AARP Public Policy Institute INSIGHT on the Issues Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? Language barriers prevent thousands of Medicare beneficiaries from communicating effectively with their health care providers. Communication failures in health care settings can lead to poor health outcomes, medical errors and increased costs. Medicare is doing some things to address the problem, but more can be done. Introduction According to the American Community Survey, in 2006, 13.9 percent of Patient-provider communication is Americans age 65 and older spoke a essential for effective management of language other than English at home, chronic illness.1 Language barriers and a sizable share of those older between patients and providers can lead Americans (5.3%) reported having to substandard care and medical errors. limited English proficiency. These Federal policies that address language numbers are up from 12.3 percent and access have resulted in improvements in 4.0 percent, respectively, just six years the availability of services for people ago, and are expected to grow as the with no or limited English skills; number of minority Medicare however, these policies have suffered beneficiaries increases. from limited enforcement. This paper, which focuses on the Medicare The U.S. Census Bureau projects that population, examines problems from 2005 to 2030, the proportion of the associated with language barriers in U.S. population that is Hispanic will health care settings, describes federal increase from 14 percent to 20 percent, efforts to address the barriers, and makes and the proportion that is Asian will policy recommendations. increase from 4.3 percent to 6.2 percent.3 Communication barriers exist in many It is not unreasonable to expect that a forms; this paper focuses on those that significant number of these future arise when providers and patients speak Medicare beneficiaries will require different languages. interpreter services in health care settings. Limited English Proficiency Impact of Limited English Among Older Americans Proficiency on Health Care and Health Outcomes People for whom English is not their primary language or who have limited Many racial and ethnic minority ability to read, write, speak, or Americans have limited or no English understand English are defined as proficiency. Language barriers create limited English proficient (LEP).2 challenges to effective communication Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? Figure 1 Percentage of Population Age 65+ That Speaks a Language Other Than English at Home, 2000–2006 14% 12% 10% 8% 2000 2001 2002 2003 2004 2005 2006 Source: AARP PPI analysis of American Community Survey, 2000–2006. between patients and providers, and put were not LEP.7 Other studies have found patients at risk for receipt of substandard that— care and medical errors.4 LEP Medicare beneficiaries may have difficulty Patients who face language barriers understanding how the program works are less likely than others to have a and, therefore, not access the services usual source of medical care, are less they need.5 Among those who are able to likely to receive preventive services, access services, their limited ability to and may be less likely to adhere to communicate with providers and other medication instructions.8 health professionals can affect the When Spanish-speaking patients are quality of the care they receive and their discharged from emergency rooms, satisfaction with their care.6 People with they are less likely to understand limited English skills who have one or their diagnosis or follow-up more chronic illnesses can experience a instructions, including how to number of problems as they seek to properly take their medications.9 navigate a complex U.S. health care When Spanish-speaking patients system. have doctors who do not speak their language, they are more likely to not A 2006 study found that LEP Medicare take their medications as instructed, beneficiaries had less access to a usual miss their scheduled doctor source of health care and to preventive appointments, and use emergency cancer screenings than beneficiaries who 2 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? Figure 2 Percentage of Population Age 65+ That Speaks English Less Than Well, 2000–2006 6% 4% 2% 0% 2000 2001 2002 2003 2004 2005 2006 Source: AARP PPI analysis of American Community Survey, 2000–2006. rooms for care than those with Patients with diabetes and Spanish-speaking physicians.10 hypertension report better health When Spanish-speaking patients are outcomes when their physicians seen by Spanish-speaking speak their native language.14 physicians, they ask more questions and understand their medical Effective patient-provider conditions better than when they are communication is essential for seen by physicians who do not speak adequate care of diabetes and other Spanish.11 chronic illnesses.15 LEP patients who have physicians Communication problems in health who do not speak their language settings can pose significant barriers to have more medication-related receipt of high-quality health care. The problems.12 problems that are likely to arise include Chinese and Vietnamese LEP the following: patients whose providers do not speak their languages are less likely Inability of providers to take to receive education about their accurate medical and social histories, conditions and treatments compared to assess patients’ beliefs about with those who have providers who health and illness, and to establish speak their languages. They are also empathetic relationships with less satisfied with their care and patients.16 experience worse interpersonal relationships with their providers.13 3 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? Inability to reach agreement on Increased likelihood of unnecessary treatment decisions and a course of emergency room use and inpatient treatment.17 hospitalizations.23 Provider misunderstandings of Poorer patient outcomes.24 patients’ concerns, misdiagnoses, and inefficient use of resources (e.g., Better communication between LEP unnecessary tests and invasive patients and providers may help procedures), leading to increased alleviate the problem of health care costs.18 disparities.25 The ability to understand Inability of patients to understand directions from health care providers is informed consent and other legal key to effective participation in the documents.19 management of chronic illness. Minorities—especially Asian Increased possibility of medical Americans and Hispanics—are less able errors.20 to understand doctors’ orders (figure 3) Inability of patients to understand or prescription drug labels (figure 4) treatment and prescription and experience more difficulties during instructions and effectively self- doctor visits (figure 5) than their white manage their illnesses.21 counterparts. Cultural and linguistic Poor patient compliance with barriers create multiple opportunities treatment plans, inappropriate for people to fall through the cracks in follow-up, and less patient the health care system. They may avoid satisfaction.22 or delay care; fail to follow through Figure 3 Asian Americans and Hispanics Are Less Likely to Understand Instructions from a Doctor’s Office Percentage of adults reporting it very easy to understand information from doctor’s office 57% 59% 55% 45% 44% Total White African American Hispanic Asian American Source: The Commonwealth Fund 2001 Health Care Quality Survey. 4 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? Figure 4 Hispanics and Asian Americans Are Less Likely to Understand Instructions in Prescription Bottles Percentage of adults reporting it very easy to understand prescription bottle 82% 79% 79% 64% 66% Total White African American Hispanic Asian American Source: The Commonwealth Fund 2001 Health Care Quality Survey. with recommended care, testing, or and regulations that bar discrimination medications; or become confused trying and may require health care providers or to comply with treatment regimens. plans to provide interpreter services. If they were strongly enforced, providers Federal policies addressing language would furnish interpretation services to access have helped improve the avoid being sued or losing federal availability of LEP services in health funding. At the other end of the spectrum care settings; however, these policies are federal guidelines and quality have suffered from limited measures designed to encourage health enforcement.26 The Office of Civil plans and providers to close the gap in Rights in the U.S. Department of Health quality and satisfaction by sharing best and Human Services (HHS) has the practices and making improvements. authority to take a much stronger stance Other policy options would have health on enforcement of Title VI compliance plans or government programs pay for or in Medicare,27 but the agency is furnish interpretation services directly or chronically underfunded and would require such services as a understaffed.28 condition of participation. In addition to federal policies, census data predicting In the face of evidence that people who the continued increase in the proportion are LEP receive worse health care, it is of Asians and Hispanics in the U.S. useful to identify policy options and other population create a business imperative actions that address this disparity. At for providing language access. one end of the spectrum are federal laws 5 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? Figure 5 Hispanics and Asian Americans Experience More Communication Difficulties During Doctor Visits Felt Doctor Listened to Everything They Said Understood Everything Doctor Said 66% 66% 68% 69% 68% 61% 57% 56% 49% 48% Total White African American Hispanic Asian American Base: Adults with health care visit in past two years. Source: The Commonwealth Fund 2001 Health Care Quality Survey. Federal Laws and Policies Title VI of the Civil Rights Act and Establishing the Right to Implementing Regulation Language Access Congress enacted the Civil Rights Act in 1964. Title VI of the Act forbids Federal policies that can be used to providers who receive federal funds, create a legal basis for the right to directly or indirectly, from adequate language access to heath care discriminating on the basis of race, include Title VI of the Civil Rights Act color, or national origin.29 The HHS of 1964; federal regulations Office of Civil Rights (OCR) issued a implementing Title VI; Supreme Court regulation implementing Title VI shortly decisions defining the scope of the Title after it was enacted. The regulatory VI implementing regulation; an language specifically prohibits entities Executive Order requiring all that receive federal funds from: grantmaking federal agencies to provide guidance on how fund recipients can Denying a person any service, comply with LEP policy guidance; the financial aid, or other benefit adoption of national standards for provided under the program. providing culturally and linguistically Providing any service, financial aid, appropriate services (CLAS); and or other benefit to a person that is Medicare policies related to different, or is provided in a different reimbursement for interpreter services manner, from that provided to others provided by participating hospital under the program. providers. Subjecting a person to segregation or separate treatment in any matter 6 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? related to his or her receipt of any 2001 case raised questions about the service, financial aid, or other benefit continued viability of the Title VI under the program. implementing regulation, with the Court Restricting a person in any way in hinting that the regulation may be at the enjoyment of any advantage or odds with the statute. While the statute privilege enjoyed by others receiving prohibits intentional discrimination, the any service, financial aid, or other regulations speak to disparate impacts. benefit under the program. Finally, the ruling raised questions about Treating a person differently from whether the Title VI ban on national others in determining whether he or origin discrimination includes LEP she satisfies any admission, persons, leaving the issue unresolved. enrollment, quota, eligibility, For now, those who seek more legal membership, or other requirement or access to language services will have to condition that persons must meet to rely on OCR enforcement activities. be provided any service, financial Unfortunately, fiscal constraints and aid, or other benefit provided under competing priorities have limited OCR’s the program; enforcement capacity.34 Denying a person an opportunity to Executive Order 13166 and Its participate in the program through Implementation the provision of services or otherwise, or affording him or her Executive Order (EO) 13166, issued by opportunity to do so that is different President Bill Clinton on August 11, from that provided to others under 2000, required all federal agencies the program. providing financial assistance to nonfederal entities to publish guidance Denying a person the opportunity to on how federal grant recipients could participate as a member of a comply with the Title VI planning or advisory body that is an nondiscrimination requirement by integral part of the program.30 December 11, 2000.35 The Executive Supreme Court Cases Order designated the Department of Justice (DOJ) as the lead agency In 1974, the U.S. Supreme Court ruled in responsible for providing LEP guidance Lau v. Nichols that discrimination on the to other federal agencies and required basis of language is a form of other agencies to develop guidance discrimination based on national origin, consistent with that of the DOJ.36 The in violation of Title VI.31 Although the Bush administration has reaffirmed EO case dealt with the right to language 13166.37 access to public education, it has been cited as establishing a right to language On August 30, 2000, HHS published a access to health services. However, a Policy Guidance addressing the Title VI 2001 Supreme Court case, Alexander v. prohibition.38 The department issued a Sandoval,32 had a chilling effect on the Revised Policy Guidance on August 8, earlier case in several ways. 2003, in which a flexible and fact- dependent standard was articulated for First, the 2001 case limits the right of determining whether a person has individuals to enforce Title VI to meaningful language access to care. situations in which intentional Under the standard, four factors should discrimination can be shown, leaving the be considered in determining meaningful right to enforce discriminatory or access: (1) the number or proportion of disparate impacts to OCR.33 Second, the 7 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? LEP persons eligible or likely to be use them to make their practices more eligible for service, directly affected, or accessible.44 The goal of the standards is encountered by the program; (2) the to promote the elimination of racial and frequency with which LEP persons have ethnic health disparities and ultimately or should have contact with the program, improve the health of all Americans.45 activity, or service; (3) the nature and importance of the program or service to The standards are grouped according to people’s lives; and (4) the resources three major themes: (1) culturally available to the recipient of federal grant competent care, (2) language access funds and costs of complying with the services, and (3) organizational supports standard.39 The guidance relies on for cultural competence. Within this flexibility, voluntary compliance, and framework, the standards vary by educational interventions.40 Providers stringency. CLAS mandates are current who receive federal payments under federal requirements for all recipients of Medicare Part B are exempt from the federal grant funds; CLAS guidelines are requirements of the Revised Policy activities recommended for adoption as Guidance on the theory that Part B is a mandates by federal, state, and national private contract of insurance between accrediting agencies; and CLAS the individual and the federal recommendations are suggested for government and not a direct grant of voluntary adoption by health care public funds. Although the same logic organizations.46 could apply to payments made under CLAS Standard 4 describes various Part A, most institutional providers ways in which interpreter services can be receive other types of federal grant provided and sets forth preferences for funds,41 making it difficult (if not which approach should be employed impossible) for them to argue that they depending on the circumstances. are not subject to Title VI enforcement Although CLAS standards are a useful activities.42 As a practical matter, guide for developing programs and exempt Part B providers who receive services that are responsive to persons other sources of federal funding for who are LEP, they are not legally programs such as Medicaid, TRICARE, enforceable.47 and the Federal Employees Health Benefits Plan (FEHBP), are subject to the Medicare Reimbursement Policy requirements of the Revised Guidance.43 National Standards on Culturally and The Centers for Medicare and Medicaid Linguistically Appropriate Services Services (CMS) has addressed linguistic In support of legal and regulatory efforts accessibility in its Part A payment to ensure access to language services, 14 policy. Part A participating hospitals are national standards for culturally and encouraged to make multilingual linguistically appropriate services services available to patients who need (CLAS) in health care were published in them and may count the costs of the Federal Register on December 22, providing these services as reasonable 2000. The standards were developed by costs following cost reporting rules. the HHS Office of Minority Health Medicare pays hospitals a per case rate (OMH). CLAS standards are primarily that reflects the average costs of directed at hospitals, health plans, and providing services, with the costs of large physician groups; however, providing multilingual services factored individual providers are encouraged to into the average. However, no 8 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? additional payments or adjustments are confidentiality), and the staff member provided to increase the amount of the providing translation services is payment to reflect the higher costs compensated for providing a service that associated with providing a particular is outside of the scope of his or her patient with multilingual services. In normal job responsibilities.55 addition, Medicare policy is silent on Salaried staff interpreters are employed reimbursement for interpreter services by an institution to provide interpreter provided to Part B beneficiaries even services. As staff members, they are though many LEP Medicare likely to interact with the same beneficiaries receive services in physicians and patients on an ongoing outpatient settings.48 basis thereby establishing trust and rapport, and fostering an environment Providing Interpreter Services that supports effective communication and improved patient outcomes. The Ideally, patients and providers speak the hourly wage for full-time staff same language. LEP patients can be interpreters ranges from $10 to $32.56 linked with providers who speak their CLAS standards list bilingual staff as the language through directories listing the first preference.57 languages spoken by providers. When providers who speak the patient’s Well trained contracted interpreters, who language are not available, interpretation work through agencies or on a freelance services can be provided in a variety of basis,58 can be very effective in patient ways. These include: care settings. Their use is not always feasible, especially in emergency Bilingual staff members;49 situations, because they are required to salaried staff interpreters;50 travel to providers’ offices or other contracted interpreters;51 settings in order to provide interpreter services.59 Contracted interpreters would informal interpreters (such as friends probably fall into the same category as or family members);52 salaried interpreters under CLAS.60,61 untrained volunteers;53 and telephone interpreter services.54 The use of informal interpreters (e.g., friends, family members, and volunteers) Bilingual staff members are health raises significant confidentiality issues. professionals (e.g., doctors or nurses) or Because they often do not have adequate ancillary staff (e.g., receptionists, food command of medical terminology, their service, or housekeeping staff) who are use could also lead to communication available to translate for LEP patients. errors. In many cultures, it is not When the need for interpreter services acceptable for a child or a husband to arises, these individuals are required to discuss sensitive health matters (such as leave their primary job responsibilities in those dealing with psychiatric or sexual order to facilitate patient-provider issues) with a mother or wife.62 Even if communication. These types of there are no cultural conflicts, privacy arrangements work best when the issues remain.63 CLAS standards do not supervisor of the translating staff member recommend the use of untrained friends is supportive of the arrangement, the staff and family members unless the patient member receives appropriate training requests it. The DHHS Policy Guidance (e.g., training related to interpreting, and the CLAS standards do not medical terminology, and privacy and 9 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? recommend the use of family and friends Quality Assessment and Performance to provide interpreter services. Improvement Projects If a trained professional is not available, CMS requires Medicare Advantage the CLAS standards express a preference plans to conduct QAPI projects on an for the use of trained volunteers before ongoing basis with the goals of resorting to telephone interpreter improving health outcomes and enrollee services.64 The latter is the least satisfaction.68 These projects are preferred alternative under CLAS generally conducted over a three-year because the physical barrier imposed by period.69 In 2003, CMS required the telephone limits the interpreter’s Medicare Advantage plans to focus ability to effectively assist practitioners QAPI projects on addressing clinical with physical examinations because the disparities or culturally and linguistically interpreter is unable see where the appropriate services (CLAS).70 The patient is being touched65 and cannot QAPI projects that were focused on pick up on important visual cues.66 CLAS were required to address language CLAS recommends the use of telephone access or organizational support for such services only as a supplemental system, access,71 and to conduct intervention and when translation services are needed outcome analysis to determine whether instantly, or when they are needed for an the intervention resulted in measurable infrequently encountered language.67 improvements.72 Emerging technological innovations, To help the plans develop, implement, such as the combined use of visual and and evaluate CLAS-focused QAPI telephonic communication, may alleviate projects, CMS distributed a template some of the problems associated with the with best practice examples of use of telephone services alone. interventions. For example, the plans Regardless of the kind of interpreter could provide 24-hour access to service used, the interpreter has to go interpreter services; adapt educational back and forth between the patient and materials for the targeted language or the doctor, repeating what each has said culture group; incorporate culturally in the other’s language. This lengthens appropriate material for plan members; the visit and reduces physician or establish linguistic services productivity; however, the alternative is committees to oversee language issues.73 poor communication and poor patient These projects were scheduled to end in outcomes. 2006. Originally, the health plans were required to provide CMS with annual What Is Medicare Doing to project evaluations; however, in January Address Language Access? 2005, the agency excused the plans from Currently, CMS addresses the issue of reporting requirements on QAPI projects language access primarily through begun before January 1, 2006 (including the CLAS projects begun in 2003) in Quality Assessment and Performance Improvement (QAPI) projects and order to implement new reporting through demonstration projects that test guidelines.74 Therefore, the plans did not have to submit final reports on their and measure the effects of new methods CLAS-related QAPI projects. Anecdotal and potential program changes. information obtained from CMS indicates that while some health plans developed projects that made language 10 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? services available to their LEP clients, Aleut), Asian American and Pacific many chose strategies such as updating Islander, Black, and Hispanic Medicare provider directories to reflect the beneficiaries.79 The projects aim to languages spoken by their provider identify methods to reduce disparities in panels.75 early cancer screening, diagnosis, and treatment among the target Demonstration Projects populations.80 Project designs had to CMS sponsors demonstration projects to include services that enable minority test and measure the effect of potential Medicare beneficiaries to effectively program changes. The demonstrations navigate the health care system, including attempt to measure the impact of new the provision of interpreter services.81 methods of service delivery, coverage of new services, and new payment On April 3, 2006, CMS awarded four-year approaches on beneficiaries, providers, cooperative agreements to six health plans, states, and the Medicare demonstration sites that will serve a total Trust Funds.76 of 7,000 minority Medicare beneficiaries in seven states—Hawaii, Maryland, The Medicare program has a vested Michigan, Montana, New Jersey, Texas, interest in ensuring language access for and Utah. In September 2006, the the millions of beneficiaries who need it. demonstration sites began recruiting To improve health outcomes and reduce people in their communities who did and health care costs, CMS launched a did not have cancer. number of Medicare demonstrations aimed at helping beneficiaries better Each of the sites uses patient navigators manage their chronic illnesses, including as the primary means of facilitating plans to ensure that patients understand services. Patient navigation in cancer what their health care providers say. 77 care refers to the assistance offered to Two demonstrations that include patients, cancer survivors, families, and language access as a project component caregivers to help them navigate the are the Cancer Prevention and Treatment complexities of the health care system Demonstration for Ethnic and Racial and overcome barriers to the receipt of Minorities and the Senior Risk high quality care. Examples of Reduction Demonstration. navigation services include scheduling appointments with culturally sensitive Cancer Prevention and Treatment caregivers and arranging for interpreter Demonstration services.82 People who do not have cancer are offered patient navigator The Medicare, Medicaid, and State services to help them access screening Children’s Health Insurance Program and diagnostic services. Those with a (SCHIP) Benefits Improvement and cancer diagnosis receive assistance in Protection Act of 2000 (BIPA) required obtaining appropriate treatment and CMS to enter into at least nine follow-up services.83 cooperative agreements to implement and operate demonstration projects Demonstration sites that have made under the Cancer Prevention and culturally and linguistically competent Treatment Demonstration for Ethnic and patient navigators available include the Racial Minorities.78 The three- to five- Hawaii, New Jersey and Texas sites.84 year projects, which began in 2006, were required to target American Indian (including Alaskan Native, Eskimo, and 11 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? Senior Risk Reduction Demonstration (CAHPS), and pursue a number of other In April 2008, CMS initiated the three- policy options to improve access to year Senior Risk Reduction language services for Medicare Demonstration (SRRD). According to beneficiaries. persons involved with the Reimburse for Interpreter Services in Demonstration, the goal of the SRRD is Fee-for-Service Medicare to determine whether risk reduction programs (also referred to as health Medicaid and the State Children’s promotion, health management, disease Health Insurance Program (SCHIP), management, and disease prevention allow (although they do not require) programs) that have been developed and states to receive federal matching funds tested in the private sector can be for providing oral and written interpreter applied to Medicare beneficiaries to services to beneficiaries. As of 2005, at improve health outcomes and reduce least l3 states covered these services.89 avoidable health care utilization.85 In contrast, traditional fee-for-service Rather than taking a single-risk-factor Medicare Part B does not require approach to health management, the providers to make language services SRRD addresses multiple risks that available to beneficiaries and does not contribute to disease, including physical reimburse for interpreter services even if inactivity; obesity; smoking; depression; they are provided voluntarily.90 Medicare high blood pressure, cholesterol, and managed care plans (Medicare glucose; and inappropriate use of Advantage) are required to provide preventive services. The SRRD culturally competent services, including addresses the needs of LEP participants language and reading services, to LEP by including language accommodations enrollees.91 It is unclear how closely in recruiting materials, information- CMS monitors and enforces this gathering materials, and feedback.86 requirement, if at all.92 Some health plans may simply pass the requirement A secondary goal of the SRRD is to on to their participating providers determine whether seniors from without ensuring that they are in communities with strong information, compliance.93 referral, and assistance (I&R/A) programs will show even greater gains in According to the Office of Management health and decreased inappropriate use and Budget (OMB),94 the cost of compared with seniors from providing interpreter services to fee-for- communities that do not have strong service Medicare beneficiaries is referral programs.87 Ten communities minimal—an estimated $4.04 per visit, with exemplary I&R/A programs have or about 0.5 percent of the cost of an been selected to participate in this aspect average visit.95,96 According to the of the demonstration, and all are OMB, the cost would be offset by the required to provide language access.88 savings generated though avoidance of unnecessary emergency room use, What More Can Medicare Do? avoidance of unnecessary tests and procedures, and improved patient CMS could extend reimbursement for understanding of and adherence to interpreter services to fee-for-service treatment regimens. Medicare could Medicare, include questions about develop a payment system for language language access in Consumer services provided in hospitals97 and Assessment of Health Plans Surveys outpatient settings, and could exempt 12 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? low-income beneficiaries from cost- representative, CMS is open to adding sharing for language services.98 supplemental questions about limited English proficiency and its effect on care Include Questions About Language to the survey.105 Useful questions would Access in the CAHPS Health Plan Survey probe beneficiaries on issues such as The Consumer Assessment of whether language barriers prevent them Healthcare Providers and Systems from communicating symptoms, (CAHPS) program is a group of understanding prescribed treatments, and standardized surveys that ask patients to medication and follow-up instructions. evaluate consumer’s experiences with health care providers. The surveys cover The CAHPS Hospital Survey (Hospital topics of importance to consumers, such CAHPS or H-CAHPS), initiated in as the provider communication skills and October 2006, seeks to understand the the accessibility of services. CAHPS is experience of adults with inpatient administered for hospitals, fee-for- hospital care and services. Hospitals service Medicare, and Medicare across the country use the H-CAHPS on Advantage plans. Because the surveys a voluntary basis and the resulting data are only administered in English and are reported quarterly to CMS.106 The Spanish, the ability of researchers to survey is currently conducted in English, investigate questions of language access Spanish, and Chinese; however, CMS is among all Medicare beneficiaries is considering expanding it to other limited. languages, although these have not been identified.107 CAHPS was launched in October 1995 by the Agency for Healthcare Research The H-CHAPS asks respondents to and Quality (AHRQ) in response to identify the language primarily spoken at concerns about the lack of reliable home. This information is used as a information on the quality of health patient mix adjuster that adjusts hospital plans from the enrollees’ perspective. scores for purposes of public reporting CMS now fields the survey in fee-for- and comparison. It could also be used to service Medicare and Medicare identify hospital inpatients who are Advantage,99, 100 and has the authority to LEP,108 to identify needs for inpatient add supplemental questions to gather interpreter services among Medicare consumer information on issues of beneficiaries, to identify barriers to concern to the Medicare or Medicaid quality inpatient hospital care from the programs.101, 102 patient perspective, and to get a sense of whether and to what extent hospitals are CAHPS is a valuable tool for learning in compliance with the requirements of about care from the consumer Title VI, its implementing regulation, perspective, but the Medicare survey and federal guidance. A representative does not ask questions about primary from CMS said that the agency would language or language access.103 A CMS consider such uses of LEP information representative said that because the from the H-CAHPS survey.109 survey is administered only in English and Spanish, questions about language Other Policy Options access would not reflect the needs Recent research has identified some among other LEP racial/ethnic groups, policy options CMS could pursue to and that there has not been much improve access to language services for demand for the inclusion of these kinds Medicare beneficiaries.110 These options of questions.104 According to the include the following: 13 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? Increase language options on the LEP persons, and widely disseminate CMS website. Currently, CMS project results. CLAS projects could presents information primarily in be required to use templates English and Spanish.111 developed by CMS. Improve Medicare data on race and Add supplemental questions to the ethnicity, including working with the health plan CAHPS to determine the Social Security Administration extent to which LEP persons are (SSA) to develop a program to unable to communicate effectively collect data on race, ethnicity, and with providers and the extent to socioeconomic status at the time of which this affects their satisfaction enrollment in Medicare and for with care.120 current beneficiaries.112 SSA is the Use the financial clout of the primary source of race and ethnicity Medicare program to require medical information; however, the usefulness residency and nursing programs to of the information is limited by three incorporate education about the main factors: (1) the fact that until importance of language access and 1980 SSA used only three racial its role in reducing health disparities designations (white, black, and and medical errors in their other); (2) the voluntary nature of curriculums.121 reporting race; and (3) the difficulty Engage in outreach and education of making systematic corrections to activities to inform persons with low the data.113 English proficiency about their legal Require the uniform collection of rights with regard to language race and ethnicity data by health services.122 plans.114 View language and cultural access as Provide grants to hospitals and important quality measures and health professional training programs making sustained efforts to ensure to increase the number of minority language access at every level of physicians and other practitioners.115 care. Provide grants to community-based organizations to train bilingual Conclusion interpreters.116 Initiate federal contracts for Language barriers make it hard for telephone interpreter services.117 people who have no or limited English Improve oversight of existing skills to effectively participate in their own health care. The problem is requirements to provide culturally and linguistically appropriate especially acute for Medicare (CLAS) services in Medicare beneficiaries, among whom the prevalence of chronic disease is highest. Advantage.118 Recent federal demonstration projects Develop and distribute model have included activities designed to contract language related to the overcome these language barriers. The provision of interpreter services for projects may identify promising government contracts with health strategies for responding to the needs of plans.119 LEP persons. But demonstration projects Require Medicare Advantage plans are frequently discontinued or their to undertake more QAPI projects findings are not incorporated throughout focused on CLAS, especially among the Medicare program. Thus, despite the plans in areas with large numbers of cautious promise of some of these 14 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? projects, much remains to be done. provisions, even though they did not Reducing language barriers in Medicare become law. supports two important national goals: reducing racial and ethnic disparities in Regardless of the outcome of these health care and improving the quality of federal legislative proposals, CMS care received by Medicare beneficiaries. currently has the authority to takes steps to ensure that a growing LEP Medicare Congress has recognized that one of the population has access to the language most promising strategies to ensure services. access to language services is to provide reimbursement for translation. H.R. Acknowledgments 3014—introduced in July 2007 and endorsed by the Congressional Black The author would like to thank Sarah Caucus, the Hispanic Caucus, and the Thomas, Director, Health Team, AARP Asian Pacific American Caucus—would Public Policy Institute, for guidance and establish a center for remote translation helpful comments in the development of and incorporate the four factors of the this paper. I am also grateful to my HHS revised Policy Guidance into law. colleagues Richard Duetsch, Jennifer It also would establish 30 demonstration Gladieux, Ellen O’Brien, Leigh Purvis sites to evaluate the impact on costs and and Gerry Smolka for providing health outcomes of providing technical assistance and valuable reimbursement for interpreters for LEP comments. Timothy Stoltzfus Jost, beneficiaries. The bill has been referred Robert L. Willett Family Professor of to a number of committees.123 Law, Washington and Lee University School of Law; Leighton Ku, Professor Another measure—the Children’s Health of Health Policy, George Washington and Medicare Protection Act (CHAMP), University School of Health Policy; Ann H.R. 3162—was passed by the House on Morse, Director, Immigrant Policy August 1, 2007 but failed in the Senate. Project, National Conference of State CHAMP would have (1) collected Legislatures; and Jane Perkins, Legal primary language information on Director, National Health Law Program, Medicare beneficiaries and Social provided very useful comments. All of Security applicants; (2) conducted a study you helped improve the final product— to determine how Medicare could thank you. develop payment systems for language services; (3) awarded demonstration grants to Medicare service providers to improve communication between providers and Medicare beneficiaries in 1 Piette, John D., et al., Dimensions of Patient-Provider underserved racial and ethnic minority Communication and Diabetes Self-Care in an communities where many people face Ethnically Diverse Population, J Gen Intern Med, language barriers; (4) required an August 2003, 18(8): 624–633. Inspector General report on Medicare’s 2 United States Department of Health and Human compliance with the CLAS standards; Services, Office of Civil Rights, Revised Guidance to and (5) required an Institute of Medicine Federal Financial assistance Recipients Regarding Title VI Prohibition Against National Origin report on the impact of language access Discrimination Affecting Limited English Proficient services on the health and health care of Persons, August 4, 2003. LEP populations. Many House members continue to support the CHAMP 15 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? 3 Medicare Payment Advisory Commission and the Uninsured, Washington, DC, August 2003), (MEDPAC), Promoting Greater Efficiency in citing Lau v. Nichols, 414 U.S. 563 (1974). Medicare: Report to the Congress, June 2007. 25 McCall, M., Facilitators and Barriers to Changing 4 Institute of Medicine (IoM) of the National Health Behaviors, American Public Health Academies, Unequal Treatment: Confronting Racial Association, 131st Annual Meeting (San Francisco, and Ethnic Disparities in Healthcare (National CA, November 15–19, 2003). Academy of Sciences, Washington, DC, 2003). 26 Supra, note 5. 5 Jost, Timothy Stoltzfus, Racial and Ethnic Disparities 27 Ibid. in Medicare: What the Department of Health and 28 Human Services and the Centers for Medicare and Supra, note 24. Medicaid Services Can, and Should, Do (National 29 Academy for Social Insurance, Washington, DC, Ibid. March 2005). 30 The purpose of this part is to effectuate the 6 Ibid. provisions of title VI of the Civil Rights Act of 1964 (hereafter referred to as the Act) to the end that no 7 Ku, Leighton, Paying for Language Services in person in the United States shall; on the ground of Medicare: Preliminary Options and Recommendations race, color, or national origin, be excluded from (Center on Budget and Policy Priorities and National participation in, be denied the benefits of, or be Health Law Program, Washington, DC, October otherwise subjected to discrimination under any 2006). program or activity receiving Federal financial 8 assistance from the Department of Health and Human Flores, Glen, Language Barriers to Health Care in the Services. 45 C.F.R., section 80.3(b). United States, N Engl J Med, July 20, 2006, 355(3): 31 229–231. 414 U.S. 563 (1974). 9 32 Supra, note 5. 532 U.S. 275 (2001). 10 33 Ibid. Supra, note 24. 11 34 Ngo-Metzger, Quyen, et al., Providing High-Quality Ibid. Care for Limited English Proficient Patients: The 35 Importance of Language Concordance and Interpreter President William J. Clinton, Executive Order Use, J Gen Int Med, November 22, 2007, 22(Supp l2): 13166, Improving Access to Services for Persons with 324–330. Limited English Proficiency (The White House, August 11, 2000), accessed at www.usdoj.gov. 12 Ibid. 36 Supra, note 24. 13 Ibid. 37 Perkins J., Youdelman, M., and Wong, Doreena, 14 Ibid. Ensuring Linguistic Access in Health Care Settings: 15 Legal Rights and Responsibilities, 2d ed., Chapter 2, Supra, note 1. note 27 (Los Angeles, CA, National Health Law 16 Supra, note 4. Program, 2003). 17 38 Ibid. The guidance was originally published on August 18 30, 2000, and included a 60-day comment period. See Ibid. 65 FR 52762. It was republished for additional 19 Ibid. comment on February 1, 2002, pursuant to a 20 memorandum issued by the U.S. Department of Ibid. Justice on October 26, 2001. See 67 FR 4968. On 21 March 14, 2002, OMB issued a report to Congress on Supra, note 7. 22 costs and benefits of improving access to services for Supra, note 4. LEP persons. OMB recommended the adoption of 23 Supra, note 7. uniform guidelines across all federal agencies. Consistent with this recommendation, DOJ published 24 Perkins, Jane, Ensuring Linguistic Access in Health LEP Guidance for DOJ grant recipients, which were Care Settings: An Overview of Current Legal Rights drafted as a model for all federal grantmaking and Responsibilities (Kaiser Commission on Medicaid agencies. See 67 FR 41455. The revised LEP Guidance of August 8, 2003, reflects comments 16 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? 48 received by the agency as well as the DOJ Guidance. E-mail communication with Jane Perkins, Legal 68 FR 47311. Director, National Health Law Program, Chapel Hill, 39 NC, August 2008. Supra, note 24. 49 40 Ibid. According to language in the Revised Guidance, this 50 emphasis reflects a desire not to overburden small Pokras, O. C., et al., Providing Linguistically businesses, small local governments, and small Appropriate Services to Persons with Limited English nonprofits (supra, note 5). Proficiency: A Needs and Resources Investigation, 41 Amer J Managed Care, September 2004, 10 (Special In 1946, Congress passed the Hospital Survey and Issue): SP 29–36. Construction Act (Hill-Burton Act), which gave 51 hospitals, nursing homes, and other health care Ibid. facilities federal grants and guaranteed loans for 52 Ibid. construction and modernization. In return, they agreed 53 to provide a reasonable volume of services to persons Supra, note 7. unable to pay and to make their services available to 54 all persons residing in the facility’s area. The program Ibid. stopped providing funds in 1997, but about 300 health 55 Supra, note 45. care facilities nationwide are still obligated to provide 56 free or reduced-cost care. Ibid. 57 42 Infected Judgment: Legal Responses to Physician Supra, note 42. Bias, 48 Vill. L. Rev. 195 (2003), citing Smith, D.B, 58 Supra, note 45. Health Care Divided: Race and Healing a Nation 59 (Ann Arbor, MI, University of Michigan Press, 1999). Supra, note 42. Smith views the Part B exemption as a product of the 60 Supra, note 42. political realities of the time that made it unrealistic 61 and administratively burdensome to enforce Title VI Using contracted interpreter services may raise against large numbers of individual physicians. In important privacy considerations under the Health addition, local medical societies, state societies, and Insurance Portability and Accountability Act (HIPAA) the American Medical Association were political of 1996. Public Law 104-191. Under HIPPA a covered forces and were reluctant, if not hostile, participants in entity (such as a hospital) must enter into a written the Medicare program, making it politically untenable agreement with its business associates (such as to attempt to enforce Title VI. brokers/consultants) where the business associates 43 promise to properly protect the use and disclosure of Medicaid is a joint state and federally funded personal health information received from the program that pays qualifying medical expenses for "covered entity". A "business associate" is a person or eligible people under age 65 who are indigent and entity that performs or assists in the performance of a meet certain other criteria. TRICARE is the function or activity on behalf of a covered entity and Department of Defense's health care program for uses PHI in the process of performing that function or members of the uniformed services, their families and activity. Cigna, HIPAA Frequently Asked Questions survivors. The Federal Employees Health Benefits assessed at www.cigna.com/customer. Program is a health insurance program that provides 62 coverage for federal employees and retirees. Ibid. 44 63 U.S. Department of Health and Human Services, Supra, note 8. Office of the Public Health Service, Office of 64 Supra, note 42. Minority Health, National Standards for Culturally 65 and Linguistically Appropriate Services in Health Supra, note 45. Care: Final Report (Washington, DC, March 2001). 66 Ibid. 45 Ibid. 67 Supra, note 42. 46 Ibid. 68 CMS, Quality Improvement Organization Manual, 47 E-mail communication with Jane Perkins, Legal Chapter 6: Medicare + Choice Organizations Director, National Health Law Program, Chapel Hill, (Baltimore, MD, CMS, Rev. 11, 10-3-03), accessed at NC, July 2008. www.cms.hhs.gov/manuals. 17 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? 69 81 Watson, Sidney D., Equity Measures and Systems CMS, Office of Public Affairs, CMS Announces Reform As Tools for Reducing Racial and Ethnic Demonstration Project to Reduce Disparities in Cancer Disparities in Health Care (New York: The Prevention and Treatment (Baltimore, MD, December Commonwealth Fund, August 2005). 14, 2004). 70 82 Ibid. QAPI efforts are mandated as a condition of Navigation services might also include arranging participation in Medicare Advantage plans and financial support; arranging for transportation to and Medicaid managed care plans. These mandates also from diagnosis and treatment appointments, and child apply to hospitals, rural health clinics, federally care during appointments; coordinating care among qualified health clinics, and nonmedical religious providers (such as screening clinics, diagnosis centers, health care institutions that accept Medicare and and treatment facilities); ensuring coordination of Medicaid. services among medical personnel; ensuring that 71 medical records are available at each scheduled Ibid. CMS provided technical support to plans opting appointment; and coordinating other services to for CLAS initiatives. overcome access barriers encountered during the cancer 72 Supra, note 5. care process. National Institutes of Health, National 73 Cancer Center (NCI), NCI’s Patient Navigation CMS, Quality Assessment and Performance Research Program: Fact Sheet (Bethesda, MD). Improvement (QAPI) Project Completion Report 83 (CMS, Baltimore, MD), accessed at Supra, note 76. http://www.cms.hhs.gov/HealthPlandsGenInfo. 84 E-mail communication with Pauline Lapin, CMS 74 CMS changed project evaluation time frames and Office of Research, Development, and Information, reporting format. Letter to Medicare Advantage Baltimore, MD, April 29, 2008. Organizations from Cynthia Moreno, acting director, 85 Federal Register, Wednesday, August 23, 2006, Quality Assessment Performance Improvement 71(163): Notice 4946. (QAPI) Projects after January 1, 2006 (Baltimore, 86 MD, CMS, January 12, 2005). E-mail communication with Jennie Bowen, senior 75 research analyst, Thomson-Reuters, April 28, 2008. Telephone conversation with Michelle Turano, CMS 87 health insurance specialist, April 11, 2008. Ibid. 76 88 CMS Demonstration Projects and Evaluation Ibid. Reports (Baltimore, MD, CMS) accessed at 89 Supra, note 7. www.cms.hhs.gov/DemoProjectsEvalRpts. 90 77 Ibid. Two examples of these initiatives are the 91 Coordinated Care Demonstration authorized by the 42. C.F.R. sec. 422.122(a) (9) (I). Balanced Budget Act of 1997 to examine whether 92 private sector case management tools adopted by Supra, note 7. health maintenance organizations could be applied to 93 Ibid. fee-for-service beneficiaries, and the Benefits 94 Improvement and Protection Act Disease Management OMB oversees the preparation of the federal budget Demonstration, which is designed to determine and supervises Executive Branch agencies. In helping whether disease management services provided to to formulate the budget, OMB evaluates the Medicare beneficiaries with certain chronic diseases effectiveness of agency programs, policies, and can yield better patient outcomes without increasing procedures. program costs (HHS, Statement by Stuart Guterman 95 OMB estimated the cost of interpreter services for on Eliminating Barriers to Chronic Care Management emergency room, inpatient hospital, outpatient in Medicare before the House Ways and Means physician, and dental visits for LEP persons. OMB), Subcommittee on Health, February 25, 2003). Report to Congress: Assessment of the Total Benefits 78 Public Law 106-554, sections 122(a) and (b). and Costs of Implementing Executive Order No. 13166: Improving Access to Services for Persons with 79 CMS, Solicitation for Proposals for the Cancer Limited English Proficiency (Washington, DC, March Prevention and Treatment Demonstration for Ethnic 14, 2002). and Racial Minorities, Solicitation No. 5036-N (CMS, 96 Baltimore, MD). Provider and physician groups cite much higher costs of providing interpreter services. 80 Ibid. E-mail communication from Timothy Jost, Saturday, May 24, 2008. 18 Improving Access to Care Among Medicare Beneficiaries with Limited English Proficiency: Can Medicare Do More? 97 114 Supra, note 7. This report provides an extensive Ibid. discussion of how Medicare reimbursement policies 115 In 2003, only 4 percent of physicians were African could be modified to pay for language services. Americans and only 5 percent were Hispanic; only 11 98 Ibid. percent of all medical school graduates were from 99 minority groups (supra, note 5). Telephone interview with Elizabeth Goldstein, 116 INSIGHT on the Issues director, CMS Division of Consumer Assessment and Supra, note 7. Healthcare Survey, April 22, 2008. 117 Ibid. 100 CAHPS originally stood for Consumer Assessment 118 Ibid. of Health Plans Study, but the products have evolved 119 beyond health plans so the name was changed. The Supra, note 48. CAHPS program is funded and administered by the 120 U.S. Agency for Healthcare Research and Quality Supra, note 5. (AHRQ), which works closely with a consortium of 121 Ibid. public and private organizations. HHS, Agency for 122 Healthcare Research and Quality, CAHPS Overview, Ibid. accessed at www.cahps.ahrq.gov. 101 Supra, note 95. 102 Insight on the Issues 6, August 2008 The CAHPS Health Plan Survey is administered to commercial, Medicaid, Medicare, and SCHIP plans Written by Lynda Flowers representing more than 120 million enrollees. HHS, Agency for Healthcare Research and Quality, CAHPS AARP Public Policy Institute Overview, accessed at www.cahps.ahrq.gov. 601 E Street, NW, Washington, DC 20049 103 E-mail communications with Michael S. www.aarp.org/ppi Hornbostel, NCBD1@WESAT.com, April 8 and April 202-434-3890, ppi@aarp.org 10, 2008. © 2008, AARP. 104 Supra, note 95. Reprinting with pemission only. 105 Ibid. 106 The initial phase of data collection will last nine months. Hospital-level results will be publicly reported in early 2008 on the Hospital Compare Web site (www.hospitalcompare.hhs.gov), which is also available through a link at www.medicare.gov. After the initial phase, the data will be updated quarterly. HHS, Agency for Healthcare Research and Quality, CAHPS Hospital Survey (H-CAHPS), accessed at www.cahps.ahrq.gov/content/products/HOSP/PROD_ HOSP_Intro.asp. 107 Supra, note 95. 108 Ibid. 109 Ibid. 110 This is not an exhaustive list. 111 E-Mail communication from Timothy Jost, Saturday, May 24, 2008. 112 McBean, A. Marshall, Improving Medicare’s Data on Race and Ethnicity, Medicare Brief No. 15 (Washington, DC, National Academy of Social Insurance, October 2006). 113 Ibid. 19