Since the release of EO 13166 and the OCR Policy Guidance, there has been little movement on the federal front towards improving or increasing language access. As a result, most legislative and regulatory activity to address language barriers in healthcare settings has occurred at the state level. Notable state legislative initiatives have occurred in three broad areas:
continuing education for health professionals,
certification of healthcare interpreters,
reimbursement for language services for Medicaid/SCHIP enrollees.
Continuing Education for Health Professionals
Three states (New Jersey, California, Washington) have enacted requirements that physicians or other health professionals receive training or continuing education that addresses language access and/or cultural competency.19–21 These laws share the goal of educating health professionals on how language barriers can impact access to and the quality of health care received, with the hope that this will increase clinician support and use of language access services for LEP patients. A number of other states are considering these types of laws as well.
A recent review of the evidence suggests that while the literature in this area is overall of poor quality, continuing medical education (CME) appears to be effective to some degree in the acquisition and retention of knowledge, attitudes, skills, behaviors and clinical practice outcomes.22 Importantly, multiple exposures were more effective than a single exposure. This suggests that other states considering similar legislation targeting physician CME may want to consider a model that integrates cultural and linguistic competency across clinical topics and over time rather than instituting a one-time requirement.
Certification of Healthcare Interpreters
Whereas there is general agreement that being bilingual is necessary but not sufficient to serve as a medical interpreter, there are no federal standards governing certification of healthcare interpreters. Most states that have established or are in the process of establishing Medicaid reimbursement for language assistance services have not addressed the issue of certification. While certification is not a prerequisite for reimbursement, addressing the qualifications and competency of medical interpreters and translators—whether through the establishment of training, assessment, and/or certification standards—is essential to ensuring the quality of services provided. The National Council on Interpreting in Health Care has developed National Standards of Practice for Interpreters in Health Care23, but these have not been universally adopted. Given the lack of federally recognized standards, individual states have begun addressing interpreter competency.
Washington was the first state to establish a healthcare interpreter certification program. In the 1980s and early 1990s, its Department of Social and Health Services (DSHS) entered into an agreement with the Office for Civil Rights to ensure that LEP clients received equal access to DSHS services. As a result, the Language Interpreter Services and Translations (LIST) was formed in 1991 to oversee language testing and certification of Department bilingual staff, contracted interpreters, and translators.24
More recently, other states have begun developing their own healthcare interpreter certification standards. In 2006, in response to a legislative mandate, the Oregon Office of Multicultural Health released Standards for Registration, Qualification and Certification of Health Care Interpreters. 25 Similarly, the Indiana legislature has charged an independent commission with developing standards for training and practice for health interpreters and translators.26 North Carolina’s Department of Health and Human Services is working with the Center for New North Carolinians to develop credentialing for interpreters as a pre-condition for initiating Medicaid reimbursement (personal communication M. Terry Hodges, Raleigh Bailey).
Reimbursement for Language Services for Medicaid/SCHIP Enrollees
Arguably, the single biggest barrier to language access for LEP patients is the lack of widespread reimbursement for healthcare interpreting and translation services. Fortunately, Medicaid and the State Children’s Health Insurance Program (SCHIP) have indicated that language services are eligible for federal matching funds.27 However, each state determines whether and how its Medicaid program will provide reimbursement for interpreting, and providers cannot receive payments for these services unless the state chooses to provide them.
Currently, the District of Columbia and 12 states are explicitly paying for interpreter services under their Medicaid/SCHIP programs (Table 1). Most states primarily or exclusively target fee-for-service outpatient visits, although three states also pay for interpreting for inpatient and managed care encounters, and Kansas provides reimbursement only for interpreter services related to Medicaid managed care. The states vary significantly in their reimbursement rates, as well as who is reimbursed. Some contract with interpreters or language agencies directly, whereas others pay the provider, who then pays the interpreter. Only two states—Virginia and Washington—have specific provisions for interpreter competency.28 Two additional states are close to instituting a reimbursement system for interpreter services: Connecticut enacted a law in June 2007 to allow reimbursement29, and as mentioned above, North Carolina is developing state-based interpreter certification as a precursor to reimbursement.
What is most notable about the states that are paying for interpreting for their Medicaid and SCHIP patients is that—with the exception of Hawaii—they all have small LEP populations. According to the 2000 Census, the percentage of LEP persons residing in these continental states ranged from 1.5% for Montana to 7.4% for Connecticut, with the US average being 8.1%.30 Among the states with the highest concentration of LEP residents—California (20%), Texas (13.9%), New York (13%), Hawaii (12.7%)—only Hawaii is currently paying for interpreter services. Whereas the need for language assistance is greatest in these states, the challenge is the commensurately high cost of providing these services.
Nonetheless, there appears to be some movement towards reimbursement in both California and Texas. In December 2006, California’s Department of Health Services convened a Medi-Cal (Medicaid) Language Access Taskforce charged with developing and presenting recommendations on the delivery and reimbursement of language services. Over the course of 1 year, the Taskforce will evaluate models used in other states, examine the various options California has in drawing down federal funds for language services, and develop a cost analysis for each option based on Medi-Cal LEP utilization data. The final report, due on December 31, 2007, will include a recommended system, interpreting and translation quality standards, and an implementation plan with proposed timeline.31 In 2005, Texas enacted legislation directing its Health and Human Services Commission (HHSC) to establish a pilot project for Medicaid reimbursement for language services in five hospital districts. HHSC is exploring specific cost allocation methodologies with the Centers for Medicare and Medicaid Services, and will implement and report on the pilot when this is resolved.32