Proposed Regulations Weaken Language Access Law in California HMOs

Proposed Regulations Weaken Language Access Law in California HMOs

Landmark legislation going into effect this spring will for the first time require ALL health plans in California to provide care in patients’ primary language. This legislation (SB 853) passed in 2003 and sponsored by the California Pan-Ethnic Health Network (CPEHN) marks a significant victory for over 20 percent of California’s population (six to seven million people) who have limited English proficiency (LEP). While the regulations may not directly pertain to California’s Medicare Advantage plans, as they are regulated under federal law, they may indirectly affect those MA plans sponsored by companies with other managed care plans for California’s general public. For example, companies such as Kaiser Permanente may choose to apply California language access standards across the board to all their plans serving Medicare and non-Medicare populations alike. The legislation also requires health plans to collect the appropriate race, ethnicity and language data for determining, monitoring and evaluating the language needs of the population each plan serves and services provided.

Although this legislation is a success in being the first of its kind, the California Department of Managed Health Care’s (DMHC) third draft of proposed regulations for implementing the law came as a shock to many advocates. Released after the November elections, this draft dampens the strength of the law in a way that seems to favor the insurance companies. With the changes, health plans are no longer required to: maintain a 24 hours per day, seven days a week toll-free telephone line that enrollees and providers can call to obtain the plan’s assistance in arranging language services; provide language identification cards to their enrollees; and send enrollees notification in 10 languages of the availability of language services. If patients do not know about the services, or if they are unable to call in to arrange for the services they need and/or let their doctors know what language they speak with a language identification card, how will interpretation services be of use to them? Although plans are still required to have ‘procedures’ to notify enrollees of the services and to arrange them, with no standard procedure set, enforcement of this legislation may be challenging. DMHC said they are committed to continue working with CPEHN and other advocates as the regulations become finalized in March 2007.

State versus federal policy on providing language services

Even with the weakening of this landmark legislation, California’s policies on language access still exceed those required of federal programs such as Medicare. For example, in terms of marketing guidelines the Centers for Medicare and Medicaid Services (CMS) says plans must make marketing materials available in any language that is the primary language of more than 10 percent of a plan’s geographic service area. This 10 percent threshold, however, is much looser than the five percent level required by California for some of its state programs, a move that ensures marketing and outreach caters to many more languages. Many of California’s Medicare plans interpret CMS’ guidance as needing to only provide materials and language services in Spanish, leaving out many of the other larger communities, such as Asian and Pacific Islanders. In California’s diverse counties, such as Los Angeles County, advocates argue that this guidance just doesn’t cut it.

Language services as part of Medicare’s role in eliminating disparities…

Tying into last edition’s article on Medicare’s role in eliminating racial and ethnic health disparities, implementing and enforcing stronger language access laws and regulations and providing Medicare funding for language services is an integral part of this role and responsibility. Over 20 million people nationwide have limited English proficiency, and in the Medicare population specifically, over two and a half million beneficiaries speak little or no English. These people are entitled to the same level of medical services and care as any other beneficiary. Yet, with little to no language assistance, how can these people access their entitled health care benefits?

A recent New America Media article, “A Cure for Medicare Language Gap,” gives the example of an elder Chinese woman with cancer, Mrs. Wu, who still after seven years of treatment and follow-up feels high anxiety in going to the doctor. What if she has to sit around feeling sick and isolated in the outpatient clinic all day again? What if she misses her appointment because they mispronounce her name again? What if she and her doctor don’t understand each other? In the early days she remembers taking along her neighbor’s 14-year-old son to interpret. His vocabulary was limited and to this day, Mrs. Wu still doesn’t know at what stage her cancer when into remission.

Four years ago, after having already undergone three years without medical interpreting and confusion and worry of medical misunderstandings, Mrs. Wu saw another Chinese patient arrive at the hospital with her own interpreter. Since then Mrs. Wu has also had her own interpreter thanks to Pacific Asian Language Services (PALS for Health) – the only nonprofit program offering free, trained, medical interpreters to patients in Los Angeles and Orange counties.

While Mrs. Wu is luckier than most of the over 2 million other LEP beneficiaries nationwide, the services she receives through a local non-profit are ones that Medicare needs to provide or pay for. Two common arguments for not paying for such services is cost and the claim of a lack of scientific research on the affect of language services on improving health, prevention, and reducing health care costs. Yet numerous studies and publications have successfully documented both the immense costs of not providing language services and the greater quality health care and health outcomes that result from the use of professional language services. (See Language Barriers in Health Care Settings: An Annotated Bibliography of Research Literature)

Mara Youdelman, a National Health Law Program (NHeLP) attorney who co-directed the writing of the report Paying for Language Services in Medicare: Preliminary Options and Recommendations, said that “significant research documents the improved quality of care that occurs when patients and providers understand each other. Providing interpreters can reduce medical errors, improve compliance with treatment, prevent complications, and reduce unnecessary tests and visits to the emergency room.”

Failing to provide free medical interpreting is considered a form of discrimination on the basis of national origin, according to the Title VI of the 1963 Civil Rights Act. Every medical entity receiving federal funds is mandated to provide patients with free interpreting. Yet who pays for these services? Insurance companies rarely pay for it. Most hospitals use untrained, bilingual employees performing other jobs, or expensive telephonic language services that do not work in all medical situations. Only three percent of hospitals get reimbursed (primarily through state Medicaid programs) for language-access costs, according to the report mentioned above. The result is that few of the 2.5 million LEP beneficiaries are lucky enough to receive interpreting from a trained medical interpreter, someone who knows medical terminology and understands patient confidentiality.

As a health care program created to provide equal access to quality care for all its beneficiaries, Medicare has a responsibility and obligation to ensure its LEP beneficiaries also have access to their entitled benefits and the language services needed for that access. The Medicare program has repeatedly agreed to pay for costly services and treatments, such as implantable defibrillators, after determining the devices were effective in improving health, despite the cost. So why should it not make similar reforms to Medicare to increase the quality of language services for limited English proficient beneficiaries? Advocates across the country are working on these important language access issues. Currently, a working group representing 70 organizations that deal with language barriers in health care is drafting legislation for Medicare to enable doctor-patient communication.

Resources

Listed below are some resources and further information on Medicare’s role in providing language services as well as language access activities, resources, legislation and publications.

Our blogger Karen J. Fletcher is CHA's publications consultant. She provides technical expertise, writing and research on Medicare, health disparities and other health care issues. With a Masters in Public Health from UC Berkeley, she serves in health advocacy as a trainer and consultant. See her current articles.