11, 2000, President Clinton issued Executive Order 13166,

entitled Improving Access to Services for Persons with Limited English Proficiency.

Executive Order 13166 required every federal agency that provides federal assistance,

including HHS, to publish a Title VI guidance to explain to recipients of federal funds

how to provide access to LEP persons and achieve compliance with the Title VI

regulations. The HHS Office of Civil Rights issued an initial guidance on this topic on

August 30, 2000. Subsequently, on August 4, 2003, HHS published a revised Guidance to

Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National

Origin Discrimination Affecting English Proficient Persons (2003 HHS LEP Policy

Guidance). FN 19. The Guidance made clear that it did not create new obligations but

rather, clarified existing Title VI responsibilities.

      What Providers Must Do to Comply With Federal Language Access Laws

        OCR’s 2003 LEP Policy Guidance outlines the responsibilities of health and

human service providers under Title VI to ensure that people with limited English skills

can meaningfully access health and human services. It also provides a roadmap to assist

providers in meeting their legal obligations. Providers who are subject to these

obligations include hospitals, nursing homes, state Medicaid agencies, managed care

organizations, home health agencies, state, county and local health agencies and

physicians and other providers who receive Federal financial assistance from HHS.
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       The Guidance defines a Limited English Proficient individual as “individuals who

do not speak English as their primary language and who have a limited ability to read,

write, speak or understand English.” Significantly, LEP individuals may not only be the

patient themselves but also parents and legal guardians of minors eligible for coverage.

              Four-Factor Test To Determine Language Assistance Obligations

       The Guidance states DHHS’ intent that recipients of federal funds take reasonable

steps to ensure that LEP persons have “meaningful access” to programs and activities.

“Meaningful access” means that communications between the LEP patient and the

provider are effective in promoting mutual understanding. The following four factor test

will be used to evaluate whether a provider has a legal obligation to provide language

assistance and, if so, whether it is providing meaningful access:

       1. The number or proportion of LEP persons eligible or likely to be served by the
          program as determined by program-specific data along with census, school or
          other community-based date from the relevant service area.

       2. The frequency with which LEP individuals have or should have contact with
          the program.

       3. The nature and importance of the program, activity or service to people’s
          lives; and

       4. The resources available to the provider and costs. FN 20.

       In applying the four-factor test, providers should keep the following general

principles in mind. The greater the number or proportion of LEP persons served or

encountered in the eligible service population, the stronger the provider’s legal obligation

will be to provide language assistance services. The more frequent the contact with a

particular language group, the more likely it is that enhanced language services will be

needed in that language. The more important or urgent a provider’s service is, (e.g. a
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hospital emergency room for example,) the more important language services become to

help the LEP person and their families access them. Smaller providers with more limited

budgets are not expected to provide the same level of language assistance as larger

providers with larger budgets.

        If providers have an obligation to provide language assistance, there are two

major ways to discharge it:

        1.      Oral Language Services – Where oral interpretation is needed, providers
                should develop procedures for providing competent interpreters in a
                timely manner. When the timeliness of services is important and delay
                would result in the effective denial of a benefit, service or right, language
                assistance likely cannot be delayed.

        2.      Translation of Written Materials – An effective LEP policy ensures that
                vital written documents are translated into the language of each regularly
                encountered LEP group eligible to be served and/or likely to be affected
                by the recipient’s program. (Technical or linguistic competence can often
                be assured by back translation.) FN 21.


                 Guidelines for Providing Oral Interpretation Services to LEP

        Where oral interpretation is needed, providers should develop procedures for

providing competent interpreters in a timely manner. The DHHS Guidance describes

various options for providing oral language assistance, including hiring bilingual staff or

qualified staff interpreters, contracting for interpreters, using telephone interpreter lines,

and using community volunteers. The Guidance makes clear that while providers may

choose the means of communicating with the LEP patient, the result must be effective

communication. While LEP patients may elect to use an interpreter of their own

choosing, providers may not require LEP persons to use family members as interpreters.

FN. 22.
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       Irrespective of who is chosen to interpret, providers have a legal duty to assure

that a competent interpreter is provided at no cost to the patient. According to the DHHS

Guidance, competence requires more than self-identification as bilingual. Competency to

interpret does not always mean formal certification, although certification is helpful. At a

minimum, however, providers should insure that interpreters: demonstrate proficiency in

both languages; are bound by confidentiality and impartiality; have knowledge of

specialized medical terms/concepts; demonstrate the ability to convey information in both

languages accurately and avoid other roles such as that of counselor or legal advisor.

       The DHHS Guidance discourages the use of family members, friends and

especially children as interpreters. “Extra caution” should be taken when the LEP person

chooses to use a minor to interpret. FN 23. Providers are asked to verify and monitor the

competence and appropriateness of using the family member or friend to interpret,

particularly in situations involving administrative hearings, child or adult protective

investigations, life, health, safety or access to important benefits; or when credibility and

accuracy are important to protect the individual. Moreover, if the provider determines

that the family member or friend is not competent, the provider must provide competent

interpreter services in place of or, as a supplement to the LEP person’s interpreter.

       Legal Duty to Provide Written Translated Materials – Safe Harbors

       With respect to written translation, DHHS says it will determine compliance on a

case-by-case basis, taking into account the “totality of the circumstances” in light of the

four-factor test. However, the DHHS guidance makes clear that providers have a legal

obligation to translate “vital written documents” into the languages of the most frequently

encountered LEP populations eligible to receive its services. “Vital documents” may
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include: consent and complaint forms; intake forms with the potential for important

consequences; written notices of rights, denial, loss, or decreases in benefits or services;

notices of disciplinary action; applications to receive services or benefits; and notices

advising LEP persons of their right to receive free language assistance services. FN 24.

       Significantly, DHHS also designated two “safe harbors” that, if met, will provide

“strong evidence” of compliance with the provider’s written translation obligations:

       1) The [provider] provides written translations of “vital documents” (e.g. intake
          forms with the potential for important consequences, consent and complaint
          forms, eligibility and service notices) for each eligible LEP language group
          that constitutes five percent or 1,000, whichever is less of the population of
          persons eligible to be served or likely to be affected or encountered.
          Translation of other documents, if needed, can be provided orally; or

       2) If there are fewer than 50 persons in a language group that reaches the five
          percent trigger above, the recipient provides written notice in the primary
          language of the LEP language group of the right to receive competent oral
          interpretation of vital written materials, free of cost. FN 25

       Where providers have determined that they have a legal obligation to provide

language assistance, they should develop a written LEP policy/plan. Effective plans

typically have five elements:

   1. Identify LEP individuals who need language assistance.

   2. Provide appropriate language assistance measures.

   3. Train staff on LEP policies and procedures.

   4. Provide notice to LEP persons about available language assistance services at no
      charge.

   5. Monitor and update the plan – at a minimum once every three years. FN 26
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DHHS also notes that an effective plan will set clear goals and establish management

accountability for achieving them. Providers may also want to provide opportunities for

community input and planning throughout the process. The August 2003 LEP Guidance

notes that systems will evolve over time, and DHHS will look favorably on intermediate

steps that recipients take that are consistent with the Guidance.

         Office of Minority Health Cultural and Linguistic Access Standards

       Title VI is the only federal law that directly supports any aspect of cultural

competency in health care. As currently applied, Title VI only requires language

assistance for LEP patients. While the absence of language assistance is a major source of

racial and ethnic disparities in health care, many health care advocates, civil rights

organizations’ and others have encouraged HHS’ Office of Civil Rights to adopt

additional recommendations including guidance on cultural competence.

       In fact, HHS has already developed standards for culturally and linguistically

appropriate services in health care. The Office of Minority Health began the process of

developing national standards in 1997. On December 22, 2000, following a lengthy

period of public comment and collaboration, the HHS Office of Minority Health issued

National Standards on Culturally and Linguistically Appropriate Services (CLAS) in

Health Care. FN 27. The standards “are especially designed to address the needs of racial,

ethnic, and linguistic population groups that experience unequal access to health services

… [and] to contribute to the elimination of racial and ethnic health disparities”
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       The CLAS standards contain 14 standards, organized into three themes: culturally

competent care, language access services, and organizational supports for cultural

competence. The 14 standards can also be categorized by their stringency as mandates,

guidelines and recommendations. FN 28. Significantly, all of the mandates (standards 4-

7) deal specifically with language access. These standards are essentially restatements of

existing Title VI law for purposes of recipients of federal funds and provide as follows:

   Standard 4: Health care organizations must offer and provide language assistance
   services, including bilingual staff and interpreter services, 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: Health care organizations must 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: Health care organizations must assure the competence of language
   assistance provided to limited English proficient patients/consumers by interpreters
   and bilingual staff. Family and friends should not be used to provide interpretation
   services (except on request by the patient/consumer).

   Standard 7: Health care organizations must 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. FN 29.

       Aside from its language assistance mandates, the CLAS Standards also include

“guidelines and recommendations.” The guidelines are activities the Office of Minority

Health recommended for adoption by federal, state and national accrediting agencies. The

recommendations are suggestions the Office of Minority Health made for voluntary

adoption by health care organizations. The guidelines and recommendations are not

legally enforceable at this time, but they provide strategic direction for addressing some

of the causes of racial and ethnic disparities in health care.
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       The CLAS standards are independent of DOJ and OCR guidance documents.

However, because they address many of the same issues in great detail and are aimed at

health care providers, these standards are proving helpful to providers as they devise and

implement language access plans. Already, the CLAS standards are being used widely.

For instance, George Washington University Center for Health Service Research and

Policy has released and widely circulated model cultural competence purchasing

specifications for Medicaid managed care that are based on the CLAS standards. HHS

has also made cultural and linguistic competence the focus of Medicare+Choice quality

improvement projects and has encouraged health plans to use CLAS standards in

developing their projects. While aimed at health care organizations, the standards are also

presented as guidelines for accreditation and credentialing agencies such as the Joint

Commission on Accreditation of Healthcare Organizations, the National Committee on

Quality Assurance, and Peer Review Organizations. Finally, to the extent that the CLAS

standards represent the first national standards on culturally and linguistically appropriate

health care services, it could be argued that these standards represent a new community

standard for medical malpractice purposes.

                         State Laws Requiring Language Access

       According to a National Health Law Program survey, 43 states have laws that

address language access in health care settings. FN 30. At least 26 of these states and the

District of Columbia have enacted legislation requiring language assistance such as

interpreters and/or translated forms and other written materials for LEP patients. For

example, California statutes require interpreters or bilingual staff at general acute care

hospitals, county medical health programs and intermediate care facilities. FN 31. Idaho
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requires interpreters for the purpose of obtaining consent from patients in the state’s

Medical Assistance Program. Massachusetts enacted the “Emergency Room Interpreter

Bill,” effective as of July 1, 2001. The law requires all public and private acute care

hospitals to provide “competent interpreter services” for all emergency room services.

Rhode Island requires hospitals to provide a qualified interpreter when a bilingual

clinician is unavailable for all services given to every non-English speaking patient. This

law became effective January 1, 2002. FN 32.

       Many states have addressed linguistic access in their contracts with health care

providers. According to George Washington University’s Center for Health Services

Research and Policy, the majority of Medicaid managed care contracts or requests for

proposals require managed care organizations to provide materials in other languages (38

states), require services for persons whose primary language is not English (31 states) or

include a cultural competency requirement (27 states).

       A few states have used the law to implement broader cultural competency efforts.

Recently, California has acknowledged the need for cultural competency by adding state

administrative support for such efforts. A 1999 statute established an Office of

Multicultural Health. The Office’s duties included performing “an internal assessment of

cultural competency, and training of health care professionals to ensure more

linguistically and culturally competent care.” A 2000 California law established “The

Task Force on Culturally and Linguistically Competent Physicians and Dentists.” The

Task Force’s work has already generated additional legislation including a bill to provide

language and cross-cultural training to California physicians. FN 20
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       Other state approaches to cultural competency vary widely. Some laws use

linguistic access and cultural competency program requirements as licensing conditions.

Some require managed care organizations to develop written cultural competency plans

to provide effective health care services to members. Others establish service standards,

pilot programs, research priorities and specific programs aimed at particular racial and

ethnic communities.

             Federal Disabilities Laws Also Require Language Assistance

       Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities

Act also require federal financial recipients to provide language assistance services to

handicapped and/or disabled persons. These laws merit discussion here for three key

reasons. First, many immigrant and/or LEP patients are also disabled. (Recall the case of

the blind Hmong patient at the start of this chapter.) Second, laws requiring health care

organizations to provide language assistance services to the disabled predate more recent

regulations that require the provision of such services to LEP immigrants. As a result, the

courts may well look to disability law for guidance in interpreting them. Third, both sets

of laws are enforced by the same administrative agency – HHS’ Office of Civil Rights

(OCR). Many OCR settlement agreements with providers clearly have been influenced

by language assistance principles that first emerged from disability law.

       Section 504 of the Rehabilitation Act of 1973 requires federal financial recipients’

programs to be equally accessible to handicapped persons. DHHS regulations to Section

504 require provision of necessary auxiliary aids such as sign language interpreters to

ensure equal access to federal recipients programs. In particular, they state that:
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       A recipient…. that employs fifteen or more persons shall provide appropriate
       auxiliary aids to persons with impaired sensory, manual or speaking skills where
       necessary to afford such persons an equal opportunity to benefit from the service
       in question…. [A]uxiliary aids may include brailled and taped material,
       interpreters, and other aids for persons with impaired hearing or vision. FN 34

       Under Section 504 of the Rehabilitation Act of 1974, providers have a legal duty

to ensure “effective communication.” There is no distinction between inpatient and

outpatient treatment with respect to this duty. However, during hospitalization, effective

communication must be provided at “critical points” during the patient’s stay. Critical

points would include those points during which critical medical information is

communicated, such as admission, when explaining medical procedures, when an

informed consent is required for treatment and at discharge.

       Title III of the Americans with Disabilities Act (ADA) prohibits discrimination

against individuals with disabilities by places of public accommodation. Private health

care providers are considered places of public accommodation under the Act. Title III of

the ADA applies to all private health care providers regardless of the size of the office or

the number of employees. It applies to providers of both physical and mental health.

Hospitals, nursing homes, psychiatric and psychological services, offices of private

physicians, dentists, health maintenance organizations and health clinics are specifically

included among the health care providers covered by the ADA.

       Title III of the ADA prohibits health care professionals from discriminating

against individuals on the basis of disability. Generally, a health care professional

discriminates on the basis of disability if: (1) a sign language interpreter is necessary to

ensure effective communication between a patient and a health care professional; (2) the
                                                                                            21


patient has requested an interpreter, and (3) the health care professional refuses to provide

a qualified interpreter. FN 35.

       Under the ADA, health care providers have a legal duty to provide “effective

communication” to individuals who are blind, deaf or hard of hearing. Providers can

discharge that duty by using auxiliary aids and services that ensure that communication

with people who have vision or hearing loss is as effective as communication with others.

       To whom do providers have a duty of providing effective communication? Health

care providers must communicate effectively with customers, clients and other

individuals with disabilities who are seeking or receiving its services. FN 36.

Significantly, this legal duty may extend beyond the provider’s patients. For example, if

prenatal classes are offered as a service to both fathers and mothers, a father with a

hearing loss must be given auxiliary aids or services that offer him the same opportunity

to benefit from the classes as would other fathers. Similarly, a deaf parent of a hearing

child may require an auxiliary aid or service to participate in the child’s health care and to

give informed consent for the child’s medical treatment.

       Providers may use a variety of auxiliary aids and services to discharge their legal

duty to provide effective communication. Appropriate auxiliary aids and services include

equipment or services a deaf or hard or hearing person needs to understand aural

communication. For example, the rule includes qualified interpreters, assistive listening

devices, note-takers, written materials, television decoders and telecommunications

devices for the deaf. Health care providers may use their discretion to determine which

auxiliary aid or service is best for the patient so long as the chosen method produces

effective communication. FN 37
                                                                                          22


       In considering what constitutes effective communication under the ADA,

providers would be well advised not to rely on lip reading or written notes to

communicate with deaf and hard of hearing individuals. While some deaf and hard of

hearing individuals rely on lip reading for communication, very few rely on lip reading

alone for exchanges of important information. Significantly, forty to sixty percent of

English sounds look alike when spoken. On the average, even the best lip readers only

understand 25 percent of what is said to them, and many individuals understand far less.

Lip reading may be particularly difficult in medical settings where complex medical

terminology is used. Similarly, passing written notes to a deaf or hard of hearing

individual may also not constitute effective communication depending upon the reading

level of the individual. The reading level of some deaf individuals is much lower than

that of hearing people. Additionally, many deaf people consider American Sign

Language (ASL) to be their first language. Because the grammar and syntax of ASL

differ considerably from English, writing back and forth may not provide effective

communication between the deaf patient and the health care provider. Moreover, written

communications are often slow and cumbersome in a health care setting and information

that would otherwise be spoken may not be written. If a health care professional is

providing less information in writing than he or she would provide when speaking to a

hearing patient, that is an indication that writing is not an effective method of

communication.

       There are two exceptions to the ADA requirement to provide auxiliary aids and

services to disabled patients. FN 38. First, the ADA does not require the provision of any

auxiliary aid or service that would result in an “undue burden” on the provider. An undue
                                                                                            23


burden is an accommodation that would involve significant difficulty or expense to the

provider. Factors to consider include the cost of the aid and/or service, the overall

financial resources of the health care provider, the number of the provider’s employees,

legitimate and necessary safety requirements, the effect on the resources and operation of

the provider, and the difficulty of locating or providing the aid or service. Second, the

ADA does not require the provision of any auxiliary aid or service that would result in a

“fundamental alteration in the nature of the goods or services provided” by a health care

provider.

       Providers are obligated to provide a qualified interpreter when two conditions

apply: (1) when an interpreter is necessary to ensure effective communication and (2) the

patient has requested one. FN 39. Under the ADA regulations, a qualified interpreter is

defined as: “an interpreter who is able to interpret effectively, accurately, and impartially,

both receptively and expressively, using any necessary specialized vocabulary.”

       ADA regulations make plain that an interpreter should be present in all situations

in which the information exchanged is sufficiently lengthy or complex to require an

interpreter for effectively communication. Typical situations that would require an

interpreter’s presence would include: obtaining a patient’s medical history or informed

consent and permission for treatment; explaining a patient’s diagnosis, prognosis or

treatment plan, communicating prior to and after major medical procedures, providing

complex instructions regarding medication, explaining medical costs and insurance, and

explaining patient care upon discharge from a medical facility.
                                                                                               24


       Providers are the ultimate decision-makers of whether an interpreter is required –

not patients. The Department of Justice Technical Assistance Manual on the ADA

provides that while consultation with patients is “strongly encouraged” the “ultimate

decision as to what measures to take to ensure effective communication rests in the hands

of the physician or provider.” The power or authority to decide when an interpreter is

required is balanced by the legal obligation to “ensure that the method chosen results in

effective communication.”

       Health care providers may not charge a disabled patient for the costs of providing

auxiliary aids and services either directly or through the patient’s insurance carrier.

Further, health care providers must pay for an interpreter or auxiliary aid even where the

cost exceeds the provider’s charge for the appointment. This somewhat surprising result

can be explained as follows. A health care provider is expected to treat the costs of

providing auxiliary aids and services as part of the annual overhead costs of operating a

business. Accordingly, so long as the provision of the auxiliary aid does not impose an

undue burden or fundamentally alter the provider’s services, the provider must pay.

        An intriguing language access issue under the ADA is whether a patient can

bring their own interpreter to an office visit and then bill the health professional for the

cost. With respect to this situation, the Department of Justice Technical Assistance

Manual states:

       The physician is not obligated to comply with the unilateral determination by the
       patient that an interpreter is necessary. The physician must be given an
       opportunity to consult with the patient and make an independent assessment of
       what type of auxiliary aid, if any, is necessary to ensure effective communication.
       If the patient believes that the physician’s decision will not lead to effective
       communication, the patient may challenge the decision under Title III of the
       ADA.
                                                                                                25



       Section Two: Legal Issues Associated With Emerging Policy Initiatives

           There are a variety of policy initiatives currently being discussed to promote more

culturally and linguistically appropriate care. In particular, this section will discuss legal

issues associated with: (1) promoting the collection of data related to race, ethnicity and

primary language by federal, state and local governments and health care facilities; (2)

providing cross-cultural medical education to doctors and nurses; and (3) implementing a

comprehensive language access agenda.

                         Racial, Ethnic and Language Data Collection

           According to a report released in 2002 by the Institute of Medicine:

           Standardized data collection is critically important in the effort to understand and
           eliminate racial and ethnic disparities in health care. Data on patient race,
           ethnicity and primary language would allow for disentangling the factors that are
           associated with health care disparities, help plans monitor performance, ensure
           accountability to enrolled members and payers, improve patient choice, allow for
           evaluation and intervention programs, and help identify discriminatory practices.
           FN 40

           It is impossible to address racial and ethnic disparities in health status without

adequate data. Yet many health plans and hospitals seeking to improve care for minority

populations are often hindered because they do not collect data on the race, ethnicity or

primary language status of their members and patients. Even if they had the

organizational capacity to collect such data, many wonder whether they could do so

legally.

           The National Health Law Program (NHLP) examined this question and issued a

comprehensive report detailing its findings. FN 41. In essence, the NHLP reached three

major conclusions. First, the collection and reporting of data on race, ethnicity and

primary language is legal and authorized under Title VI of the Civil Rights Act of 1964.
                                                                                            26


(No federal statutes prohibit this collection (not even HIPAA) although very few require

it.) Second, federal data collection policy is not uniform at present. An increasing number

of federal policies emphasize the need for obtaining racial and ethnic data. Four sets of

federal health service regulations require racial and ethnic data collection and/or

reporting. These health services regulations include: Medicaid, SCHIP, End-Stage Renal

Disease Program, and SAMSHA. Third, no federal statutes require collection or reporting

of primary language data. However, MA managed care regulations require states to

inform health plans of the primary language of enrollees. FN 42.

       State laws pertaining to the collection of race and ethnicity data vary. Many states

are already collecting data on race, ethnicity and language of preference. While no state

statutes exist to bar hospitals from collecting race and ethnicity data, some states restrict

health plans from doing so. For example, both California and Maryland prohibit health

insurers from identifying or requesting an applicant’s race, color or national origin on an

insurance application or other documents that relate to an application for insurance. New

Hampshire and New Jersey have similar laws. The central concern behind such laws is

that insurers would use this data to discriminate against applicants of color or substitute

race and ethnicity for more legitimate underwriting criteria.

       The current status of race, ethnicity and primary language data collection

activities by health plans and hospitals could be summarized as follows.

       Data Collection by Health Plans – In 2003/04, the Robert Wood Johnson

Foundation and America’s Health Insurance Plans (AHIP) surveyed approximately 300

health insurance companies representing 55 percent of the total enrollment in managed

care plans. FN 43. Of those surveyed, 137 plans representing 88.1 million enrollees
                                                                                             27


responded. The study found that over one-half (53.5%) of enrollees are covered by plans

that collect data on race and ethnicity, with most insurance companies (74.1%) accessing

this information at enrollment. While most health plans are collecting some racial and

ethnic information on their enrollees, wide varieties of methods are used to do so. Most

plans collecting racial and ethnic information on enrollees use direct methods, such as

enrollment forms or satisfaction surveys, versus indirect methods to gather this

information. Most Medicaid health plans, 78.2 percent collect racial and ethnic identifiers

on enrollees as do many Medicare plans, 74.3 percent, while only one in two commercial

plans, 50.9 percent, were found to be collecting such data. FN 44.

       The Robert Wood Johnson Foundation/AHIP survey found that just over half of

enrollees (56.4%) are covered by plans that responded to the survey and collect data on

the primary language of their enrollees. Virtually 80.9% of responding plans which

collect language data do so during enrollment. The most common primary languages

spoken by enrollees (other than English) included: Spanish (96.7%), Chinese (76.2%),

Korean (72.8%), and Vietnamese (49.1%). FN 45.

       The most important reasons cited by health insurance plans for collecting these

data were to identify enrollees with risk factors for certain conditions, reduce disparities

identified in quality measures, assess variation in quality measures by racial and ethnic

groups, and identify the need for translation materials. In addition, plans indicated that

they use information on primary language to determine the need for interpreters and

translation of materials, such as summary plan descriptions, directions, health education

materials and benefit materials. FN 46.
                                                                                           28


       Data Collection By Hospitals - In 2003, the Commonwealth Foundation

contracted with the Health Research and Educational Trust to conduct a survey of

hospitals’ data collection practices with respect to the collection of patient race and

ethnicity data. FN 47. A total of 272 of 1,000 hospitals returned completed surveys

during a one-month time period (27% response rate). The majority of responding

hospitals (78%) reported collecting race and ethnicity data. No significant relationship

was found between system affiliation and the collection of data on race and ethnicity.

Teaching hospitals, urban hospitals, and hospitals in states with a mandate to collect

race/ethnicity data were significantly more likely to collect such data than other hospitals.

With respect to collection of data on patients’ primary language, the Commonwealth

study found that 39% of responding hospitals collected data on patients’ primary

language, 52% did not, 3 percent of respondents did not know and 6 percent did not

respond to the question. FN 48.

       Hospitals used race/ethnicity data for a variety of internal purposes including

ensuring the availability of interpreter services, quality improvement or disease

management programs, program/benefit design, marketing, actuarial purposes, and

underwriting. Of the 78 percent of hospitals indicating that they collected race/ethnicity

information, only 28% actually used it for quality improvement purposes. FN 49.

       While these results are impressive, they become less so under closer scrutiny.

While most hospitals reported that the primary source of information about race/ethnicity

is the patient or an admitting clerk obtaining information from the patient directly, 51

percent of responding hospitals reported that admitting clerks determined the patient’s

race/ethnicity based on observation. The researchers also asked hospitals to disclose the
                                                                                            29


percentage of cases where data on race or ethnicity were missing or unavailable.

Responses ranged from 0 to 100 percent. FN 50.

       In 2003, the same year as the Commonwealth study, the American Hospital

Association’s Annual Survey included two questions asking hospitals whether they

gather information on patient race, ethnicity, and primary language. FN 51. The survey

was sent to 6,000 hospitals nationwide and had an 80 percent response rate. The majority

of hospital respondents (78 % - exactly the same percentage as in the Commonwealth

study) reported collecting race and ethnicity data about patients. A smaller percentage

(59.7%) reported collecting data on patients’ primary language during their hospital stay.

       Most recently, a February 2006 study conducted by the National Public Health

and Hospital Institute (NPHHI) found that while approximately 78.4 percent of U.S.

hospitals collect information on patient race, fewer than one in five hospitals used such

information to improve patient care. FN 52. NPHHI researchers analyzed survey data

from 500 non-federal acute care hospitals on procedures for collecting information on

patients’ race, ethnicity and preferred language. The study found that more than two-

thirds of hospitals collect race information, 50.4 percent gathered ethnicity data and 50.2

percent record patients’ language preference. FN 53. However, less than 20 percent of

surveyed hospitals used collected information to assess and compare: quality of care,

utilization of health services, health outcomes or patient satisfaction rates among various

patient populations. FN 54. Significantly, despite growing national attention to the issue

of racial and ethnic disparities in health care, researchers found that more than half of

non-data collecting hospitals viewed patient information about race, ethnicity and

language as “unimportant.” FN 55.
                                                                                             30


                      Requiring Cross-Cultural Medical Education

       A 2004 paper in the Journal of the American Medical Association found that

among nearly 8,000 graduate medical educational programs surveyed in the United States

only 50.7 percent offered cultural competence training in 2003-04. FN 56. While this

figure was up from 35.7 percent in 2000-2001, the implications of this finding is that

nearly half of today’s medical students and virtually the entire complement of practicing

physicians in the U.S. have had little to no formal education on the clinical implications

of cultural and linguistic differences.

       Many resident physicians clearly do not feel prepared to provide cross-cultural

medical care. An article in the September 7, 2005 edition of JAMA assessed residents’

attitudes about cross-cultural care and preparedness to deliver quality care to diverse

patient populations. FN 57. The authors mailed a survey to 3,435 resident physicians in

their final year of training at US academic health centers and obtained a 60% response

rate. Substantial percentages of respondents believed that they were not prepared to

provide specific aspects of cross-cultural care, including caring for patients whose health

beliefs were at odds with Western medicine (25%), new immigrants (25%), and patients

whose health beliefs affect treatment (20%).

       A series of recent and dramatic changes, however, will assure that future

physicians will receive training on cross-cultural medicine. In 2000, the CLAS Standards

strongly encouraged health care organizations to train staff “at all levels and across all

disciplines” on “culturally and linguistically appropriate service delivery.” FN 58. In

2001, the Accreditation Council of Graduate Medical Education (ACGME) published

recommended cultural competence standards. FN 59. Most significantly, in 2002, the
                                                                                            31


prestigious Institute of Medicine (IOM) published Unequal Treatment, a report

documenting the extensiveness of racial and ethnic disparities in the quality of medicine

throughout the United States. As one important part of remedying these disparities, the

IOM suggested that cross cultural curricula be part of the training of clinicians from

undergraduate to continuing medical education. Following pressure from the ACGME

and the IOM, the Liaison Committee on Medical Education (LCME), in 2004, announced

its cultural competence accreditation standard which requires all medical schools in the

United States to integrate cultural competence into their curricula. The American

Association of Medical Colleges followed up on the LCME announcement by creating a

tool to assist medical schools to evaluate the effectiveness of their cultural competence

training. FN 60.

               Apart from changes in academia, significant regulatory and legislative

changes have also encouraged cross-cultural medical training. In 2004, the New York

State Department of Health modified its $33 million per year Graduate Medical

Education Reform Incentive Pool to reward residency programs that provide eight hours

of cultural competency training to at least 80 percent of residents. FN 61. This incentive

approach worked so well that 66 of the 104 residency programs in New York State

proposed new cultural competence curricula in the first year of the program. In May of

2005, New Jersey became the first state in the United States to require all physicians, as a

condition of continuing licensure to complete at least some training in cross-cultural

medical care. FN 62. Following closely on New Jersey’s heels, the California Assembly,

in October of 2005, passed AB 1195, which requires that all continuing medical

education courses in California include curricula on cultural and linguistic understanding.
                                                                                             32


As all California physicians must take 100 hours of CME credits every four years, this

measure insures that every practicing California physician will receive cultural

competence training on an ongoing basis. FN 63. Several other states including Illinois,

New York and Arizona were considering similar legislation at the time that this book

went to print.

                 Implementing a Comprehensive Language Access Agenda

       If the United States sought a comprehensive solution to the language access

problem in health care, it would address six critical issues. First, federal and state

governments should eliminate unnecessary barriers to participation in critical health

programs for immigrant populations. Second, DHHS should require providers and states

to collect data on race, ethnicity and language of preference. Third, federal and state

governments, health plans and hospitals must find ways to pay for qualified interpreters

for LEP patients as part of the clinical encounter. Fourth, Congress should reestablish a

private right of action for disparate impact discrimination under Title VI. Fifth, federal

and state civil rights enforcement agencies should receive more budgetary support to

effectively enforce existing laws. Sixth, accreditation agencies such as JCAHO and

NCQA should examine health plans and hospitals language access programs as an

ongoing condition of accreditation. We will discuss each of these issues in turn.
                                                                                           33


            Eliminate Unnecessary Barriers to Participating in Public Programs

       Identifying barriers that prevent or inhibit immigrants from seeking health care is

key to reducing health care disparities among this growing segment of the American

population. While the language barrier is likely the most frequently encountered

challenge that immigrants face in obtaining high quality care, several other factors are

also at work. It is hard to overestimate the role that fear plays in immigrants’ decision to

seek health care. Fear prevents many lawful American citizens and legal immigrants from

applying for public aid such as Medicaid or State Children’s Health Insurance Program

benefits. Immigrants are fearful for at least two reasons. First, some legal immigrants fear

that accessing public benefits or uncompensated care will jeopardize their pending

application for citizenship. Second, immigrants fear that accessing such services may

force them to disclose information about the immigration status of undocumented

household members. FN 64

       Sometimes immigrants’ fears are unfounded. For example, any legal immigrant

can access Medicaid or SCHIP benefits without jeopardizing his or her application for

citizenship. But many immigrants’ fears are legitimate and well-founded. Many

government programs and policies sometimes intentionally, sometimes not, have the

effect of deterring immigrant participation. For example, a well-known Social Security

Administration program kept many immigrants from accessing needed benefits as a result

of one irrelevant question in the application process. FN 65. The Enumeration at Birth

program is designed to obtain social security numbers for infants at the time of their birth.

Obtaining social security numbers at birth helps babies qualify immediately for Medicaid

benefits. However, the program’s application form asked parents to provide their own
                                                                                            34


social security numbers in order for the baby to receive one. Many immigrant parents of

children born in the U.S. do not have Social Security numbers. Although their children

were clearly eligible to receive a social security number, this meaningless question kept

many parents from applying for a social security card for their children. In turn, without a

social security card, immigrant children were prevented or delayed from accessing

essential health services that are vitally necessary to newborn and pediatric health. The

Social Security Administration has since corrected this problem.

       In other cases, however, the motives of government policymakers are not nearly

so benign. OCR initiated an investigation of the state of Georgia upon determining that

Georgia’s application for Medicaid benefits required all applicants to certify under

penalty of perjury that all members of the household were legal residents of the United

States. As former OCR Director Thomas Perez observed: “[t]he only relevant

immigration question for Medicaid purposes was the immigration status of the applicant

him or herself.” FN 66. The obvious effect of asking that question was to keep eligible

applicants from applying, out of fear that the INS would discover undocumented family

members. OCR’s investigation revealed that Georgia’s policies and practices not only

deterred eligible applicants; it violated Title VI because it had an impermissible and

disproportionate impact based on applicants’ national origin. FN 67. Georgia’s

application form has since been redesigned.

       Based on its experience in Georgia, OCR reviewed the application forms for

public benefits for all states and found many policies, practices, procedures and questions

that had the effect of deterring eligible immigrants and citizens from seeking important

benefits. FN 68. State officials and immigrant advocates would do well to continue to
                                                                                             35


examine, challenge and eliminate these barriers in order to maximize participation in

Medicaid and SCHIP, reduce disparities and improve immigrant health status.

     Mandate the Collection of Data on Race, Ethnicity and Primary Language

        Despite the fact that we now live in the Information Age replete, for providers,

with the advent of the electronic patient record, the sad fact is that many, if not, most

health care organizations do not know who their patients are demographically. Without

such knowledge it will continue to be impossible to eliminate racial, ethnic and linguistic

disparities in health status. While at first blush it might appear that the private sector

already has this problem well in hand given the growing attention to collecting race,

ethnicity and primary language data, the reality could not be further from the truth. After

an extensive examination of the hospital industry’s efforts to collect just such data,

researchers from the Health Research and Educational Trust concluded that there was a

tremendous amount of “both intra-organizational and inter-organizational inconsistency.”

FN 69. While the researchers acknowledged that hospitals displayed a “theoretical

commitment to collecting race/ethnicity/primary language information and a basic

understanding of its importance,” what was lacking was consistent operational policies

and practices to make it happen. Given that insight, the researchers concluded that: “the

race, ethnicity, and language data that hospitals currently collect are not necessarily

valid or reliable and the data collection is ineffective and inefficient.” (emphasis

supplied.) FN 70.

        The Department of Health and Human Services already has the authority under

existing Title VI regulations to require providers and states to collect data on race,

ethnicity and primary language. However, according to former OCR Director Thomas
                                                                                           36


Perez, HHS does not have the legal obligation under the regulations to require the

collection of data on race, ethnicity or primary language. FN 71. Consequently, federal

action is needed. FN 72. The current data collection system within and between states is

patchwork at best and shameful at worst. Congress must act to remedy this situation.

        Fortunately, there appears to be growing, bipartisan support in Congress for just

such legislation. In October 2005, Senators Joseph Lieberman (D-CT) and Orrin Hatch

(R-UT) introduced ground-breaking legislation that addresses two serious problems

plaguing our nation’s healthcare system: inconsistent health care quality and healthcare

disparities. Their bill, called “FairCare” would help alleviate both problems by

standardizing data collection and offering new incentives for healthcare providers to raise

quality standards for all patients. Specifically, FairCare would:

       Create a uniform method for collecting demographic information from patients in
        federally funded health programs to provide a foundation for further research on
        health care quality and disparities;

       Establish a federal grant program within the Department of Health and Human
        Services for data collection, quality improvement and disparity reduction to
        ensure that hospitals and community health centers have the resources needed to
        engage in the structural adjustments necessary to expand data collection. FN 73

           Find Public and Private Means to Pay for Qualified Interpreters

        How to pay for the provision of language access services is one of the core issues

at the heart of the debate over how best to end racial and ethnic disparities in health care.

Many observers have commented that eliminating linguistic barriers to care is one of the

low hanging fruit in the disparities battle. But the issue remains fiercely divisive

politically and threatens to stay that way.

        In 2000, shortly before leaving the White House, President Clinton issued

Executive Order 13166. Promising to continue the progress begun by the Civil Rights Act
                                                                                            37


of 1964, Clinton ordered all federal agencies to issue regulations that would end

discrimination against limited English proficient persons by recipients of federal funds.

Applying this broad order in the health care context, DHHS issued standards that year

requiring that providers deliver “competent” oral interpretation and written translation

services to Limited English Proficient patients at no cost to them. The standards harshly

criticized the use of family members and friends as interpreters. Entirely missing from the

standards was any mention of who should pay for language access questions.

       Shortly after the election of President Bush, the Republican Congress asked the

Office of Management and Budget to conduct an analysis of the costs and benefits of

implementing Executive Order 13166. To facilitate its work, OMB issued a general

request for cost-benefit information from all affected constituencies. Support for EO

13166 poured in from pro-patient and pro-immigrant groups, led by the National Health

Law Program and the National Council on Interpretation in Health Care. Opposition to

EO 13166 was led by the American Medical Association.

       In its letter to the Office of Management and Budget on the subject, the AMA

stated that it was “fully committed to the importance of achieving greater access for LEP

patients.” “Nevertheless”, the AMA said:

       We are strongly opposed to allowing the burden of funding written and oral
       interpretation services for LEP patients to fall on physicians, as would occur
       under OCR’s requirements. It is extremely inequitable to require physicians to
       fund written and oral interpretation services. The cost of hiring an interpreter,
       which our state survey shows can greatly vary between $30 and $400, is
       significantly higher than the payment for a Medicaid office visit, which in many
       states ranges between $30 and $50. Physicians would sustain severe economic
       losses if forced to cover the cost of interpretation services and thus may no longer
       be able to provide services to LEP patients…..Accordingly, the OCR
       requirements could reduce, not strengthen access to health care services for LEP
       patients. FN 74.
                                                                                               38


       The OMB report was issued on March 14, 2002. FN 75. Making the health care

system more accessible for LEP persons, it concluded, would produce many benefits

including: “increased patient satisfaction, decreased medical costs, improved health,

sufficient patient confidentiality in medical procedures and true informed consent.”

FN 76. The OMB was unable to evaluate the actual costs of implementing the Executive

Order due to insufficient information about the cost of providing language services.

However, using data from emergency room and inpatient hospital visits and outpatient

physician and dental visits, it estimated that language services would cost an extra 0.5

percent of the average cost per visit. FN 77.

       Following the publication of the OMB report, DHHS re-issued its LEP Policy

Guidance. The new Guidance adopted a much more permissive stance towards the use of

family members and friends as interpreters, seeing them as a comfort issue for patients

and a cost-savings device for providers.

       In light of these developments, what should be done and by whom to pay the cost

of language access services? As a series of first principles, it may be easiest to first

indicate who should not pay for language access services. Immigrants and their families

have the least ability to pay of any of the major constituent groups and should not be

expected to pay for services to which they are entitled by right. Similarly, it is true that

two-thirds of physician offices around the United States are small businesses. For them to

assume the entire burden of language access services by themselves would clearly be

onerous and likely counter-productive. FN 78.

       There are some federal funds available for medical interpreter services. FN 79.

States can obtain federal matching funds from Medicaid and SCHIP to pay for language
                                                                                              39


access services if they put up their own Medicaid dollars first. At least nine states have

already done so – Hawaii, Idaho, Maine, Massachusetts, Minnesota, Montana, New

Hampshire, Utah, and Washington. FN 80. More states should follow their lead.

However, with many states continuing to face severe budget deficits, this prospect may

not be a realistic long-term vehicle for resolving the language access crisis.

       As a result, the best situated actors for absorbing the costs of providing language

access services are health plans and hospitals. Significantly, each has ample reason and

incentive to invest in language access improvements.

       Health plans should invest in language access services in an attempt to keep their

members healthier, thereby deterring higher medical costs. Today, with language barriers

to care so imposing, many immigrants, particularly Hispanic immigrants, put off medical

care until their medical needs are acute. By providing interpreters and encouraging more

preventive use of the health care system, insurers could assist enrollees to live healthier

lives and avoid the high cost of acute episodes.

       There is some evidence that exactly this kind of far-reaching approach can work.

Elizabeth Jacobs, MD, an emergency physician at Cook County Hospital in Chicago has

studied the impact of interpreter services on care. When Harvard Pilgrim Health Care

Inc., a large insurer based in Wellesley, Massachusetts put in place interpreter services

for its Spanish- and Portuguese-speaking patients, Dr. Jacobs compared the gains in

clinical and preventive services use with that of the general population. FN 81. Her

findings showed that the use of interpreters helped close the gap in rates of fecal occult

blood testing, rectal exams and flu immunization between English- and non-English

speaking patients, and boosted the number of prescriptions written and filled. FN 82.
                                                                                              40


Dr. Jacobs also looked at the expense of providing interpreter services. When the cost

was spread out over the entire HMO population, the plan paid only $2.40 more per

person per year. And Dr. Jacobs believes that if total patient treatment costs could be

accurately measured, plans might find savings accruing in other areas. FN 83.

       It is also in hospitals’ self-interest to invest in language access services. Today,

many immigrants use hospital emergency rooms inappropriately because they have not

been educated on how best to use the American health care system. Since emergency care

is the most cost-intensive form of medicine, this creates extremely high costs for

hospitals and substantially increases the fiscal impact of uncompensated care because

many immigrant patients have no insurance and have not applied for coverage by public

programs. Investing in language access services could help immigrants learn how to use

the American health care system more effectively and efficiently. By improving

immigrants’ use of primary care resources, hospitals’ investment in language access

services could also help to reduce the costs of uncompensated care.

       Another reason why hospitals should invest in language access services is the fact

that, most LEP patients link their overall perceptions about quality of care with the

quality of their interpreter. FN 84. Research has highlighted that patients with limited

English proficiency (LEP) have more difficulty communicating with health care

providers and are less satisfied with the care they receive than those who are proficient in

English. A recent study published in the Journal of General Internal Medicine used a

survey of 2715 LEP Chinese and Vietnamese immigrant adults who received care at 11

community-based health centers across the U.S. to highlight that those who rated their

interpreters highly ("excellent" or "very good") were more likely to rate the health care
                                                                                               41


they received highly. FN 85. In sum, the perceived quality of the interpreter is strongly

associated with patients' assessments of quality of care overall.

       Even if more funding were provided to pay for the costs of interpreters however,

there is no guarantee that language access would improve. That is because physicians

don’t always use interpreters even when they are available and affordable. The Alameda

Alliance for Health, a nonprofit health plan that primarily serves low-income people in

Alameda County, California has paid the full cost of professional medical interpreters

since its inception in 1996. Yet use of interpreters was still low, according to Kelvin

Quan, chief financial officer and general counsel for the plan. Quan believes that

physicians have no incentives to use interpreters because physicians are largely

compensated on a production basis where spending more time with immigrant patients

and their interpreters translates into lost revenue for the provider. To remedy this

problem, Alameda along with many other health plans, has set up a system where

physicians receive extra compensation when dealing with LEP patients through

interpreters. To Quan, the program is not intended so much as an incentive to use

interpreters as it is a realistic recognition of the additional time that LEP encounters are

likely to take. FN 86.

       To improve language access then, will take more than money. It will require a

change in physician behavior. This is so because most physicians have never received

any formal training on how to interact with an LEP patient through an interpreter or how

to practice cross-cultural medicine. Learning these techniques can save busy clinicians

time and reduce interpretation and translation costs for hospitals and health plans.
                                                                                          42


        Immigrant communities should be expected to do their share as well. Many such

communities have found ingenious ways to help providers and help themselves by

creating community-based language banks where members of the community receive

special training in medical interpreting.

            Allow Immigrants to Sue for Disparate Impact Discrimination

        Congress should act to restore the status quo that existed prior to the Supreme

Court’s decision in Sandoval by passing legislation to reestablish a private right of action

for disparate impact discrimination under the Title VI regulation. FN 87. Passing such

legislation would reinvigorate many non-profit advocacy groups and place additional

pressure on providers to comply with the law. Failing to restore individuals’ pre-

Sandoval rights will place even more pressure on an already over-burdened and under-

funded OCR to pursue disparate impact cases. Reestablishing this right will not open a

floodgate of litigation since providing disparate impact discrimination is extremely

difficult to prove from an evidentiary point of view. Consequently, there are sound policy

reasons for restoring this basic right.

              Increase Budgetary Support For The Office of Civil Rights

        The Office for Civil Rights at HHS is the lead federal agency combating

discrimination in health care. The first budget of HHS OCR was $22 million in fiscal

year 1980, which supported approximately 550 employees. FN 88. In the ensuing twenty

plus years since then, OCR’s budget has essentially remained stagnant. It’s budget for

fiscal year 2000 was also $22 million, which supported only 215 employees. As a result,

it has been difficult for OCR to carry out its mission in a fully effective manner.
                                                                                              43


       Congress should increase budgetary support for the DHHS Office of Civil Rights

for two critical reasons. First, despite the resource limitations on its effectiveness, OCR

has established a solid body of cases that document continuing instances of

discriminatory activity, in violation of Title VI. There is no question that its work

continues to be critically necessary. Second, budgetary support for OCR should be

increased because its enforcement responsibilities have increased dramatically with the

passage of new civil rights laws, such as the Americans with Disabilities Act. FN 89.

       If additional Congressional budgetary support cannot be obtained, then DHHS

should internally redirect some of the money spent for other agency purposes on civil

rights enforcement. HHS spends hundreds of millions of dollars addressing racial and

ethnic disparities in health care, OCR should have a greater share of those dollars. FN 90.

  Accreditation Agencies Should Tie Language Access to Patient Safety Concerns

        There is ample evidence that ineffective language access systems pose

compelling patient safety concerns. Both NCQA and JCAHO should place greater

emphasis on the effectiveness of health plans and hospitals language access systems as a

critical determinant of quality of care and patient safety. If accreditation agencies placed

greater emphasis on the importance of language access systems, hospitals and health

plans would also be forced to accord them a higher level of priority.

       In fact, JCAHO is already in the process of taking three key initial steps towards

this end. First, the Joint Commission recently approved a new requirement for the

inclusion of language and communication needs in medical records (Standard IM.6.20).

FN 91. The new requirement is one of a list of information requirements such as patient

name, gender, and age. The hope is that language and communication needs will be
                                                                                            44


identified in the record in a place that will allow the information to be easily shared

across the continuum of care.

       Second, JCAHO in partnership with the Commonwealth Fund, has commissioned

a study on “Understanding Adverse Events in Minority Patients With LEP.” FN 92. The

purpose of the project is to learn more about the epidemiology of adverse events

attributed to patient-provider communication problems due to language barriers and to

identify quality improvement opportunities for inpatients with limited English

proficiency (LEP). De-identified adverse event data were collected from participating

hospitals through their existing incident reporting systems, stratified by English-speaking

and LEP patients. These data are being examined using the Joint Commission’s Patient

Safety Event Taxonomy as an analytical framework, and events are deconstructed to

identify causative and contributive factors related to communication and language. This

project will provide important information on linguistically appropriate patient care for

policymakers, researchers, and clinicians. FN 93.

       Finally, in January 2004, JCAHO launched its Hospitals, Language, and Culture

program. FN 94. The program is a two and one-half year project funded by The

California Endowment that will gather data on a sample of hospitals to assess their

capacity to address issues of language and culture that impact the quality and safety of

patient care. According to JCAHO, the focus of this project is not to develop new

standards and set new expectations for accredited organizations but instead to better

understand what the current state of practice is and develop recommendations. JCAHO

also hopes to explore emerging practices that can be shared with the field and replicated.

FN. 95.
                                                                                     45




                              FOOTNOTES
1. California hospitals may face possible tort liability if a Limited English Proficient
   (LEP) patient files a medical malpractice claim in an instance where a lack of
   communication creates a damaging barrier to adequate care, for example in the
   case of a lack of informed consent. The maximum amount of damages for non-
   economic losses in medical malpractice actions is $250,000. See Cal. Civil Code
   3333.2. See also Harsham, P. A., “A Misunderstood Word Worth $71 Million,”
   Med. Econ. 1984; June: 289-292 (Reporting on a successful, multi-million dollar
   lawsuit over a single misinterpreted word – “intoxicado” in a hospital emergency
   department. In that case, a para-medic interpreted a boy’s utterance of the word
   “intoxicado” as “intoxicated,” instead of its intended meaning, which is
   “nauseated.” For several days, the boy was worked up for drug abuse.
   Subsequently, he was found to have damage caused by a ruptured brain aneurysm.
   The patient ended up a quadriplegic and was awarded $71 million in a
   malpractice case.)

2. Perez, Thomas E., “The Civil Rights Dimension of Racial and Ethnic Disparities
   in Health Status,” Chapter contained in “Unequal Treatment: Confronting Racial
   and Ethnic Disparities in Health Care” Institute of Medicine (2002) pp 626-663 at
   p. 639. Author’s Note: Thomas E. Perez is the Former Director of the Office for
   Civil Rights, U.S. Department of Health and Human Services

3. Marcum, D., “Soul Searching Fresno Woman Returns to the Jail Cell Where She
   Was Illegally Detained to Claim Her Spirit”, THE FRESNO BEE, April 23, 2001,
   page A1. See also: Hongkham Souvannarath v. David Hadden et. al., 116
   Cal.Rptr.2d 7 (Cal. App.4 Dist. 2002)

4. Perez op.cit. at p. 641.

5. Simkins v. Moses H. Cone Mem’l Hospital, 323 F.2d 959 (4th Cir. 1963)

6. Pub. L. No. 88-352, Title VI, 601, 78 Stat. 241, 252 (1964) Codified as amended
   at 42 U.S.C. 2000d (2001)

7. 45 C.F.R. 80.3(b)(2) (2000).

8. Lau v. Nichols, 414 U.S. 563 (1974)

9. Id. at p. 566

10. Id. at 568-569
                                                                                       46


11. 45 Fed. Reg. 82,972 (Dec. 17, 1980) (Department of Health and Human Services
    Notice)

12. Alexander v. Sandoval, 121 S.Ct. 1511 (2001)


13. Perez, op. cit. at p. 641 FN 29. Thomas Perez, the Former Director of DHHS’
    OCR makes an important observation on this point. Despite the Supreme Court’s
    ruling in Sandoval, Perez maintains that private plaintiffs may still be able to meet
    the higher intent standard in language access cases. By virtue of the OCR
    Guidance on National Origin Discrimination Against LEP issued in 2003, Perez
    suggests that health care providers have been put on notice of their obligation
    under Title VI to ensure meaningful access for people with limited English skills.
    As a result, he says, “a private plaintiff can argue that the failure to comply with a
    civil rights obligation that has been clearly communicated amounts to intentional
    discrimination under Title VI.” Additionally, a number of states have laws and/or
    regulations requiring the provision of language assistance services. Private
    plaintiffs can also avail themselves of these provisions even in the aftermath of
    Sandoval.

14. Numerous authors have commented on OCR’s limited effectiveness. See, for
    example, Perez at p. 656. See also: Villazor, R. C., “Community Lawyering: An
    Approach to Addressing Inequalities in Access to Health Care for Poor, Of Color
    and Immigrant Communities”, Legislation and Public Policy, Vol. 8, pp. 35-62 at
    pp. 47-48 and especially FN 85; 1 U.S. Comm’n on Civil Rights, The Health Care
    Challenge: Acknowledging Disparity, Confronting Discrimination, and Ensuring
    Equality 1, 189-200 (1999) (reporting that OCR had failed to effectively enforce
    Title VI); Perkins, J., Race Discrimination in America’s Health Care System, 27
    Clearinghouse Rev. 371, 380 (Special Issue 1993) (questioning efficiency of OCR
    complaint process.)

15. Perez, op. cit. p. 640. Ironically, as Perez notes, the large number of OCR
    complaints may actually understate the true extent of the problem as many
    immigrants are reluctant to file complaints.

16. Id. at 639.

17. Id. at 641.

18. Perkins, J., Ensuring Linguistic Access in Health Care Settings: An Overview of
    Current Legal Rights and Responsibilities, National Health Law Program (August
    2003) at pp. 13-14.
                                                                                   47


19. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, GUIDANCE
    TO FEDERAL FINANCIAL ASSISTANCE RECIPIENTS REGARDING
    TITLE VI PROHIBITION AGAINST NATIONAL ORIGIN
    DISCRIMINATION AFFECTING LIMITED ENGLISH PROFICIENT
    PERSONS. Volume 68 Federal Register Number 153, Friday, August 8, 2003 at
    pp. 47311-47323.

20. Id. at 47314.

21. Id. at 47315.

22. Id. at 47317.

23. Id. at 47318. The use of family members and friends as medical interpreters is
    highly problematic and can compromise many aspects of patient care. Ad hoc
    interpreters are more likely than professional interpreters to commit errors of
    potential clinical consequences. While family members and friends may know
    more English than the patient, they may not understand medical terminology.
    (One case that exemplified this situation occurred in Minneapolis, Minnesota
    where a 14 year-old Hmong girl tried to interpret for an older family member. The
    attending physician explained to the girl that further X-rays were needed, but the
    girl misunderstood and explained to the family that the physicians were planning
    to “microwave the patient.” Using family members or friends as interpreters risks
    breaching patient privacy and confidentiality. Patients may be less inclined to
    reveal sensitive personal or medical information when relatives or friends are
    present. Using minor children to interpret upsets the traditional family hierarchy
    and can subject children to information that they are not emotionally or
    intellectually prepared to handle.

24. Id. at 47319

25. Id.

26. Id. at 47319-47320.

27. NATIONAL STANDARDS FOR CULTURALLY AND LINGUISTICALLY
    APPROPRIATE SERVICES IN HEALTH CARE. FINAL REPORT, OFFICE
    OF MINORITY HEALTH, U.S. DEPARTMENT OF HEALTH AND HUMAN
    SERVICES, March, 2001. The final standards were published in the Federal
    Register on December 22, 2000 (Volume 65, Number 247, Pages 80865-80879).
    Complete information about the project can be found at www.omhrc.gov/CLAS,

28. CLAS Standards Final Report, at p. 3.

29. Id. at pp. 7-13
                                                                                        48


30. Perkins, J., Ensuring Linguistic Access in Health Care Settings: An Overview of
    Current Legal Rights and Responsibilities, National Health Law Program (August
    2003) at p. 16. (Updated January 2006)

31. Ikemoto, L., “Racial Disparities in Health Care and Cultural Competency”, 48 St.
    Louis Univ. Law Journal 111, 75-130. See especially FNs 229-231 at p. 111
    describing applicable California law.

32. Id. at pp. 111-113.

33. Id. at p. 113.

34. 45 C.F.R. 84.52(d)

35. Arizona Center for Disability Law, “The Duty of Health Care Professionals to
    Provide Sign Language Interpreters: A Self-Advocacy Guide,” Revised 09/03/01
    at p. 1.

36. 56 Fed. Reg. 35544 (July 26, 1991) at 35565.

37. Id. at 35566-67.

38. 28 C.F.R. 36.303(a). The ADA does not require the provision f any auxiliary aid
    or service that would result in an undue burden or in a fundamental alteration in
    the nature of the goods or services provided by a health care provider. However,
    the health care provider still has the duty to furnish an alternative auxiliary aid or
    service that would not result in a fundamental alteration or undue burden. See,
    e.g. 28 C.F.R. 36.303.

39. Arizona Center for Disability Law, op. cit. at p.2.

40. Institute of Medicine, Unequal Treatment: Confronting Racial and Ethnic
    Disparities in Healthcare (Washington D.C.; National Academy Press, 2003)

41. Perot, R. and Youdelman, M., Racial, Ethnic, and Primary Language Data
    Collection in the Health Care System: An Assessment of Federal Policies and
    Practices (New York; The National Health Law Program funding provided by the
    Commonwealth Fund, September 2001)

42. Id.

43. America’s Health Insurance Plans, “Collection of Racial and Ethnic Data By
    Health Plans to Address Disparities: Final Summary Report” (The Robert Wood
    Johnson Foundation, June, 2004)

44. Id.
                                                                                        49



45. Id.

46. Id.

47. Health Research and Education Trust, Hasnain-Wynia, R., Pierce, D. and Pittman,
    M., Who, When and How: The Current State of Race, Ethnicity, and Primary
    Language Data Collection in Hospitals (The Commonwealth Fund, May, 2004)

48. Id.

49. Id.

50. Id.

51. Id. The study by the Commonwealth Fund also summarized the results of the
    American Hospital Association survey of its members.

52. National Public Health and Hospital Institute, Regenstein M., and Sickler, D.,
    Race, Ethnicity, and Language of Patients: Hospital Practices Regarding
    Collection of Information to Address Disparities in Health Care (The Robert
    Wood Johnson Foundation, January, 2006)

53. Id. at pp. 4-5.

54. Id. at pp. 8-9.

55. Id. at p. 11. According to the study, “[f]or hospitals that do not collect [race] data,
    the most common barrier by far was the sense that there was no need to collect the
    information. More than half of the hospitals that do not collect this information
    identified this as a barrier to collection – more than three times the rate seen
    among hospitals that collect this information.”

56. Brotherton, S.E., Rockey, P.H. and Etzel, S.I., “U.S. Graduate Medical Education:
    2003-2004,” Journal of the American Medical Association 292, no. 9 (2004):
    1032-1037.

57. Weissman, J.S.,; Betancourt, J.R. et. al. “Resident Physicians’ Preparedness to
    Provide Cross-Cultural Care” Journal of the American Medical Association
    (2005); 294: 1058-1067.
                                                                                        50



58. See note 27. CLAS Standard number three states: “Health care organizations
    should ensure that staff at all levels and across all disciplines receive ongoing
    education and training in culturally and linguistically appropriate service
    delivery.” The developers of the CLAS Standards have stated their belief that this
    standard was one of the most important of the fourteen standards. In one of the
    preliminary drafts of the CLAS standards it was suggested that providers receive
    up to 13 hours of training on the provision of culturally competent care. When
    health care industry representatives balked at the time and cost involved in
    implementing this recommendation, the recommendation itself was allowed to
    remain but all suggestions of a required amount of time spent on cultural
    competence training were omitted.

59. See generally, Betancourt, J., Green, A., Carrillo, E. and Park, E., “Cultural
    Competence and Health Care Disparities: Key Perspectives and Trends” Health
    Affairs, April, 2005, 499-505.

60. Id.

61. New York State Department of Health, “Graduate Medical Education Reform
    Incentive Pool,” December, 2004, www.health.state.ny.us/nysdoh/gme/main.htm
    (27 December 2004)

62. Adams D., “Cultural Competency Now Law In New Jersey,” American Medical
    News, April 25, 2005. See also, New Jersey State Legislature, S144,
    www.njleg.state.nj.us/2004/Bills/SO500/144_[1.htm 21 January 2005)

63. News Release: “NCLR Welcomes Passage of Cultural and Linguistic
    Competency Training Bill For Physicians in California” October 6, 2005,
    National Council of La Raza, http:www.nclr.org/content/news/detail/34227/

64. Perez, op. cit. at 648.

65. Id.

66. Id.

67. Id.

68. Id.

69. Health Education and Research Trust, op. cit. at 12. See FN 47 for full citation.

70. Id.

71. Perez, op. cit. at 650.
                                                                                     51



72. It is worth noting that CLAS Standard 10 encourages the collection of race,
    ethnicity, and spoken and written language. However, this Standard is a
    recommendation, not a mandate and does not have the force of law. CLAS
    Standard 10 states: “Health care organizations should ensure that data on the
    individual’s race, ethnicity, and spoken and written language are collected in
    health records, integrated into the organization’s management information
    systems and periodically updated.

73. Press Release, Summary of FairCare Legislation, Office of Senator Joseph
    Lieberman (D-CT), October 27, 2005

74. See Letter from Robert W. Gilmore, M.D., American Medical Association, to
    Brenda Aguilar, Office of Management and Budget (Dec. 21, 2001) available at
    http://www.ama.org.

75. Office of Management and Budget, Report to Congress, Assessment of the Total
    Benefits and Costs of Implementing Executive Order 13166: Improving Access to
    Services for Persons with Limited English Proficiency (Mar. 14, 2002), available
    at http://www.whitehouse.gov/omb/inforeg/lepfinal3-14.pdf.

76. Id.

77. Id. This figure was based on the total number and average cost of ER visits,
    inpatient hospital visits, outpatient physician visits, and dental visits.

78. Newman, B., “Doctor’s Orders Can Get Lost in Translation for Immigrants”, The
    Wall Street Journal, January 9, 2003. Citing the OMB’s 2002 report which
    estimated the number of patient encounters across language barriers each year at
    66 million. Were language assistance services made more widely available, that
    number would likely increase dramatically.

79. On August 31, 2000, the Health Care Financing Administration (now Centers for
    Medicare and Medicaid Services (CMS) issued a letter to all state Medicaid and
    SCHIP directors that clarified that federal Medicaid and SCHIP matching funds
    are available for state expenditures related to the provision of oral and written
    translation activities and services. See CMS, Dear State Medicaid Director (Aug.
    31, 2000).
                                                                                       52



80. Perkins, J., op.cit.at 14. The National Health Law Program surveyed the states to
    determine the extent to which federal funding is being used specifically to
    reimburse the costs associated with the provision of language services to
    Medicaid beneficiaries. The nine states listed reported obtaining those matching
    funds. States can receive reimbursement for language services as an
    administrative expense (equal to 50 percent of the costs). Idaho, Hawaii, Maine,
    and Utah receive reimbursement as a covered service, thus obtaining
    reimbursement at a higher rate. Different payment models are being used. Hawaii,
    Washington, and Utah contract with language interpretation agencies to which the
    states pay directly for services. In New Hampshire, interpreters contract with the
    state Medicaid agency and become participating Medicaid providers who are then
    reimbursed directly by the state. Idaho, Maine, and Minnesota require providers to
    pay interpreters and then receive reimbursement from the state.

81. Hawryluk, M., “Lost in Translation: Ways to Afford Speaking Your Patients’
    Languages,” AMNews, Dec. 2, 2002.

82. Id.

83. Id.

84. Green, A., Ngo-Metzger, Q. et. al. “Interpreter Services, Language Concordance,
    and Health Care Quality: Experiences of Asian Americans with Limited English
    Proficiency” Journal of General Internal Medicine Volume 20 Page 1050 –
    November 2005.

85. Id.

86. Hawryluk, M. op. cit. See FN 76 above for full citation.

87. A number of legal commentators have advocated this reform. See, e.g., Perez,
    op.cit. at 661-662.

88. Id. at 656.

89. Id.

90. Id.

91. See the JCAHO website at http://www.jcaho.org/about+us/hlc/home.htm In
    particular, consult Hospitals, Language and Culture under the drop-down menu
    beneath About Us. See also Resources and Standards on the About Us menu for
    links to useful links to pdf. files such as: a Crosswalk of Joint Commission and
    Culturally and Linguistically Appropriate Standards (CLAS) and Joint
    Commission Standards that Support the Provision of CLAS.
          53



92. Id.

93. Id.

94. Id.

95. Id.