Federal and state law requires that healthcare organizations provide language access. More than 25 million people living in the U.S. are considered limited English proficient (LEP), and of that group, more than 80 percent are immigrants and the rest are predominately children of immigrants. Additionally, 28 million are born deaf or with hearing loss significant enough to require sign language. How can today’s healthcare providers possibly provide cost-effective and timely language access to every individual who needs language services?
THE ISSUE: If healthcare organizations receive Medicare, Medicaid or reimbursement from federal health programs, they have a legal obligation to provide language access services to LEP, Deaf and hard of hearing (HOH) patients. Healthcare organizations that receive Medicare, Medicaid or other sources of federal funds have an obligation to provide oral interpreters and written translated documents. In fact, failing to provide language access services to LEP patients is a form of national origin discrimination. There is case law going all the way up to the United States Supreme Court (Lau v. Nichols. 1974) that establishes that basic principle. Federal law, state law in all 50 states as well as multiple judicial decisions make reference to the need for healthcare organizations to provide language access services.
Three federal laws (Title VI of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Affordable Care Act) require that providers who receive federal funds provide oral interpreters and written translated materials to LEP and Deaf and HOH patients. Newly adopted changes to Section 1557 of the ACA in 2016 brought about two key changes. First, providers must now use qualified medical interpreters when treating LEP and Deaf and HOH patients. Second, LEP patients, for the first time, were granted the right to sue providers for language access violations.
According to the National Health Law Program, all 50 states now have language access laws. Knowing the laws in your state is important to remain legally compliant.
These verdicts are another important source of language access laws. For example, courts have long held that failing to use a qualified medical interpreter during informed consent discussions will make the resulting consent invalid in a court of law.
Violations Can Be Costly
Violations of federal language access laws (Title VI, the ADA and the ACA) are civil rights violations and are not typically covered by medical malpractice insurance. The National Health Law Program worked with one of the largest medical-malpractice insurance carriers in the U.S. to examine medical malpractice cases with language access issues and found that language access issues were the root cause of about 2.5 percent of all medical malpractice claims. The study examined 1,373 medical malpractice lawsuits, 35 of which had contested language access issues. The carrier paid a total of $2,289,000 in damages or settlements and $2,793,000 in legal fees on these 35 claims. ($5 M total or $142,857 per case.) In addition to the risk of lawsuits, failing to provide high-quality language access services can negatively affect hospital accreditation or re-accreditation decisions from The Joint Commission.
How InDemand Interpreting Can Help
InDemand understands the challenge healthcare organizations are facing in meeting the communication needs of an ever-growing, diverse patient population. We realize it is becoming increasingly difficult in the face of constantly changing regulations, the transition to value-based care and the need to embrace technology to meet patient language needs. Yet we know it’s necessary to improve clinical effectiveness, enhance patient experience and drive operating efficiencies.
By partnering with InDemand to implement a language access program, including the adoption of video remote interpreting (VRI), your organization has the opportunity to improve communication between patients and providers and increase compliance while reducing overall costs.