The enactment of the Affordable Care Act (ACA) expanded health-care coverage for millions of uninsured Americans. Notably, one of the results of the ACA has been a significant increase in the number of insured individuals who are of limited English proficiency (LEP). While federal mandates already require hospitals to offer translation and interpretation services for LEP patients, the ACA extended the penalties against providers who do not provide language services to LEP patients. Patient Protection and Affordable Care Act, 42 U.S.C. § 18001 et seq. (2010). Unfortunately, even with the ACA provisions, there is still a great need for sufficient language services. In order to address the medical needs of an increasing LEP population and the medical errors caused by inadequate language services, it is incredibly important for hospitals to incorporate professional, trained translators and interpreters.
LEP Patients and Medical Risk
Language barriers considerably affect safe and effective health care. Studies confirm that LEP patients are at a higher risk for adverse events than English-speaking patients. Research has identified high-risk clinical scenarios, where adverse events and medical errors are more likely to occur among LEP patients with limited medical literacy than among English-speaking patients. Joint Comm’n, “Overcoming the Challenging of Providing Care to LEP Patients,” (May 2015).
The Joint Commission has criticized hospitals for the lack of professional language services provided to LEP patients. Unfortunately, many hospitals responded to the criticism by employing ad hoc, temporary interpreters and translators who are not trained to provide medically specific interpretations. Id. For obvious reasons, this quick fix did not effectively address the issue.
Patients with limited medical literacy are not a novel issue, but, ironically, the problem has worsened since the enactment of the ACA. Today, more than ever before, LEP individuals make up a significant number of newly insured individuals. Joseph R. Betancourt & Aswita Tan-McGrory, “Creating a Safe, High-Quality Healthcare System for All: Meeting the Needs of Limited English Proficient Populations,” 2 Int’l J. Health Pol’y & Mgmt. 91 (Feb. 2014). This means that there is a desperate need to increase the number of professionally trained translators and interpreters in hospitals in order to address the increasing number of LEP patients coming through hospital doors. By not addressing this inevitable and increasing demand, hospitals are essentially ignoring a large segment of the population with health-care concerns.
LEP Patients and Cultural Issues
An often-overlooked aspect of language barriers within the medical context is cultural competency. LEP patients come from diverse backgrounds with varying cultural beliefs and traditions that may impact the delivery of care. For example, some LEP patients come from cultures where the expression of pain is frowned upon; others come from cultures where their previous form of medical treatment is considered alternative medicine in the United States. Some LEP patients may be reluctant to communicate their medical needs due to specific gender roles, class biases, and other cultural differences. Joint Comm’n, supra.
Because LEP patients may have difficulty communicating their medical needs to a physician based on their beliefs or traditions, it is important for hospitals to incorporate adequate language services. With an increasing number of LEP patients and increasing cultural competency issues, hospitals can strengthen their level of care and delivery by implementing a stronger language services program.
Language Services and Liability Issues
Beyond the potential medically adverse outcomes and access issues for LEP patients, hospitals should also consider issues that directly affect the business aspects of their facility when they have insufficient language services programs. For example, the National Center for Biotechnology Information studies show that improper communication between physicians and LEP patients have led to longer hospital stays when interpreters were not used during admission or discharge; greater risk of surgical delays; a higher readmission rate; informed consent issues; medical errors; and in certain circumstances, fatal outcomes. High readmission rates can lead to penalties, reimbursement issues, lower consumer scores that affect ACA-based initiatives, and compliance and ethics concerns. Other issues can lead to liability problems. Regina Little, “The Stakes of Not Providing Language Services at Your Hospitals,” CYRACOM (Mar. 2, 2015); Kristian Foden-Vencil, “In the Hospital, a Bad Translation Can Destroy a Life,” NPR, Oct. 27, 2014.
The Joint Commission has continuously warned hospitals that LEP individuals who may be affected by certain conditions or may be subject to other vulnerabilities face an increased risk of misunderstanding and, in turn, medical errors. This issue may have significant repercussions if not addressed properly. Recently, medical errors stemming from a lack of adequate language services have led to liability claims against hospitals and physicians. For example, a hospital and physician were sued not only for the failure to utilize a trained interpreter but for failing to translate a medical consent form for the patient and her family. Joint Comm’n, supra. In a recent case in Hawaii, a couple with very limited English proficiency brought their nine-month-old son to a hospital emergency room three separate times, but the hospital never offered to use an interpreter. Their son died ten hours after the couple’s third visit to the emergency room. The couple brought suit against the hospital and physician for their negligent conduct, vicarious liability, and lack of informed consent. Most claims based on language services issues are settled, but they are met with negative media coverage that ultimately impacts the operations of the hospital.
Incentives and Ad Hoc Interpreters and Translators
A difficult aspect of this issue is how the government, whether state or federal, can further incentivize hospitals and providers to utilize professional, trained language services. Under current mandates, hospitals can face civil monetary penalties for the lack of language services to properly care for LEP patients. Little, supra. On the positive reinforcement side, some states reimburse hospitals for their costs in utilizing language services. Thus, it seems that providers have enough incentives to provide adequate language services.
Why, then, is there such a disparity in readmission rates and medical errors between LEP patients and English-speaking patients? In the current regulatory scheme, states are not required to reimburse providers for the cost of language services, but all providers who receive federal funds are obligated to make language services available to LEP patients. Thus, providers sometimes meet regulations by employing ad hoc interpreters and translators, who are cheaper than trained medical interpreters and translators but who are not trained in medical interpretation. Foden-Vencil, supra; Michelle Andrews, “Hospitals Struggle to Provide Translators for Patients Who Don’t Speak English,” Wash. Post, May 21, 2012.
Providers using untrained, ad hoc interpreters are essentially placing a bandage over the real problem. Studies show that communication and medical errors were significantly reduced in hospitals that employed professionally trained interpreters and translators. Andrews, supra.
To address the increasing demand of providing care to LEP patients, who are at higher risk for adverse medical results than their English-speaking counterparts, hospitals need to utilize professional, trained interpreters and translators. The point of contention ultimately centers on the governmental requirement for providers who receive federal funds to offer language services while knowing that such services may not be reimbursed. Andrews, supra. This leads to the employment of affordable ad hoc interpreters and translators, who do not have the requisite medical training to facilitate communication between LEP patients and their providers.
If regulations required reimbursement of language services as part of the underlying direct service, providers would have a large incentive to utilize professionally trained interpreters and translators. This would reduce the adverse medical results that the LEP community currently faces and instill confidence in the rapidly expanding LEP population—which currently may be reluctant to step through hospital doors—that medical institutions will be able to adequately address their concerns and needs.
Hanna Kim is a JD candidate (2017) at the Southern Methodist University Dedman School of Law.
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