Quality health care relies upon communication in a patient's preferred language. Language access in health care occurs when individuals are: (1) Welcomed by providers regardless of language ability; and (2) Offered quality language services as part of their care. Federal law generally requires access to health care and quality language services for deaf and Limited English Proficient (LEP) patients in health care settings, but these patients still find it hard to access health care and quality language services.
Meanwhile, several states are implementing Medicaid Accountable Care Organization (ACO) initiatives to reduce health care costs and improve health care quality. Alternative payment methods used in these initiatives can give Accountable Care Organizations more flexibility to design linguistically accessible care, but they can also put ACOs at increased financial risk for the cost of care. If these new payment methods do not account for differences in patient language needs, ACO initiatives could have the unintended consequence of rewarding ACOs who do not reach out to deaf and LEP communities or offer quality language services.
We reviewed public documents related to Medicaid ACO initiatives in six states. Some of these documents address language access. More could be done, however, to pay for language access efforts. This article describes Medicaid ACO initiatives and explores how different payment tools could be leveraged to reward ACOs for increased access to care and quality language services. We find that a combination of payment tools might be helpful to encourage both access and quality.
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References
1.
The United States Census Bureau defines LEP individuals as individuals who (1) speak a language other than English at home and (2) speak English less than very well.
2.
Throughout this report we use the capitalized term “Deaf” to refer to individuals who are part of a cultural/linguistic group. We use the lowercase term “deaf” to refer to the group of people with the physical condition of deafness, and who may or may not belong to the cultural linguistic Deaf group.
3.
See L. S.Karliner, E. A.Jacobs, A. H.Chen, and S.Mutha, “Do Professional Interpreters Improve Clinical Care for Patients with Limited English Proficiency? A Systematic Review of the Literature,”Health Services Research42, no. 2 (2007): 727-754; Q. Ngo-Metzger et al., “Providing High-Quality Care for Limited English Proficient Patients: The Importance of Language Concordance and Interpreter Use,” Journal of General Internal Medicine 22, Issue 2 Supplement (2007): 324-330; D. Reeves and B. Kokoruwe, “Communication and Communication Support in Primary Care: A Survey of Deaf Patients,” Audiological Medicine 3, no. 2 (2005): 95–107.
4.
Id.
5.
See M. J.Gournaris, S.Hamerdinger, and R. C.Williams, “Creating a Culturally Affirmative Continuum of Mental Health Services,” in N. S.Glickman, ed., Deaf Mental Health Care (New York: Routledge, 2013): 138-180, at 139.
6.
G.Gonzales, State Estimates of Limited English Proficiency (LEP) by Health Insurance Status (The Health Access Data Assistance Center May 2014), available at <http://www.rwjf.org/content/dam/farm/reports/issue_briefs/2014/rwjf414189> (last visited July 25, 2016). LEP population estimates refer to individuals who are five years old or older. The continued Medicaid expansion under the ACA will add to the number of LEP individuals enrolled in Medicaid. Kaiser Family Foundation, Overview of Health Coverage for Individuals with Limited English Proficiency (August 1, 2012), available at <https://kaiserfamilyfoundation.files.wordpress.com/2013/01/8343.pdf> (last visited July 25, 2016).
7.
M. K.Youdelman, “The Medical Tongue: U.S. Laws and Policies on Language Access,”Health Affairs27, no. 2 (2008).
8.
For an estimate of the number of deaf individuals in the United States, see R. E.Mitchell, “How Many Deaf People Are in the United States? Estimates from the Survery of Income and Program Participation,”Journal of Deaf Studies and Deaf Education11, no. 1 (2006): 112-119 (Estimating that about 1 million Americans are functionally deaf. This study looked at functional deafness, which is defined as unable to hear a normal conversation at all, even with the help of a hearing aid.)
9.
See N. S.Glickman, ed., Deaf Mental Health Care (New York: Routledge, 2013): at 6 (“Deaf people themselves, like other minority persons, hold the full range of opinions regarding what it means to be a minority. Some identify strongly with the Deaf Community. Others identify with hearing people or with other minority communities. Others are bicultural or multicultural. These identities often develop and change over time”).
10.
N. S.Glickman, “Do You Hear Voices? Problems in Assessment of Mental Status in Deaf Persons with Severe Language Deprivation,”Journal of Deaf Studies and Deaf Education12, no. 2 (2007): 127-147, at 129.
11.
C.Dewane, “Hearing Loss in Older Adults – Its Effect on Mental Health,”Social Work Today10, no. 4 (2010): 18. See S. Barnett and P. Franks, “Health Care Utilization and Adults Who are Deaf: Relationship with Age at Onset of Deafness,” Health Services Research Journal 37, no. 1 (2002):103–118.
12.
Certified Deaf Interpreters are individuals who have specialized training in the assistance of deaf individuals who face language barriers, for example not speaking ASL very well. Certified Deaf Interpreters usually have native fluency in ASL and are experienced with other visual tools to enhance communication. Certified Deaf Interpreters are typically Deaf themselves. See Registry of Interpreters for the Deaf, Certified Deaf Interpreter Certification, available at <http://www.rid.org/rid-certification-overview/cdi-certification/> (last visited July 25, 2016).
13.
See Youdelman, supra note 7; Agency for Healthcare Research and Quality, United States Department of Health and Human Services, Improving Patient Safety Systems for Patients with Limited English Proficiency: A Guide for Hospitals (2012).
14.
Id.
15.
42 USC §§2000d - 2000d-7 (2002); 45 CFR Part 80. For Title VI enforcement actions undertaken by the United States Department of Health and Human Services' Office of Civil Rights, see United States Department of Health and Human Services, Recent Civil Rights Resolution Agreements & Compliance Reviews, available at <http://www.hhs.gov/ocr/civil-rights/activities/agreements/index.html> (last visited July 25, 2016).
16.
Americans with Disabilities Act, 42 USC §12182 (1990); Section 504 of the Rehabilitation Act of 1973, 29 USC §794 (2014). See S.Rosenbaum, “The Americans with Disabilities Act in a Health Care Context,” in M. J.Field and A. M.Jette, eds., The Future of Disability in America (Washington, D.C.: National Academy Press, 2007).
17.
K.Fiscella, P.Franks, M. P.Doescher, and B. G.Saver, “Disparities in Health Care by Race, Ethnicity, and Language among the Insured: Findings from a National Sample,”Medical Care40, no. 1 (2002): 52-59; L. R. DeCamp, H. Choi, and M. M. Davis, “Medical Home Disparities for Latino Children by Parental Language of Interview,” Journal of Health Care for the Poor and Underserved 22, no. 4 (2011): 1151-1166; see Barnett, supra note 11.
18.
See Fiscella, supra note 17 (sample included individuals with private insurance or Medicaid).
19.
See Barnett, supra note 11.
20.
42 USC §§2000d - 2000d-7; 45 CFR Part 80.
21.
Americans with Disabilities Act, 42 USC §12182.
22.
42 CFR §438.10(c). Some ACOs are considered to be subject to the Medicaid managed care regulations.
23.
See G.Floreset al., “Access to Hospital Interpreter Services for Limited English Proficient Patients in New Jersey: A Statewide Evaluation,”Journal of Health Care for the Poor and Underserved19, no. 2 (2008): 391-415; D. W. Baker et al., “Use and Effectiveness of Interpreters in an Emergency Department,” Journal of the American Medical Association 275, no. 10 (1996): 783-788; L. R. DeCamp et al., “Changes in Language Services Use by US Pediatricians,” Pediatrics 132, no. 2 (2013): e396–406.
24.
DeCamp, supra note 23; G.Flores, M. B.Laws, S. J.Mayo, B.Zuckerman, M.Abreu, L.Medina, and E. J.Hardt, “Errors in Medical Interpretation and their Potential Clinical Consequences in Pediatric Encounters,”Pediatrics111, no. 1 (2003): 6-14 (The use of untrained interpreters is associated with medical errors). The use of untrained interpreters is discouraged by the United State Department of Health and Human Services' National Standards for Culturally and Linguistically Appropriate Services (CLAS) in Health and Health Care.
25.
See J.Teitelbaum, L.Cartwright-Smith, and S.Rosenbaum, “Translating Rights into Access: Language Access and the Affordable Care Act,”American Journal of Law and Medicine38, nos. 2-3 (2012): 348-373, at 361.
26.
R.Weech-Maldonadoet al., “Racial and Ethnic Differences in Parents' Assessments of Pediatric Care in Medicaid Managed Care,”Health Services Research36, no. 3 (2001): 575-594(finding that, among a few Medicaid managed care plans, LEP status was associated with worse patient assessment of pediatric experience); L. R. Snowden et al., “Limited English Proficient Asian Americans: Threshold Language Policy and Access to Mental Health Treatment,” Social Science and Medicine 72, no. 2 (2011): 230-237; M. Moore et al., “Availability of Out-patient Rehabilitation Services for Children After Traumatic Brain Injury,” American Journal of Physical Medicine and Rehabilitation 95, no. 3 (2016): 204–213.
27.
Moore, supra note 26.
28.
Snowden, supra note 26.
29.
United States Department of Health and Human Services, “National Standards for Culturally and Linguistically Appropriate Services (CLAS) in Health and Health Care,” 78 Federal Register 58539 (September 24, 2014).
30.
42 USC §18116.
31.
45 CFR §92.201.
32.
Id. The regulations also require covered entities to provide tag-lines in significant mailings and translation. 45 CFR §92.8
33.
42 CFR §438.68. The new rule also requires the state to set language access rules based on the languages prevalent in each managed care program in addition to those prevalent statewide, which may have the effect of increasing the languages in which written documents have to be translated. 42 CFR §438.10(c). Written material that is required to be translated is identified and a new requirement regarding taglines added. 42 CFR §438.10(c). As was the case before the final rule, oral interpretation is required in all languages for enrollees; the rule clarifies that the state must make oral interpretation available to potential enrollees as well. 42 CFR §438.10(c). Provider directories must now include a provider's linguistic capabilities (this information was previously required to be provided by the state upon request). 42 CFR §438.10(h).
34.
L.Ku and G.Flores, “Pay Now or Pay Later: Providing Interpreter Services in Health Care,”Health Affairs24, no. 2 (2005): 435-444(“Although providers are obligated to offer these services to LEP patients, lack of payment deters their actual availability.”)
35.
DeCamp, supra note 23; see also Snowden, supra note 26 (Adding more Medicaid language assistance resulted in greater mental health care access by Asian LEP patients in California).
36.
M.Youdelman, Medicaid and SCHIP Reimbursement Models for Language Services (2009 update) (National Health Law Program2009).
37.
Ku, supra note 34.
38.
E. A.Jacobs, D. S.Shepard, J. A.Suaya, and E. L.Stone, “Overcoming Language Barriers in Health Care: Costs and Benefits of Interpreter Services,”American Journal of Public Health94, no. 5 (May 2004): 866-869; B. Blanchfield, S. Gazelle, M. Khaliif, I. Arocha, and K. Hacker, “A Framework to Identify the Costs of Providing Language Interpretation Services,” Journal of Health Care for the Poor and Underserved 22, no. 2 (May 2011): 523–531.
39.
See Karliner, supra note 3; A.John-Baptisteet al., “The Effect of English Language Proficiency on Length of Stay and In-Hospital Mortality,”Journal of General Internal Medicine19 (2004): 221-228; Blanchfield, supra note 38.
40.
Flores, supra note 24.
41.
See, e.g., National Health Law Program, The High Costs of Language Barriers in Medical Malpractice (2010).
42.
M.Lindholm, J. L.Hargraves, W. J.Ferguson, and G.Reed, “Professional Language Interpretation and Inpatient Length of Stay and Readmission Rates,”Journal of General Internal Medicine27, no. 10 (2012): 1294-1299(use of professional interpreters associated with a shorter length of stay (by one day)). LEP patients stay in the hospital longer than English-speaking patients with similar conditions. See John-Baptiste, supra note 39 (LEP patients stayed between 0.7 and 4.3 days longer than English-speaking patients).
43.
Id. (Lindholm et al.). LEP patients have a higher rate of readmission within 30 days of discharge compared to their English-speaking counterparts. L. S.Karliner, S. E.Kim, D. O.Meltzer, and A. D.Auerbach, “Influence of Language Barriers on Outcomes of Hospital Care for General Medicine Inpatients,”Journal of Hospital Medicine5, no. 5 (2010): 276–282.
44.
42 USC §1395ww(q) (2015); see J. R.Betancourt, A.Tan-McGrory, and K.S.Kenst, “Guide to Preventing Readmissions among Racially and Ethnically Diverse Medicare Beneficiaries,”Prepared by the Disparities Solutions Center, Mongan Institute for Health Policy at Massachusetts General Hospital, Baltimore, MD, Centers for Medicare & Medicaid Services Office of Minority Health (September 2015) (“In FY 2016, as required by legislation, hospitals can now lose as much as three percent of their Medicare payments under the program.”). Off-site interpreting, such as through telephonic and video remote interpreting, may also reduce the cost of language services. E. A. Jacobs et al., “Shared Networks of Interpreter Services, at Relatively Low Cost, Can Help Providers Serve Patients with Limited English Skills,” Health Affairs 30, no. 10 (2011): 1930-1938. Such technology should be used with caution, however, because there are situations where an in-person interpreter leads to a better outcome. See, e.g., National Association of the Deaf, Advocacy Statement: Use of VRI in the Medical Setting (2008).
45.
See Jacobs, supra note 38; Blanchfield, supra note 38.
46.
E. A.Jacobset al., “Impact of Interpreter Services on Delivery of Health Care to Limited-English Proficient Patients,”Journal of General Internal Medicine16, no. 7 (2001): 468-74; L. C. Hampers and J.E. McNulty, “Professional Interpreters and Bilingual Physicians in a Pediatric Department: Effect on Resource Utilization,” Archives of Pediatric and Adolescent Medicine 156, no. 11 (2002): 1108-1113 (though other services were less likely for patients with interpreter services, the chances of being admitted were greater with an interpreter compared to the chances without an interpreter).
47.
D.Muhlestein, “Continued Growth of Public and Private Accountable Care Organizations,”Health Affairs blog (February 19, 2013).
48.
The term ACO is evolving as Medicare, Medicaid, and commercial payers implement ACO initiatives. Throughout this paper, we use the term “ACO” to refer to a provider-led entity contracted with a payer to provide care for a population and that engages in some form of alternative payment method. Alternative payment methods include global payments, shared savings, and bundled payments.
49.
42 USC §1396b (2010); Centers for Medicare and Medicaid Services, Medicaid & CHIP: February 2016 Monthly Applications, Eligibility Determinations and Enrollment Report (April 26, 2016). This number is subject to change with the continued implementation of the ACA.
50.
See, e.g., 42 USC §1315, 42 USC §1396n, and 42 USC §1396u-2.
51.
S. L.Kocot, C.Dang-Vu, R.White, and M.McClellan, “Early Experiences with Accountable Care in Medicaid: Special Challenges, Big Opportunities,”Population Health Management16, Supplement 1 (2013): S-4-S-11.
52.
See Kocot, supra note 51.
53.
Id.
54.
Families USA, Accountable Care Organizations in Medicaid: Challenges and Opportunities for Advocates (2013).
55.
See E. J.Emanuel, “Why Accountable Care Organizations Are Not 1990s Managed Care Redux,”JAMA307, no. 21 (2012): 2263–2264.
56.
Alabama's Regional Care Organizations must show that its payment method aligns with the program's incentives. Ala. Admin. Code 560-X-62.10. In Illinois, the ACO must share savings with primary care providers. Illinois Department of Health-care and Family Services, Illinois Solicitation for Accountable Care Entities (2014) (“Illinois 2014 Solicitation”) at 3.1.6.1. Oregon CCOs are required to provide patient-centered primary care homes with “training and tools necessary to communicate in a linguistically and culturally appropriate fashion with Members and their families.” Oregon Health Authority, Request for Applications for Coordinated Care Organizations (2012)(“Oregon 2012 RFA”) at Appendix A, A.3.1.b.
57.
For states whose Medicaid ACOs are subject to managed care regulations, states are restricted in how ACOs can direct payments and incentives to ACO providers. 42 CFR §438.6(c).
58.
We reviewed publicly available state legislation, regulation, procurement documents, contracts, and other materials. Reviewed procurement materials included: Colorado Department of Health Care Policy and Financing, Request for Proposals: Regional Care Collaborative Organizations for the Accountable Care Collaborative Program 1 (August 2010) (“Colorado 2010 RFP”); Illinois 2014 Solicitation; Maine Accountable Care Communities State Plan Amendment (2014) (“Maine 2014 SPA”); Maine Department of Health and Human Services, Request for Applications: MaineCare Accountable Communities Initiative (2013)(“Maine 2013 RFA”); Minnesota Department of Human Services Health Care Administration, Request for Proposals for Qualified Grantee(s) to Provide Health Care Services to Medical Assistance and MinnesotaCare Enrollees Under Alternative Payment Arrangements Through the Integrated Health Partnership (IHP) Demonstration (2015)(“Minnesota 2015 RFP”); Oregon 2012 RFA.
59.
See Kocot, supra note 51.
60.
Id.
61.
See Agency for Healthcare Research and Quality 2012, supra note 13; Oregon 2012 RFA at Appendix F; A.Shihet al., Organizing the U.S. Health Care Delivery System for High Performance (Commonwealth Fund 2008).
62.
C. E.Pollack and K.Armstrong, Commentary, “Accountable Care Organizations and Health Care Disparities,”JAMA305, no. 16 (2011): 1706–1707.
63.
See A.Chien, M. H.Chin, A. M.Davis, and L. P.Casalino, “Pay for Performance, Public Reporting, and Racial Disparities in Health Care: How Are Programs Being Designed?”Medical Care Research and Review64, Supplement 5 (2007): 283S-304S; Pollack, supra note 62.
64.
ACO assignment usually occurs based on where a patient sought care in the past.
65.
Alabama Medicaid Agency, Section 1115 Demonstration Proposal: Alabama Medicaid Transformation 43 (May 2014); Illinois 2014 Solicitation at Attachment G; Illinois 2014 Solicitation at Addendum #1 p. 27; Oregon 2012 RFA at Appendix F.
66.
Minnesota 20l5 RFP at 8. Minnesota's Medicaid ACO initiative aligns its quality metrics with a statewide system. Minnesota 2015 RFP at 12, 68. A new statute requires the statewide system to stratify for race, ethnicity, language, and country of origin. By 2017, the system is required to risk adjust for these factors to the extent that they “are correlated with health disparities and have an impact on performance on cost and quality measures.” Minn. Stat. § 62U.02, as amended by Chapter 71 of the Minnesota Laws of 2015.
67.
Alabama Medicaid Agency, Section 1115 Demonstration Proposal: Alabama Medicaid Transformation 43 (May 2014); Illinois 2014 Solicitation at Attachment G; Illinois 2014 Solicitation at Addendum #1 p. 27; Oregon 2012 RFA at Appendix F.
68.
Illinois 2014 Solicitation at Attachment G; Maine 2014 SPA attachment 4.19-B Page 7a; Maine 2013 RFA at 15; Minnesota 20l5 RFP at 8, 12, 68; see note 69.
69.
Id.
70.
Alabama Medicaid Agency, Section 1115 Demonstration Proposal: Alabama Medicaid Transformation 43 (May 2014); Illinois 2014 Solicitation at Attachment G; Illinois 2014 Solicitation at Addendum #1 p. 27; Oregon 2012 RFA at Appendix F.
71.
As of 2009, Maine and Minnesota Medicaid programs paid for language services fee-for-service. It is unclear whether that practice continues for Medicaid ACO members in those two states. Youdelman, supra note 36.
72.
For an example of language services paid fee-for-service and “carved out” of Medicaid managed care, see National Health Law Program, How Can States Get Federal Funds to Help Pay for Language Services for Medicaid and CHIP Enrollees? (2010): 6 (States have the ability to carve out language services from bundled or capitation rates).
73.
See National Association of Public Hospitals and Health Systems, Medicaid and SCHIP Funding for Language Services (2007).
74.
See Families USA, supra note 54.
75.
Alabama, Colorado, and Oregon offered quality incentive payments if certain quality benchmarks were met. Alabama Medicaid Agency, Section 1115 Demonstration Proposal: Alabama Medicaid Transformation 14, 44 (May 2014); Colorado 2010 RFP at 49, 56, 58; Oregon 2012 RFA at Appendix F, Section 7; Oregon 1115 Demonstration Special Term and Condition 35 (September 4, 2015). Illinois, Maine, and Minnesota made a portion of shared savings payments contingent on meeting quality benchmarks. Illinois 2014 Solicitation at 3.1.6.4.3, Addendum 1 p. 28; Maine 2014 SPA Attachment 4.19-B at 7d and 7e; Maine 2013 RFA at 23; Minnesota 2015 RFP at 9.
National Quality Forum measures 1824:L1A and 1821:L2, respectively. Quality measures appear to be more developed for foreign language populations than for deaf populations.
See Chien, supra note 63; D. P.Andrulis and N. J.Siddiqui, “Health Reform Holds Both Risks and Rewards for Safety-Net Providers and Racially and Ethnically Diverse Patients,”Health Affairs30, no. 10 (2011): 1830-1836; Pollack, supra note 62.
85.
S. H.Sheingold, R.Zuckerman, and A.Shartzer, “Understanding Medicare Hospital Readmission Rates and Differing Penalties between Safety-Net and Other Hospitals,”Health Affairs35, no. 1 (2016): 124-131(“Based on the results of this study, we cannot determine to what extent this fact reflects quality differences that can reasonably be addressed by hospitals, and to what extent it reflects other unmeasured patient and hospital characteristics that affect outcomes and are beyond hospitals' control.”)
86.
American Hospital Association, Letter to HHS Secretary Berwick Regarding Risk Adjustment of Quality Measures in the CMS Readmission Reduction Program (2011). See also L.Gillespie, “Hospitals Push Medicare to Soften Readmission Penalties in Light of Socio-Economic Risks,”Modern Healthcare (May 21, 2016).
87.
National Quality Forum, Risk Adjustment for Socioeconomic Status or Other Sociodemographic Factors (2014). The National Quality Forum recommended that risk adjustment never occur for process measures, because ACOs should follow the same care process regardless of patient characteristics. Before risk adjusting measures, the National Quality Forum recommends that policymakers show a conceptual and measured link between the characteristic and lower quality scores.
88.
See National Quality Forum, supra note 87.
89.
Colorado 2010 RFP at 14; Maine 2014 SPA attachment 3.1 Page 12a; Maine 2013 RFA at 19–20.
90.
Section 1115 Demonstration Proposal: Alabama Medicaid Transformation 10 (May 2014); Illinois 2014 Solicitation at Attachment 1 p. 5; Oregon 2012 RFA at Appendix G, Exhibit B, Part 4 (3)(a)(6).
91.
See E.Edwards and M.Youdelman, Medicaid Managed Care Model Provisions: Accessibility & Language Access(National Health Law Program 2014): 3. See, e.g., Or. Rev. Stat. 414.625(k) (G) (2013); Or. Admin. Rules 410-141-3015(15)(2014). States can make sure that Medicaid managed care regulations related to network adequacy are enforced in their states.
92.
See, e.g., Oregon's out-of-network policy. Oregon 2012 RFA at Appendix G, Exhibit B, Part 4 (3)(a)(6).
93.
Colorado 2010 RFP at 36; 305 Ill. Comp. Stat. 5/5-30(a) (2013); Or. Rev. Stat. 414.625(2)(e) (2013); Or. Admin. Rules 410-141-3320(1)(p) (2012). In Oregon, CCO members have the right to receive “linguistically appropriate” services and “certified or qualified health care interpreter services.” CCO members must have access to people who speak their language and can help guide them through the health care system. Illinois ACE applicants will be judged in part on cultural competency.
