In the following blog post, we have the pleasure of hearing from David Hunt, a former civil rights attorney specializing in the law of language access. We invited him to share his perspective on the future of the ACA if Congress does, in fact, repeal the legislation. We appreciate his perspective and look forward to including his contributions to the Healthcare Nation blog on a regular basis.
To be continued,
What Happens to Language Access if Congress Repeals the ACA?
David B. Hunt, Guest Contributor
President and CEO of Critical Measures
As a civil rights attorney with specialized expertise in the law of language access, I am frequently asked the question: “What happens to language access if Congress repeals the Affordable Care Act (ACA)?" In a nutshell, here is what I am telling our hospital clients:
First, the need to use qualified medical interpreters has always centered more on improving patient quality and safety than it has on regulatory compliance. That priority would remain regardless of what Congress does. Research by Dr. Glenn Flores shows that when providers use untrained medical interpreters to interpret for Limited English Proficient (LEP) patients, there is an average of 33 mistakes per clinical encounter, over two-thirds of which could have negative clinical consequences for patients. Further, according to the Joint Commission, half of LEP patients who reported adverse events experienced some degree of physical harm compared to less than a third of English speaking patients.
Second, for the sake of argument, let’s say that the ACA is repealed. Even if that is the case, other federal language access laws (Title VI, the ADA) will still remain on the books. In addition, repealing the ACA would not change the caselaw requirements (i.e. court decisions) that require the use of interpreters during informed consent discussions. Finally, repealing the ACA at the federal level does not affect state language access laws and all 50 states now have laws related to language access.
Third, repealing the ACA does not change what we know to be national best practices regarding the use of qualified medical interpreters. Institutions who aspire to be leaders will continue to follow national best practices such as those contained in the Culturally and Linguistically Appropriate Services (CLAS) standards, the Joint Commission and National Committee for Quality Assurance (NCQA) standards and best practices advocated by the Institute of Medicine.
Fourth, repealing the ACA does nothing to change the underlying competitive or market forces that are increasingly forcing providers to use qualified medical interpreters. (i.e. the LEP population will only continue to grow, become better educated and become more of a force politically. In addition, in many metropolitan areas, hospital systems are actively competing for patients and market share on the basis of language access.
Finally, in light of all of the uncertainty emanating from Washington, it may be tempting for providers to do nothing about language access improvements until greater federal clarity is provided. I believe that would be a mistake. To the extent that Title VI, the ADA and state language access laws remain on the books, “freezing” meaningful progress on language access issues only increases providers’ prospective liability. A study by the National Health Law Program found that providers can expect to pay damages in the average amount of $143,000 per case when medical malpractice claims have language access as their root cause.
About the author: David Hunt, Critical Measures President and CEO, is a former civil rights attorney with specialized expertise in the law of language access. Critical Measures offers cutting-edge assessments, follow-up consulting expertise and training tools to assure that hospitals and physicians are in compliance with the law of language access and able to meet or exceed new and emerging national best practices in the language access field. He can be reached 612.746.1375 or by e-mail at firstname.lastname@example.org.
Join David Hunt for an upcoming webinar “Diagnosing and Fixing Problems with Your Language Access Program” May 30, 2017 from 10 a.m. – noon PT. To learn more and sign up for the webinar, visit: https://www.indemandinterpreting.com/blog/blogdiagnosing-fixing-problems-language-access-program/.